Madras High Court
M. Karuppuraj .. Review vs M. Ganesan on 6 January, 2020
Author: R. Subbiah
Bench: R.Subbiah, T. Krishnavalli
Rev.Appln No. 71 of 2019
THE HIGH COURT OF JUDICATURE AT MADRAS
Order reserved on : 26.09.2019
Order Pronounced on : 06-01-2020
CORAM
THE HONOURABLE MR.JUSTICE R.SUBBIAH
and
THE HONOURABLE MRS. JUSTICE T. KRISHNAVALLI
Review Application No. 71 of 2019
and
C.M.P. Nos. 12389 of 2019
---
M. Karuppuraj .. Review Applicant
Versus
M. Ganesan .. Respondent
Review Application filed under Order XLVII Rule 1 read with Section 114 of
the Code of Civil Procedure to review the Judgment and Decree dated 27.11.2017
passed in A.S. No. 94 of 2010 on the file of this Court.
For Reivew Applicant : Mr. V.G. Suresh Kumar
For respondents : Mr. G. Masilamani, Senior Advocate
for Mr. R. Thiagarajan
ORDER
R. Subbiah, J Seeking to review the Judgment and Decree dated 27.11.2017 passed by this Court in A.S. No. 94 of 2010, the respondent therein has come forward with this Review Application.
2. For the sake of convenience, the respondent in this Review Applicant herein shall be referred to as 'plaintiff' and the review applicant shall be referred to as http://www.judis.nic.in 'defendant', as has been arrayed in the suit.
1\26 Rev.Appln No. 71 of 2019
3. The respondent herein, as plaintiff, has instituted the suit in O.S. No. 562 of 2006 on the file of the I Additional District Court, Coimbatore for specific performance of the agreement dated 11.04.2006. The suit was dismissed by the trial court by a judgment and decree dated 25.08.2009. Challenging the same, the plaintiff/respondent herein has filed A.S. No. 94 of 2010 before this Court. In the appeal, even though notice was served on the review applicant/defendant on 09.04.2010, he has not chosen to appear before this Court to defend the appeal. However, the hearing of the appeal was periodically adjourned for about 7 1/2 years from 09.04.2010 to 14.11.2017 and on all those hearings, there was no representation for the review applicant/defendant. Therefore, by the Judgment and Decree dated 27.11.2017, this Court allowed the appeal preferred by the respondent/plaintiff and directed him to deposit the balance sale consideration before the trial court. Pursuant to the Judgment and Decree passed by this Court on 27.11.2017 in A.S. No. 94 of 2010, the respondent/plaintiff herein has deposited the balance sale consideration of Rs.12,60,000/- to the credit of the suit on 25.01.2018 before the trial court. Thereafter, the respondent/plaintiff has filed E.P. No. 6 of 2018 in O.S. No. 565 of 2006 on 03.03.2018. Even in the Execution Petition, notice was ordered to the review applicant/defendant on 26.04.2018 after which he has entered appearance on 25.07.2018 through an advocate by name K. Saravanakumar. Thereafter, the Execution Petition was posted for filing counter of the review applicant/defendant on various dates, but the counter affidavit has not been filed till 21.02.2019. Therefore, the Execution Petition was posted to 28.02.2019 for filing draft sale deed and on that date, a draft sale deed was also filed. Subsequently, the Execution Petition was posted for further proceedings on http://www.judis.nic.in 2\26 Rev.Appln No. 71 of 2019 various dates till 11.03.2019, on which date, a fair sale deed was also filed by the respondent herein before the trial court. While so, on 11.03.2019, the review applicant has filed the present review application before this Court with an application in CMP No. 2109 of 2019 for condoning the delay of 344 days in filing the review application. On 19.03.2019, the CMP No. 2109 of 2019 was allowed by the Division Bench of this Court which directed the respondent/plaintiff to file a counter in the Review Application. At this stage, on 28.03.2019, the trial Court executed a sale deed in favour of the respondent/plaintiff on behalf of the review applicant/defendant and on 02.04.2019, the Execution Petition No. 6 of 2018 was allowed. Thereafter, on 12.04.2019, the respondent/plaintiff has filed EP No. 80 of 2019 for delivery of possession of the suit property. On coming to know about the filing of the EP No. 80 of 2019, the review applicant herein has taken up an application in CMP No. 12839 of 2018 in Review Application No. 71 of 2019 and this Court granted interim stay of the execution proceedings on 18.06.2019. Now, the Execution Petition filed by the respondent/plaintiff is pending for deliverance of the property inasmuch as this Court has granted interim stay of all further proceedings in the Execution Petition.
4. Before venturing further, we feel that it is essential to deal with the nature of the suit filed before the trial court and the defence taken by the review applicant/defendant herein.
5. According to the plaintiff, respondent herein, the review applicant/ defendant is the owner of the property described in the plaint. The plaintiff evinced http://www.judis.nic.in 3\26 Rev.Appln No. 71 of 2019 interest to purchase the property and it was also agreed by the defendant. An agreement dated 11.04.2006 was executed by the defendant in favour of the plaintiff in which the sale consideration was mentioned as Rs.16,20,000/-. On the date of execution of the agreement, the plaintiff paid a sum of Rs.3,60,001/- as advance and the balance sale consideration is to be paid at the time of execution of the sale deed. As per the agreement dated 11.04.2006, time was the essence of contract and three months time was indicated in the agreement for performance of the contract. At the same time, one of the conditions indicated in the agreement is that the defendant/owner of the property has to vacate the tenants in the property and handover the vacant possession to the purchaser/plaintiff.
6. According to the plaintiff, even before expiry of three months period, the plaintiff requested the defendant to comply with the conditions incorporated in the agreement of sale with respect to evicting the tenants and expressed his readiness and willingness to pay the balance sale consideration and get the sale deed executed in his favour. However, according to the plaintiff, the defendant postponed the execution of the sale deed by assigning one reason or the other. In such circumstances, in order to assert his right as an agreement holder, the plaintiff sent a notice dated 01.07.2006 to the defendant calling upon him to vacate the tenants and to execute the sale deed in his favour by receiving the balance sale consideration. On receipt of the notice dated 01.07.2006 on 05.07.2006, the defendant sent a telegram dated 06.07.2006 to the effect that he is ready to execute the sale deed on 07.07.2006 at 10.00 am. According to the plaintiff, the one day time indicated by the defendant in the telegram dated 06.07.2006 for http://www.judis.nic.in 4\26 Rev.Appln No. 71 of 2019 execution of the sale deed is too shorter a period inasmuch as he could not purchase the requisite stamp papers within the given time. Further, in the telegram dated 06.07.2006, the defendant did not indicate that he had vacated the tenants from the property. Therefore, on 07.07.2006, the plaintiff sent a reply telegram stating that since there is no indication in the telegram dated 06.07.2006 about the vacation of the tenants from the property, the defendant had committed breach of the conditions contained in the agreement dated 11.04.2006. Therefore, the plaintiff called upon the defendant to vacate the tenant first and then inform him about the date and time of execution of the sale deed. This reply telegram was received by the defendant on 09.07.2006, however, he has not chosen to send any further reply thereof. Therefore, on 09.11.2006, the plaintiff issued a notice calling upon the defendant to vacate the tenants within 15 days and specify a date for execution for the sale deed. In the notice dated 09.11.2006, reference was also made to the fact that the plaintiff is having ready money with him for paying the balance sale consideration. Even though the notice dated 09.11.2006 was received by the defendant, he has not sent any reply. In such circumstances, the plaintiff had instituted the suit in O.S. No. 562 of 2006 for specific performance of the agreement dated 11.04.2006.
7. Repudiating the plaint averments, a written statement was filed stating that as per the agreement dated 11.04.2006, the plaintiff has to perform his part of the obligation within three months, but he miserably failed to do so. The plaintiff was not having ready money with him to pay the balance sale consideration. Even in the plaint, there is no specific plea raised with respect to readiness and http://www.judis.nic.in 5\26 Rev.Appln No. 71 of 2019 willingness to deposit the balance sale consideration nor the plaintiff filed bank statement or passbook to show his bonafides. The defendant has also made reference to the two notices sent by the plaintiff and contended that the defendant had vacated the tenants in the suit property and it was also known to the plaintiff, however, only in order to postpone the payment of balance sale consideration, the notices were sent. In effect, it was contended that the claim made by the plaintiff for specific performance of agreement dated 11.04.2006 is time-barred and he is not entitled for the relief prayed for in the plaint.
8. Before the trial court, the plaintiff examined himself as PW1 and one V.Ravi was examined as PW2. Exs. A1 to A17 were marked as exhibits on the side of the plaintiff. On behalf of the defendant, the defendant examined himself as DW1 and one M. Balakrishnan was examined as DW2, but no document was marked. The trial court, on considering the oral and documentary evidence dismissed the suit by concluding that the plaintiff has not chosen to purchase the property in as is where is condition. The absence of election to purchase the property with the tenants would clearly indicate that the plaintiff was not mentally prepared to purchase the property with the tenant. Further, the willingness to purchase the property, with the tenant, has also not been pleaded and the plaintiff has not elected to purchase the property as it exists. In such circumstances, the trial court, while dismissing the suit, held that even though the plaintiff has not sought for alternative relief of refund of amount, interest of justice demands that the defendant must be directed to refund the advance amount. Accordingly, the trial court directed the defendant to refund the sum of Rs.3,60,001/- received as http://www.judis.nic.in 6\26 Rev.Appln No. 71 of 2019 advance with interest at the rate of 18% per annum from the date of agreement till the date of realisation, within two months from the date of judgment.
9. Assailing the Judgment and Decree of the trial court, the respondent herein has filed the Appeal Suit. In the appeal suit, as indicated above, notice was served on the Review applicant/defendant, but he has not entered appearance. The Appeal suit was continuously listed on various dates from 19.03.2012 to 14.11.2017. During the pendency of the Appeal Suit, the respondent herein has filed an affidavit electing to purchase the suit property with tenants. In the light of the above submission of the respondent and the fact that the Review Applicant did not contest the Appeal Suit inspite of service of notice on him, the Division Bench of this Court allowed the Appeal Suit on 27.11.2017. For clarity, the relevant portion of the Judgment dated 27.11.2017 passed in Appeal Suit No. 94 of 2010 reads as follows:-
"12. Considering the clear admission made on the side of the defendant to the effect that in between plaintiff and defendant, Ex.A1 has been created and also considering that the defendant has received advance amount of Rs.3,60,001/- and also on the basis of the remaining documents filed on the side of the plaintiff, the Court can easily discern that from inception of Ex.A1, the plaintiff has always been ready and willing to perform his part of the contract. As mentioned supra, the trial court has negatived the relief of specific performance, simply on the ground that the defendant has not vacated the tenants from the suit property. Even for the sake of argument that the suit property is being enjoyed by the tenants, the same is not an impediment for granting relief of specific performance and further, during pendency of the present appeal suit, on the side of the appellant/plaintiff, an affidavit has also been filed, wherein, it is clearly averred to the effect that the appellant/plaintiff is ready to get a sale deed registered from the defendant, even though tenants are not vacated.
13. Considering the over all circumstances available on http://www.judis.nic.in record and also on the basis of discussion made earlier, this Court 7\26 Rev.Appln No. 71 of 2019 is of the view that the relief of specific performance can easily be granted in favour of the appellant/plaintiff. The trial court, without considering the readiness and willingness on the part of the appellant/plaintiff, from the inception of Ex.A1, has erroneously negatived the relief of specific performance. In view of the discussion made earlier, this Court has found considerable force in the contentions put forth on the side of the appellant/plaintiff and altogether, the present appeal suit deserves to be allowed."
10. It is this Judgment and Decree dated 27.11.2017 passed by the Division Bench of this Court in A.S. No. 94 of 2010 which is sought to be reviewed by the review applicant.
11. The learned counsel for the Review Applicant would vehemently contend that before the trial court, the respondent herein refused to get the sale deed executed in his favour by citing that the tenants in the suit property has not been vacated and it is breach of one of the conditions indicated in the agreement of sale dated 11.04.2006. The trial court also rendered a specific finding that the respondent herein is not mentally prepared to purchase the suit property with the tenants and he only want to purchase the suit property after the tenants are vacated. Therefore, the trial court held that when the plaintiff did not elect to purchase the suit property in as is where is condition, he is not entitled for the relief of specific performance. However, before this Court, in the appeal, the plaintiff has taken a diametrically opposite and reverse stand to the effect that he is prepared to purchase the property with the tenants. According to the learned counsel for the review applicant, a party to the litigation cannot be permitted to elect twice, one before the trial court and the other before the Appellate Court. A party cannot be permitted to elect differently and he has to stand or fall on his own pleadings. In http://www.judis.nic.in 8\26 Rev.Appln No. 71 of 2019 the present case, the respondent had elected to seek for a decree before the trial court to purchase the property only after the tenants are evicted. The position of the plaintiff with respect to his election to purchase the property remained even till he filed the present appeal which could be evident from the grounds of appeal filed in A.S. No. 94 of 2010. However, when the appeal came up for hearing before this Court, an affidavit dated 27.11.2017 was filed by the respondent/plaintiff contrary to his own pleadings, to purchase the suit property with the tenants. The Division Bench, on the basis of the affidavit of the respondent/plaintiff dated 27.11.2017 set aside the decree and judgment passed by the trial court, without taking note of the fact that the respondent/plaintiff elected to purchase the suit property with the tenants, contrary to his own pleadings. In this context, the learned counsel appearing for the Review Applicant/defendant placed reliance on the decision of the Honourable Supreme Court in the case of (Surjit Kaur vs. Naurata Singh and another) reported in 2000 Supreme Court Cases 379 to contend that a person, who was not ready and willing to accept part performance, cannot later change his position and elect to accept part performance and it is not legally permissible. In Para No.15 of the aforesaid decision of the Honourable Supreme Court it was held as follows:-
"15. It is also settled law that specific performance cannot be granted to a party who has not been ready and willing at all stages to perform the contract. Of course, the first respondent was ready and willing to perform the contract in its entirety. To that extent, there would be readiness and willingness on the part of the first respondent. But in cases where a contract is not capable of being performed in whole then the readiness and willingness, at all stages, is the readiness and willingness to accept part performance. If a contract is not capable of being performed in whole and a party clearly indicates that he is not willing to accept part-performance, then there is no readiness and willingness, at all http://www.judis.nic.in stages, to accept part-performance. In that case, there can be no 9\26 Rev.Appln No. 71 of 2019 specific performance of a part of the contract at a later stage. None of the authorities cited by Mr. Gupta lay down anything contrary. In all those cases, the party had been insisting on part- performance and/or the time for election had not arrived. In none of those cases an election not to accept part-performance had been made. It is under those circumstances that the Courts held that the party could elect to accept part-performance at any stage of the litigation. In those cases it could not be said that there was no readiness and willingness to accept part-performance."
12. By placing reliance on the above decision, the learned counsel for review applicant would contend that the respondent cannot be permitted to elect twice to suit his own convenience and thereby setting aside the well considered decree and judgment passed by the trial court. The Division Bench of this Court, while passing the Judgment dated 27.11.2017 in A.S. No. 94 of 2010 did not consider this legal aspect and therefore, the Judgment of the Division Bench requires to be reviewed.
13. Countering the submissions of the learned counsel for the review applicant/defendant, the learned Senior counsel appearing for the respondent/plaintiff would contend that even though trial court dismissed the suit filed by the respondent/ plaintiff, certain observations made by it to the effect that the review applicant/ defendant had committed breach of conditions of the agreement dated 11.04.2006 remains unchallenged and it has become final. Further, notice was served on the review applicant in A.S. No. 94 of 2010 and the appeal was listed for hearing on various dates. However, the review applicant has not chosen to contest the appeal for the reasons best known to him. In such circumstances, in order to give a quietus to the long pending litigation, the respondent/plaintiff http://www.judis.nic.in elected to purchase the suit property with the tenants.
10\26 Rev.Appln No. 71 of 2019 Thereafter, when execution petition was filed the review applicant/ defendant entered appearance through a counsel but did not contest the execution petition, with the result, the executing Court had executed a Sale Deed in respect of the property in question. It is at this stage, the review applicant has filed the instant Review Application. According to the learned Senior counsel, under Order 47 Rule 1 of Code of Civil Procedure, a review can be entertained only if there is discovery of new and important matter or evidence and most importantly, it has to be pointed out that there is an error apparent on the face of the record. In the present Review Application, these two features are absent and therefore, the Review Application cannot be entertained.
14. According to the learned Senior counsel for the respondent/plaintiff, the review applicant/defendant, in his written statement filed before the trial court, has raised a false plea as if the tenants were vacated but it is the respondent/plaintiff who did not come forward to get the sale deed executed by paying the balance sale consideration. The fact remains that the tenants are still occupying the suit property and this proves volumes about the conduct of the review applicant. In this context, the learned Senior counsel for the respondent/ plaintiff placed reliance on the decision of the Honourable Supreme Court in the case of (Silvey vs. Arun Varghese) reported in (2008) 11 SCC 45) to contend that the conduct of the defendant cannot be ignored while weighing the question of exercise of discretion for decreeing or denying a decree for specific performance. In Para No.14 of the said Judgment, it was held by the Honourable Supreme Court as follows:-
http://www.judis.nic.in 11\26 Rev.Appln No. 71 of 2019 "14. As regards the false plea of the defendants, the effect needs to be noted. It was pleaded that Defendant 3 had gone to the house of Plaintiff 2 in Alleppey prior to receiving any letter from the plaintiffs and had spoken that they had told him that they were not keen on enforcing the application under Ext.
A-1. But when examined as DW1, the said Defendant 3 admitted that he had never met the plaintiff as pleaded in the written statement and that he or any other defendant had never gone to Alleppey to meet Plaintiff 2 at his residence to speak about the performance of the contract. The plea stated in the written statement was abandoned in evidence. In Lourdu Mari David vs. Louis Chinnaya Arogiaswamy (1996) 5 SCC 589, it was noted that the conduct of the defendant cannot be ignored while decreeing or denying a decree for specific performance. The High Court has, after analysing the factual position, come to the conclusion that the defendants were really not ready to perform their obligation in terms of the contract and had taken a false plea in the written statement."
15. The learned Senior counsel for the respondent/plaintiff proceeded to contend that Section 12 (3) of the Specific Relief Act deals with part performance of the contract and that the Court can always accept relinquishment of a claim by a party to the litigation at any stage. In this context, the learned Senior counsel relied on the decision of the Honourable Supreme Court in the case of (Surender Singh vs. Kapoor Singh (dead) through LRs and others) reported in (2005) 5 Supreme Court Cases 142 to contend that the doctrine of election is not always a bar and a party can elect and/or relinquish the whole or part of his claim. In Para No.12 of this judgment, it was held as follows:-
"8. Section 12 (3) of the Act is a beneficial provision so far as the purchasers are concerned. In the instant case, in view of the findings of fact arrived at by the High Court, the decree for specific performance of contract in respect of the entire suit land could not have been granted as the appellant herein was not authorised by his sister to enter into the agreement for sale. The relinquishment of claim as contemplated under Section 12 (3) (ii) of the Act as regards performance of the remaining part of the http://www.judis.nic.in contract and all rights to compensation need not specifically be 12\26 Rev.Appln No. 71 of 2019 pleaded and can be made at any stage of the litigation. Such a plea can also be raised at the appellate stage. Delay by itself, it is trite, may not stand in the way of the plaintiff claiming the relief unless the defendant establishes prejudice.
9. In this case, the Division Bench of the High Court passed a decree of specific performance of contract relying on or on the basis of a decision of this Court in Kartar Singh 1954 SCR 958 = AIR 1954 SC 165.
10. In Kartar Singh as in the present case, the respondent therein and the sister had half share in the property, an agreement for sale was also entered into by the respondent not only in respect of his own share but also in respect of share of his sister. In that case, the High Court was of the opinion that the respondent therein could not and in fact did not agree to sell the whole of the property by himself as neither had he any authority to do so nor did he represent that he was the owner of the whole of the property. It was in the aforementioned factual background, the High Court further held that sub-sections (2) and (3) of Section 12 of the Act would not be applicable because the portion to be left out was not a small portion of the whole property. This Court reversed the said finding of the High Court holding : SCC pp.520- 21, paras 4-5) '4. .....Secondly, the agreement of sale clearly mentions that respondent was entering into the agreement both on behalf of himself and his sister, and that he was, under the agreement, selling the whole of his share and also the whole of the share of his sister in the property. Further, in the agreement itself he had stated that he was responsible to get the sale deed executed by his sister and that he would persuade her to do so. This being the case, the properties agreed to be sold were clearly distinguishable by the shares of the respective vendors. In the circumstances when the absentee vendor, for some reason or the other, refused to accept the agreement, there is no reason why the agreement should not be enforced against the vendor who had signed it and whose property is identifiable by his specific share.
5. We are, therefore, of the view that this is not a case which is covered by Section 12 of the Act. It is clear from Section 12 that it relates to the specific performance of a part of a contract. The present is not a case of the performance of a part of the contract, but of the whole of the contract so far as the contracting party, namely, the respondent is concerned. Under the agreement, he had contracted to sell whole of his property. The two contracts viz., for the sale of his share and of his sister's share were separate and were severable from each http://www.judis.nic.in other although they were incorporated in one agreement.
13\26 Rev.Appln No. 71 of 2019 In fact, there was no contract between the appellant and the respondent's sister and the only valid contract was with respondent in respect of his share in the property.'
11. In Rachakonda Narayana 1954 SCR 958: AIR 1954 SC 165, analysing the provisions of sub-section (3) of Section 12 of the Act, this Court opined (SCC pp.177-78, para-8) 'Thus, the ingredients which would attract specific performance of the part of the contract are; (i) if a party to an agreement is unable to perform a part of the contract, he is to be treated as defaulting party to that extent and (ii) the other party to an agreement must, in a suit for such specific performance, either pay or has paid the whole of the agreed amount, for that part of the contract which is capable of being performed by the defaulting party and also relinquish his claim in respect of the other part of the contract which the defaulting party is not capable to perform and relinquishes the claim of compensation in respect of loss sustained by him. If such ingredients are satisfied, the discretionary relief of specific performance is ordinarily granted unless there is delay or laches or any other disability on the part of the other party. It was furthermore held that an application for amendment of the plaint relinquishing the claim in respect of that part of the contract, which cannot be performed can be filed even at the appellate stage.
12. Kartar Singh 1954 SCR 958 = AIR 1954 SC 165 was rendered in the fact situation obtaining therein. The observations therein to the effect that the provision of Section 12 was not applicable came to be made in view of the finding that the sister of the respondent had not entered into any contract at all. In this case, however, the appellant herein had entered into the aforementioned agreement for sale on the premise that he had requisite authority to do so on behalf of his sister as also on his own behalf. The sister of the appellant denied or disputed such authority and in that view of the matter, it is beyond any pale of doubt that the agreement for sale was entered into in respect of the entire suit land and having regard to the fact that the sister of the appellant did not authorise him to enter into the said agreement, sub-section (3) of Section 12 of the Act would clearly be attracted. Kartar Singh should not be held to lay down a law to the effect that even in a case where a part of the contract is held to be invalid, Section 12 will have no application.
13. The question which deserve consideration now is as to whether the application for amendment of the plaint filed by the plaintiff-respondents should be allowed. Sub-section (3) of Section 12 does not lay down any limitation for filing such an http://www.judis.nic.in application. Such an application can be filed at any stage of the 14\26 Rev.Appln No. 71 of 2019 proceedings and in that view of the matter an application even before this Court would be maintainable. "
16. By placing reliance on the above decision, the learned Senior counsel for the respondent would contend that Section 12 (3) of the Specific Relief Act does not lay down any limitation for filing an application for relinquishing a claim, either in whole or in part. An application for relinquishing a claim, either in whole or in part can be filed at any stage of the proceedings and therefore, such an application would be maintainable even before this Court.
17. For the same proposition, reliance was placed on the decision of the Honourable Supreme Court in (Rachakonda Narayana vs. Ponthala Parvathamma and another) reported in (2001) 8 Supreme Court Cases 173 and useful reference can be made to the observations made in para-8 therein which reads as under:-
"8. A perusal of sub-section (3) of Section 12 shows that the first part of the said provisions mandates refusal of specific performance of a contract on certain conditions. However, the latter part of the provisions permits a court to direct the party in default to perform specifically so much of his part of the contract as he can perform if the other party pays or has paid the agreed consideration for the whole of the contract and relinquishes all claims to the performance of the remaining part of the contract and all the rights to compensation for the loss sustained by him. If a suit is laid by the other party, the Court may direct the defaulting party to perform that part of the contract which is performable on satisfying two pre-conditions i.e., (i) the plaintiff pays or has already paid the whole of the consideration amount under the agreement and that (ii) the plaintiff relinquishes all claims to the performance of the other part of the contract which the defaulting party is incapable to perform and all rights to compensation for loss sustained by him. Thus, the ingredients which would attract specific performance of the part of the contract are (i) if a party to an agreement is unable to perform a part of the contract, he is to http://www.judis.nic.in be treated as defaulting party to that extent and (ii) the other party 15\26 Rev.Appln No. 71 of 2019 to an agreement must, in a suit for such specific performance, either pay or has paid the whole of the agreement amount, for that part of the contract which is capable of being performed by the defaulting party and also relinquish his claim in respect of the other part of the contract which the defaulting party is not capable to perform and relinquishes the claim of compensation in respect of loss sustained by him. If such ingredients are satisfied, the discretionary relief of specific performance is ordinarily granted unless there is delay or laches or any other disability on the part of the other party.
9. Now, the question is whether relief under Section 12 (3) of the Act is required to be pleaded in the plaint when the suit is laid or it can also be taken at the appellate stage. The view taken by the High Court is that the readiness and willingness to perform the terms of the contract by the plaintiff based on the latter part of sub-section (3) of Section 12 must be pleaded in the plaint itself when the suit is laid and in its absence the relief being discretionary cannot be granted by amendment of the plaint at the appellate stage. In Kalyanpur Lime Works Ltd vs. State of Bihar AIR 1954 SC 165 ; 1954 SCR 958 an identical question came up before the Supreme Court. In the said case, the Apex Court held that relief based on Sections 13, 14, 15 and 17 of the Specific Relief Act, 1877 can be granted at any stage of the litigation. In A.L. Parthasarathi Mudaliar vs. Venkata Kondiah Chettiar AIR 1965 Mad 188 it is held that it is open to the plaintiff to relinquish part of the contract after paying the entire consideration of the contracted amount at the appellate stage of the proceedings, if the defaulting party is not capable to perform the whole of the contract.
10. We are in agreement with the statement of law expressed in the aforesaid decisions. In the present case, what we find is that it was for the first time at the appellate stage, Defendant 1 stated that he had no title in respect of Plot B sivaijama land which belonged to his first wife and his wife has refused to assign the said plot of land in his favour. It is on account of the said statement the plaintiff filed an application for amendment of the plaint relinquishing his claim in respect of Plot B of land as well as compensation for the loss he sustained for non-
performance of part of the contract while agreeing to pay the entire contracted amount. An appeal is a continuation of the suit. When an appellate court hears an appeal, the whole matter is at large. The appellate court can go into any question relating to the rights of the parties which a trial court was entitled to dispose of provided the plaintiff possesses that right on the date of filing of the suit. Defendant 1 prior to filing of appeal by the plaintiff never informed the plaintiff that his wife has refused to assign Plot B of land in his favour and he having no title over the said plot of land is incapable http://www.judis.nic.in to perform the whole part of the contract. Under such 16\26 Rev.Appln No. 71 of 2019 circumstances, it was open to the plaintiff to move for amendment of the plaint, pleading therein the ingredients of part-performance of the contract as provided under sub-section (3) of Section 12 of the Act. It is not disputed that the plaintiff had deposited the entire contracted amount in the trial court. He further relinquished his claim in respect of Plot B of land as well as claim for compensation. Under such circumstances, the first appellate Court was justified in allowing the amendment of the plaint and thereafter decreeing the suit of the plaintiff. We, therefore, find that the view taken by the High Court in holding that the plea taken by the plaintiff at the appellate stage having not been taken at the time of filing of suit, the suit would fail, is erroneous. For the aforesaid reasons the appeal deserves to be allowed.
18. By quoting the above decision of the Honourable Supreme Court, the learned Senior counsel for the respondent would contend that an appeal is a continuation of the suit and when the appellate court hears an appeal, the appellate court can go into any question relating to rights of the parties which a trial court is entitled to dispose of provided the plaintiff possesses that right on the date of filing of the suit. In this case, the review applicant/defendant did not deny the execution of agreement of sale as well as the advance amount paid. The review applicant also did not deny that there is a clause in the agreement which requires him to vacate the tenants and thereafter execute the sale deed in favour of the respondent/plaintiff. Admittedly, the tenants have not been vacated and therefore, at the appellate stage, the respondent/plaintiff had chosen to elect to purchase the property with the tenant and such right to purchase the property with the tenant exist for the plaintiff even before the trial court on the date of filing the suit.
19. As regards the plea of readiness and willingness raised by the review applicant, it is replied by the learned Senior counsel for the respondent/plaintiff that the http://www.judis.nic.in trial court rendered a specific finding that in para No.9 of the plaintiff, reference 17\26 Rev.Appln No. 71 of 2019 made to the fact that the plaintiff had continuously kept the money in his bank account for performance of his obligation. It was also averred in para No.9 of the plaint that the plaintiff is running jewellery business besides he is an income tax assessee and his family has got certain properties. Having regard to such a plea, the trial court rendered a finding that tendering balance sale consideration or depositing it in court is not necessary to infer the readiness and willingness but what is required is the financial capacity to pay the balance consideration. Further, the documents filed under Exs. A11 to A14 give rise to an inference that the plaintiff can mobilise the balance sale consideration at any time. However, the trial court dismissed the suit on the ground that the plaintiff did not elect to purchase the suit property with the tenants and he is not mentally prepared to do so. In such circumstances, the learned Senior counsel would contend that the readiness and willingness on the part of the plaintiff has been exhibited throughout the litigation. Even otherwise, during the pendency of the review application, by depositing the balance sale consideration, the sale deed itself has been executed in favour of the respondent/plaintiff and therefore, the question of readiness and willingness on the part of the respondent/plaintiff need not be gone into by this Court in this Review Application.
20. As regards the doctrine of election pleaded by the review applicant, it is submitted by the learned Senior counsel for the respondent/plaintiff that before the trial court, it was the stand of the respondent/plaintiff to purchase the suit property after the tenants were evicted. The suit was filed on the basis of the agreement of sale dated 11.04.2006. The trial court dismissed the suit on http://www.judis.nic.in 18\26 Rev.Appln No. 71 of 2019 25.08.2009. The appeal was filed before this Court on 19.02.2010. In the appeal, inspite of notice, the respondent did not enter appearance and choose to contest the appeal. The appeal was pending before this Court for a period of about seven years and when the appeal came up for hearing on 27.11.2017, an affidavit was filed by the respondent/plaintiff electing to purchase the suit property with the tenants, in order to put a quietus to the long pending litigation. Such an election was made by the respondent after 11 years of filing the suit. When the review applicant/defendant did not contest the appeal, such an election made by the respondent/plaintiff will not in any way causes prejudice or hardship to the review applicant. Therefore, the learned Senior counsel would submit that the application of doctrine of election will not be pressed into service in the present review petition against the judgment and decree dated 27.11.2017 passed in A.S. No. 94 of 2010. The learned Senior counsel therefore prayed for dismissal of the Review Application.
21. We have heard the counsel for both sides and perused the materials placed on record. The defendant is the owner of the property in question in which he had inducted tenants. The plaintiff intends to purchase the property and an agreement dated 11.04.2006 was entered into between the plaintiff and the defendant for a total sale consideration of Rs.16,20,000/-. On the date of execution of the agreement, the plaintiff paid a sum of Rs.3,60,001/- as advance and the balance sale consideration is to be paid at the time of execution of the sale deed. One of the important conditions contained in the agreement dated 11.04.2006 is that the defendant has to vacate the tenants and deliver the vacant possession of http://www.judis.nic.in 19\26 Rev.Appln No. 71 of 2019 the property to the plaintiff within three months. According to the plaintiff, he was always ready and willing to purchase the property by tendering the balance sale consideration, but it was the defendant who breached the terms and conditions of the agreement dated 11.04.2006 with respect to vacating the tenants. In other words, as the defendant did not vacate the tenants from the suit property, the plaintiff expressed his disinclination to purchase the suit property and demanded the defendant to forthwith vacate the tenants and to execute the sale deed in his favour. This was also the sum and substance of the averments made in the plaint before the trial court by the plaintiff. However, in the written statement, the review applicant/defendant has raised a specific defence that the tenants have vacated the property in question and that the property is ready for occupation. This averment of the review applicant/defendant in the written statement was denied by the plaintiff by contending that the tenants are still in occupation of the property and that the plea with respect to vacation of the tenants is false. The trial court, on consideration of the rival contentions, specifically rendered a finding in para No.18 that the defendant has not filed any documentary evidence to show that the tenants have already vacated from the suit property. Even the evidence adduced by the defendant, as DW1 and another witness as DW2, did not inspire the trial court with respect to eviction of the tenants or to conclude that the tenants are no longer occupying the property. However, the trial court, upon considering the specific plea of the plaintiff that he is not inclined to purchase the suit property with the tenants, directed the defendant to refund the advance amount with interest at the rate of 18% per annum. Aggrieved by the Judgment and Decree of the trial court in refusing to grant a decree for specific performance, the plaintiff has filed A.S. No. http://www.judis.nic.in 20\26 Rev.Appln No. 71 of 2019 94 of 2010.
22. Admittedly, in the appeal, in A.S. No. 94 of 2010, the review applicant herein/respondent therein has been served. It is also an admitted fact that the appeal was listed on several occasion but the review applicant did not choose to contest the appeal. In this fashion, the appeal was kept pending for about seven years. In other words, the appellant in A.S. No. 94 of 2010, respondent herein, was ready to prosecute the appeal, however, as the respondent in the appeal/review applicant herein did not come forward to contest the appeal and as such, the appeal could not be disposed of. It could be evident that the review applicant herein, who is the respondent in A.S. No. 94 of 2010, was served notice even on 09.04.2010. Thereafter, the appeal was listed for hearing before this Court from 19.03.2012 to 27.11.2017 and on all those hearings, the review applicant, who is the respondent in A.S. No. 94 of 2010, did not appear, either in person or through a pleader. In such circumstances, the plaintiff/respondent herein, in order to get a decree for specific performance, appears to have elected to purchase the suit property with the tenants and to that effect, he has filed an affidavit before this Court on 27.11.2017. The Division Bench of this Court also, finding that the appeal remains uncontested all these years by the review applicant/defendant, accepted the affidavit filed by the respondent/plaintiff and granted a decree for specific performance on 27.11.2017 since the trial court dismissed the suit only on the ground that the respondent herein was reluctant to purchase the suit property with tenants. Aggrieved by the Judgment and Decree dated 27.11.2017, the present Review Application has been filed.
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23. It is to be stated that had the review applicant contested the appeal before the Division Bench of this Court and opposed the affidavit of the respondent herein filed on 27.11.2017 electing to purchase the suit property with the tenants, we feel that the Division Bench could have considered the claim of the Review Applicant which are raised in the present Review Application. However, for the reasons best known, the review applicant did not contest A.S. No. 94 of 2010 which was pending for a considerable length of time before this Court. Therefore, the respondent/plaintiff, in order to put an end to the ordeal of continued litigation, had chosen to elect to purchase the suit property with the tenants, even though he refused to do so before the trial court. Such an election or rather to say a relinquishment of the claim the respondent/plaintiff made before the trial court is legally permissible. We feel that such an election on the part of the respondent/plaintiff to purchase the suit property with the tenants is wholly justifiable in the given facts and circumstances of the case. All that it requires is that such election could not cause any prejudice to the review applicant/defendant. It is true that a plaintiff has to fall or raise on his own pleadings and he cannot take a contrary stand before the appellate Court than the one on which he laid his case before the trial court. At the same time, the election to purchase the suit property with the tenants, in the present case, by relinquishing the right to purchase the property without the tenants, in our opinion, has not caused any prejudice to the review applicant/defendant in any manner and therefore, in the given facts and circumstances of this case, the respondent/plaintiff is justified in electing to purchase the suit property with tenants. It is also pertinent to mention that the trial http://www.judis.nic.in 22\26 Rev.Appln No. 71 of 2019 court has disbelieved the defence raised by the review applicant/defendant that the tenants were vacated, however, the review applicant/defendant has neither chosen to file an appeal as against such observations made by the trial court nor contested the appeal preferred by the respondent/plaintiff herein before the Division Bench of this Court, inspite of service of notice on him. Therefore, it is the review applicant/ defendant, who is the defaulting party, especially when he did not vacate the tenants from the suit property within three months, as undertaken in the suit agreement.
24. Section 12 (3) of The Specific Relief Act bars part performance where a party to a contract is unable to perform the whole or part of a contract. In this case, the question of invocation of Section 12 (3) of The Specific Relief Act will not arise inasmuch as there was no failure to perform the contract on the part of the respondent at all. On the other hand, it was the review applicant who committed breach of the contract. Even otherwise, the latter part of Section 12 (3) permits a court to direct the party in default to perform specifically so much of his part of the contract as he can perform if the other party pays or has paid the agreed consideration for the whole of the contract and relinquishes all claims to the performance of the remaining part of the contract and all the rights to compensation for the loss sustained by him. This would only indicate that the Court can, at any stage of the litigation, accept relinquishment of a claim by a party, either in full or on part, but subject to certain conditions. In any event, the bar raised under Section 12 of The Specific Performance Act will not apply to this case inasmuch as there is a breach on the part of the review applicant/defendant to perform his part of the http://www.judis.nic.in 23\26 Rev.Appln No. 71 of 2019 obligations in vacating the tenants. While so, the plaintiff cannot, in any manner, be treated as the one who had not performed his part of the contract. In such circumstances, the election of the respondent/plaintiff to purchase the property with the tenants, at the appellate stage, is legally permissible.
25. The election of the respondent/plaintiff to purchase the suit property even with the tenants, in our opinion, can be refused only if it is shown that such an election will prejudice the right of the review applicant/defendant. Even assuming that the review applicant/defendant is in any way prejudiced by such election on the part of the respondent/plaintiff, such a plea cannot be considered by this Court in this Review Application. For maintaining a review petition, the review applicant must fulfil certain legal parameters. It is well settled proposition of law that there must be an error apparent on the face of the record warranting maintaining a review application. However, a review cannot be maintained merely because an alternative decision also could have been taken by the Court. The review applicant also cannot be permitted to raise new plea, which were not raised before the Court whose order is sought to be reviewed. None of the above aspects are available in this case warranting us to entertain the review application. In fact, the review applicant has not chosen to appear before this Court to contest the appeal filed by the respondent/plaintiff inspite of service of notice. While so, the review applicant/defendant is estopped from raising the plea of doctrine of election in this review application. In this context, we are fortified by the decision of the Honourable Supreme Court in the case of (Kamlesh Verma vs. Mayawati and others) reported in (2013) 8 SCC 320 wherein the Honourable Supreme Court, after http://www.judis.nic.in 24\26 Rev.Appln No. 71 of 2019 examining various judgments, has laid down the circumstances, as to when the Court can review its own judgments. The relevant portion of the judgment is extracted as under:
"12.This Court has repeatedly held in various Judgments that the jurisdiction and scope of review is not that of an appeal and it can be entertained only there is an error apparent on the face of record. A mere repetition through different counsel, of old and overrulled arguments, a second trip over ineffectually covered grounds or minor mistakes of inconsequential import are obviously insufficient......."
... ... ...
"19. Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XL VII Rule 1 of CPC. In review jurisdiction, mere disagreement with the view of the Judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned Judgment in the guise that an alternative view is possible under the review jurisdiction.
26. In the light of the above decision of the Honourable Supreme Court, we only wish to observe that if the Review Applicant is in any manner aggrieved by the Judgment and Decree passed by this Court in A.S. No. 94 of 2010, it is well open to them to file an appeal before the Honourable Supreme Court and this review is not maintainable.
27. In the result, we dismiss the Review Application and refuse to review the Judgment and Decree dated 27.11.2017 passed in A.S. No. 94 of 2010 by the Division Bench of this Court. No costs. Consequently, connected miscellaneous petition is closed.
(R.P.S.J) (T.K.J.)
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