Andhra Pradesh High Court - Amravati
S.K.Sujana vs S.K.Chotee Bee Died Another on 11 March, 2024
1
BSS,J
S.A.No.171 of 2017
APHC010389352017
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3366]
(Special Original Jurisdiction)
MONDAY ,THE ELEVENTH DAY OF MARCH
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE B SYAMSUNDER
SECOND APPEAL NO: 171/2017
Between:
S.k.sujana ...APPELLANT
AND
S K Chotee Bee Died Another and Others ...RESPONDENT(S)
The Court made the following:
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BSS,J
S.A.No.171 of 2017
HON'BLE SRI JUSTICE BANDARU SYAMSUNDER
SECOND APPEAL NO.171 of 2017
JUDGMENT:
The plaintiff in O.S.No.15 of 2007 on the file of Senior Civil Judge, Kovur is the appellant, and the respondents are the defendants in the suit. Originally, the suit was instituted by the appellant against the respondents for specific performance of agreement of sale, dated 26.12.1991, and for permanent injunction, restraining the respondents from interfering with her peaceful possession and enjoyment of the plaint schedule property, which is house and site, bearing Door No.13-456-1 in S.No.239/1, within the boundaries. 6 ankanams of site, including 5 ½ ankanams RCC slab house, situated at Buchireddipalem village of Nellore District.
2. The appellant and the respondents hereinafter referred to as plaintiff and defendants as arrayed before the trial Court.
3. The 1st defendant died during pendency of the First Appeal.
4. The plaintiff instituted the suit against the defendants, for specific performance of Ex.A1/Agreement of sale, dated 3 BSS,J S.A.No.171 of 2017 26.12.1999, and for permanent injunction, restraining the defendants from interfering with her peaceful possession and enjoyment of the plaint schedule property. It is the contention of the plaintiff that the 1st defendant was the absolute owner of the plaint schedule property, offered to sell the same, which she agreed to purchase the same for Rs.1,55,000/-, and on 26.12.1991 the plaintiff paid Rs.30,000/- as an advance to the 1st defendant and then the 1st defendant executed Ex.A1/ Agreement of sale in her favour on the same day. The plaintiff submits that balance sale consideration was payable on or before 30.04.1992, and the 1st defendant agreed to execute registered sale deed in her favour. The plaintiff paid Rs.40,000/- to the 1st defendant on 12.03.1992, and endorsed the same on the back of Ex.A1/Agreement of sale. The plaintiff also paid a sum of Rs.15,000/- on 19.04.1992 and Rs.70,000/- on 20.04.1992, and endorsed the same on the back of Ex.A1/Agreement of sale, which endorsements are marked as Exs.A2 to A4. The plaintiff also submits that the 1 st defendant, who entered agreement of sale with her, cancelled the previous agreement of sale stands in the name of one 4 BSS,J S.A.No.171 of 2017 Mr.Bondili Balaji Singh, whom the 1st defendant paid the amount received from the plaintiff, and cancelled agreement of sale, dated 07.03.1991. The plaintiff submits that she paid entire sale consideration to the 1st defendant, and the 1st defendant was also inducted the plaintiff in possession of the plaint schedule property on 26.12.1991 itself, i.e., from the date of agreement of sale, and ever since the plaintiff is in exclusive possession and enjoyment of the plaint schedule property by paying house tax to the Gram Panchayat in her name. It is also the contention of the plaintiff that in the year 1993, she constructed terraced building with first floor and obtained electricity service connection, and paid electricity bills for the ground floor and first floor. Then the plaintiff came to know that the 1st defendant executed nominal settlement deed in favour of the 2nd defendant on 15.12.2005 in respect of the plaint schedule property, which is not valid, as the 1 st defendant has no right in the plaint schedule property. Hence, the suit.
5. The 1st defendant filed written statement, resisting the claim of the plaintiff. It is the contention of the 1st defendant 5 BSS,J S.A.No.171 of 2017 that she never sold the plaint schedule property to the plaintiff for consideration of Rs.1,55,000/- and she never received a sum of Rs.30,000/- towards advance and not executed Ex.A1/ Agreement of sale on 26.12.1991 in favour of the plaintiff, and said agreement of sale is forged and fabricated document. The 1st defendant submits that she also not received any part payments as alleged in the plaint, under Ex.A1/Agreement of sale, and she also never inducted the plaintiff into the possession of the plaint schedule property on 26.12.1991. It is the contention of the 1st defendant that in the year 1993, she constructed first floor, and in the year 1995 the same was leased out to the husband of the plaintiff on a monthly rent of Rs.1,500/-, but the husband of the plaintiff vacated the shop room in the year 2006, and then the 1st defendant leased out the ground floor to one Mr.P.Penchala Reddy in the year 1998, who started a hotel in the name and style 'Nirmala Biriyani centre', who used to pay a sum of Rs.6,000/- per month. The 1st defendant submits that she executed settlement deed in favour of the 2nd defendant in respect of the plaint schedule property with a right and title, and possession was also 6 BSS,J S.A.No.171 of 2017 delivered to her. The 1st defendant alleged that the plaintiff might have created tax receipts and electricity consumption charges by mis-representing the facts. She prays to dismiss the suit.
6. The 2nd defendant also filed written statement and counter-claim, stating that her grand-mother, i.e., 1st defendant executed settlement deed on 15.12.2005 in respect of the plaint schedule property in her favour and delivered the possession of the same, and since then she has been in possession and enjoyment of the same, and she is entitled to the plaint schedule property. She prays to dismiss the suit filed by the plaintiff and decree the counter-claim by granting permanent injunction in respect of the plaint schedule property.
7. Then, the plaintiff filed re-joinder, stating that the 1st defendant is in possession of 6 ankanams of house site on the eastern side house bearing Assessment No.2980, and the Assessment number of the plaint schedule property is 2981, which is in her name and alleged letter, dated 05.02.2007 is 7 BSS,J S.A.No.171 of 2017 created one for the purpose of the suit. She prays to decree the suit.
8. The trial Court basing on the above pleadings, settled the following issues:-
1. "Whether the plaintiff is entitled for specific performance of agreement of sale, dated 26.12.1991 as prayed for?
2. Whether the agreement of sale, dated 26.12.1991 is forged and fabricated one?
3. Whether the 1st defendant executed the settlement deed, dated 15.12.2005 in favour of the 2nd defendant with intent to defeat the right of the plaintiff over the plaint schedule property?
4. To what relief"?
9. The parties went to trial. On behalf of the plaintiff, PW.1 to PW.4 were examined. Exs.A1 to A23 were marked. On behalf of the defendants, DW.1 and DW.2 were examined and no documents were marked before the trial Court.
10. On appreciation of oral and documentary evidence, the trial Court decreed the suit, directing the 1st defendant to execute a registered sale deed in favour of the plaintiff in terms of Ex.A1/Agreement of sale, within three months from the date of Judgment, and if the 1st defendant failed to do so, 8 BSS,J S.A.No.171 of 2017 the plaintiff is at liberty to get the sale deed registered through the Court. The trial Court also granted permanent injunction, restraining the defendants, their men and agents from interfering with the peaceful possession and enjoyment of the plaintiff in the plaint schedule property.
11. Aggrieved by the Judgment and Decree passed by the trial Court, the defendants presented AS.No.110 of 2009 on the file of I Additional District Judge, Nellore, which was allowed by the First Appellate Court, setting aside the Judgment and Decree passed by the trial Court, and dismissed the suit.
12. In these circumstances, the present Second Appeal is presented.
13. I have heard learned Counsel for the appellant Mr.P.Ganga Rami Reddy as well as learned Counsel Mr.Dasari S.V.V.S.V.Prasad, representing on behalf of Mr.V.V.Raghavan, learned Counsel for the respondents.
14. The learned Counsel for the appellant would submit that originally the plaint schedule property belongs to the 1 st defendant, who agreed to sell the same to the plaintiff and 9 BSS,J S.A.No.171 of 2017 executed Ex.A1/Agreement of sale in favour of the plaintiff and received entire sale consideration, as per Exs.A2 to A4/ Payment endorsements. He would further submit that the plaintiff sold 6 ankanams of site out of 12 ankanams, executed Ex.A23/Settlement Deed in favour of the 2nd defendant in respect of entire property ignoring Ex.A1/Agreement of sale without any valid right. He argued that the plaintiff constructed RCC building, and her name is also mutated in the revenue records, and the plaintiff has been paying the electricity consumption charges and house tax to the plaint schedule property, and to support her contention she filed house tax receipts and electricity consumption charge bills. It is the contention of the learned Counsel for the appellant that though date is fixed for performance of a contract as 30.04.1992, the plaintiff has paid entire sale consideration amount before that date and performed her part of contract, and the 1st defendant failed to perform her part of contract in spite of repeated demands, and created original of Ex.A23/ Settlement deed in favour of the 2nd defendant without having valid right. He argued that though suit is filed on 09.02.2007, 10 BSS,J S.A.No.171 of 2017 which is within three years from the date of original of Ex.A23, due to that Article 54 second limb is only applicable to the facts of the present case, in view of plaintiff performing her part of contract. He further argued that the 1st defendant has not pleaded that the suit is barred by limitation, and no issue is also framed with regard to limitation, and execution of Ex.A1 is proved by the plaintiff, by examining scribe and attestors and also by examining PW.5/Finger Print Expert before the Appellate Court, and by marking Ex.A24, his opinion. He relied on following precedent law:
1) Gunwantbhai Mulchand Shah and others. vs. Anton Elis Farel and others in (2006) 3 SCC 634, wherein it is held that plea of limitation is a mixed question of law and fact, which cannot be decided as a preliminary issue, and the trial Court has to decide the issue of limitation after adducing evidence by both sides.
2) Ahmadsahab Abdul Mulla (2) (Dead) by proposed LRs. vs. Bibijan and others in (2009) 5 SCC 462, wherein it is explained meaning of word 'date is fixed' for performance and held at Para Nos.10 to 12, which reads as under:11
BSS,J S.A.No.171 of 2017 "10."Fixed" in essence means having final or crystallized form or character not subject to change or fluctuation.
11.The inevitable conclusion is that the expression "date fixed for the performance" is a crystallized notion. This is clear from the fact that the second part "time from which period begins to run" refers to a case where no such date is fixed. To put it differently, when date is fixed it means that there is a definite date fixed for doing a particular act. Even in the second part the stress is on "when the plaintiff has notice that performance is refused". Here again, there is a definite point of time, when the plaintiff notices the refusal. In that sense both the parts refer to definite dates. So, there is no question of finding out an intention from other circumstances.
12.Whether the date was fixed or not the plaintiff had notice that performance is refused and the date thereof are to be established with reference to materials and evidence to be brought on record.
The expression "date" used in Article 54 of the Schedule to the Act definitely is suggestive of a specified date in the calendar. We answer the reference accordingly. The matter shall now be placed before the Division Bench for deciding the issue on merits".
3) Banarsi Das vs. Kanshi Ram and others and batch in AIR 1963 SC, 1165, wherein, it is held plea of limitation, wherein the Hon'ble Apex Court held while deciding the dissolution of partnership at will that plea of limitation involving mixed question of fact and law should not be allowed to be raised for the first time in argument.
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BSS,J S.A.No.171 of 2017
4)Biswanath Ghosh (Dead) by Legal Representatives and others. vs. Gobinda Ghosh alias Gobindha Chandra Ghosh and others in (2014) 11 SCC 605, wherein it is explained in a suit for specific performance the plaintiff must be able to show that he is ready and willing to carry out those obligations which are in fact part of the consideration for the undertaking of the defendant. For the compliance with Section 16 (c) of the Act, it is not necessary for the plaintiff to aver in the same words used in the section, i.e., ready and willing to perform the contract. Absence of the specific words in the plaint would not result in dismissal of the suit if sufficient fact and evidence are brought on record to satisfy the Court the readiness and willingness to perform his part of the contract.
5) Trimbak Shankar Tidke. vs. Nivratti Shankar Tidke in AIR 1985 Bombay 128, wherein it is held that readiness and willingness of performing specific performance of a contract is explained when entire amount has been paid by the purchaser.
6)Siniginieedi Hymavathi and another vs. V.Nageswara Rao and others in 2006 (1) ALD 655, wherein it is held by the learned Single Judge of this Court that when document is 13 BSS,J S.A.No.171 of 2017 admitted in evidence without raising any objection, at later stage cannot be challenged.
7)Javer Chand and others vs. Pukhraj Surana in AIR 1961 Supreme Court, 1655, wherein it is held by the Hon'ble Apex Court that when unstamped document marked as exhibit in the case and used by parties in examination and cross- examination of witnesses, which cannot be reviewed or revised in the later stage.
He prays to allow the appeal.
15. The learned Counsel for the respondents mainly contended that as per the recital in Ex.A1, the specific date is fixed for specific performance of a contract, i.e., 30.04.1992, and the plaintiff who said to be paid entire sale consideration failed to issue any legal notice by the plaintiff to show that she is ready and willing to perform her part of contract, and suit is filed 16 years after execution of Ex.A1/Agreement of sale, due to that as per Article 54 (1) of Limitation Act, the suit itself is barred by limitation. He would further submit that no relief is claimed in the suit against the 2nd defendant, and the plaintiff has not sought for cancellation of original of Ex.A23/ 14 BSS,J S.A.No.171 of 2017 Settlement Deed executed by the 1st defendant in favour of the 2nd defendant. He argued that before filing the suit for specific performance, notice has to be issued, which failed to issue by the plaintiff, due to that suit for specific performance is not maintainable, which is liable to be dismissed, which rightly held by the learned First Appellate Judge. He relied on the following precedent law:
1)Baddam Prathap Reddy vs. Chennadi Jalapathi Reddy and another in 2008 (5) ALT 192 (S.B.), wherein it is held that before filing suit for specific performance of a contract, notice has to be issued, as per Appendix A, Form Nos.47 and 48 of CPC. But the said Judgment was set aside by the Hon'ble Apex Court in Civil Appeal Nos.7818-7819 of 2009, Judgment dated 27.08.2019, in respect observation with regard to opinion of Handwriting Expert. It is also held in the said decision at para No.17, which reads as under:
"17. Moreover, the High Court has wrongly observed that the plaintiff has not produced any evidence to prove that he demanded the performance of sale after the execution of the agreement of sale. The filing of a suit for specific performance of an agreement of sale is governed by Section 16(c) of the Specific Relief Act, 1963, read with Article 54 of the Schedule of the Limitation Act, 1963. In addition to this, Forms 47 and 48 of Appendix A of the Code of Civil Procedure, 1908 prescribe the format of the plaint for such a suit. Thus, a plaint which seeks the relief of specific performance of an agreement/contract must comply with all these requirements. In 15 BSS,J S.A.No.171 of 2017 the matter at hand, the plaintiff has specifically averred in his plaint that he was ready and willing to perform his part of the contract under the agreement of sale dated 20.04.1993. It was also specifically stated that the plaintiff had been demanding that the first defendant receive the balance consideration of Rs. 58,800/- and execute a regular registered sale deed at his cost, but the first defendant had been avoiding the specific performance of the agreement of sale. In light of this, in our considered opinion, all the formalities which are to be pleaded and proved by the plaintiff for getting a decree of specific performance have been fulfilled. Moreover, there cannot be any proof of oral demand. Be that as it may, we are satisfied from the evidence that the plaintiff had sufficient money to pay the balance consideration to the first defendant and was ready and willing to perform his part of the contract".
He prays to dismiss the appeal.
16. This Second Appeal was admitted on the following substantial questions of law raised at Ground No.10 of Memorandum of Grounds of Appeal, which reads as under:
1. "Whether the lower appellate Court is justified in holding that the plaintiff has not pleaded ready and willingness and hence the claim for specific performance of contract is bad in law and proof, despite its own finding that plaintiff had paid the entire consideration and was put in possession on 26.12.1991 and nothing remains to be performed from his side, by mis-interpreting Section 16 (c) of Specific Relief Act, 1961?
2. When the contract admittedly did not fix any time for registration of sale deed as essence of contract, and when parties also do not intend so, and when second 16 BSS,J S.A.No.171 of 2017 part of Article 54 of the Limitation Act, 1963 applies, would the delay in filing the suit dis-entitle the plaintiff seeking the equitable relief of specific performance especially in the absence of refusal by defendant?
3. When a plea of limitation involved mixed questions of law and fact, and in the absence of such a plea, and in the absence of any issue in that regard, can the lower appellate Court, entertain such a plea, and interfere with the well considered Judgment of the trial Court, even without framing a point for consideration, and is not such finding perverse?
4. Whether the lower appellate Court can discard Ex.A1 agreement of sale as not duly stamped, when the same was marked in evidence without there being any objection, especially when the law laid down by Apex Court, in AIR 1961 SC 1655, ordains that under Section 36 of the Stamp Act, if a document not properly stamped is admitted in evidence without any objection it is not open either for trial Court or appellate Court or revisional Court to go behind such order"?
5. When the defendants have taken false pleas, such as denial of the very Agreement of Sale Ex.A1 as forged and fabricated, and denial of receipt of any amounts towards consideration and non-delivery of possession 17 BSS,J S.A.No.171 of 2017 and when both the trial Court as well as the lower appellate Court, categorically found that the Agreement of Sale is genuine, entire consideration was paid and received, and possession was believed to be with the plaintiff only and having not found any blemish on the part of the plaintiff, is it justifiable for the appellate Court, to reject the equitable relief on hyper technicalities?
6. When admittedly plaintiff is put in possession and enjoyment of plaint schedule property and made improvements and entitled under law protection under Section 53A of the Transfer of Property Act, could the lower appellate Court refuse injunction"?
17. As per Section 100 of CPC, this Court can interfere with the Judgment of the Appellate Court, if it is satisfied that case involves a substantial question of law. A finding of fact recorded by the Appellate Court is binding on this Court, unless there is any error of law in such finding.
18. The Hon'ble Apex Court in Chandrabhan (Deceased) Through LRs. And Others - Appellants vs. Saraswati and Others - Respondent(s) in Civil Appeal No.NIL of 2022 (Arising out of S.L.P.(C) No.8736 of 2016) Judgment dated 18 BSS,J S.A.No.171 of 2017 22.09.2022, held at Para No.33 of the Judgment, which reads as under:
"33. The principles relating to Section 100 of the CPC relevant for this case may be summarised thus:
(i) An inference of fact from the recitals or contents of a document is question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is a misconstruction of a document or wrong application of a principle of law in constructing a document, it gives rise to a question of law. (Emphasis supplied)
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which effects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents and involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
(iii) The general rule is that the High Court will not interfere with findings of facts arrived at by the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the Courts have drawn wrong inferences from proved facts by applying law erroneously; or (iii) the Courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence," it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
19. It is settled law that the relief of specific performance of a contract for the sale of immovable property is governed by 19 BSS,J S.A.No.171 of 2017 equity and discretion of the Court. Ordinarily, the relief of specific performance should be granted, unless equitable consideration point to its refusal. So, the Court has to consider various circumstances, such as conduct of the parties, their respective interest under the contract and circumstances of the case to decide whether such relief is to be granted. Therefore, merely because it is lawful to grant specific relief, the Court need not grant the order. Even, the Court would not exercise discretion in favour of the specific performance where the contract is not equal and fair, though such contract is not void. It is also settled law that the person who seeks the equitable relief of specific performance, must come to the Court with clean hands. It is also settled law that a person, who seeks equitable relief of specific performance shall come to the Court with clean hands, and in case of contract of immovable property, time presumed not to be essence of contract, but even then it has to be performed in a reasonable time. The Hon'ble Apex Court Constitution Bench in Madina Begum & another vs. Shiv Murti Prasad Pandey & others in Civil Appeal No.6687 of 2016, Judgment dated 01.08.2016, 20 BSS,J S.A.No.171 of 2017 explained Article 54 of Limitation Act, and also discussed the decision of Ahmadsahab Abdul Mulla (2) (Dead) vs. Bibijan and others 1 , which explained 'date' and 'fixed' appearing in Article 54 and held at Paras 18 to 20, which reads as under:
"18. In Ahmadsahab Abdul Mulla (2) (Dead) v. Bibijan and Ors.(2009) 5 SCC 462, the following question was considered by a three judge Bench of this Court:
"Whether the use of the expression "date" used in Article 54 of the Schedule to the Limitation Act, 1963 (in short "the Act") is suggestive of a specific date in the calendar?"
19. While answering this question on a reference made to the three judge Bench, this Court considered the meaning of the word "date" and "fixed" appearing in Article 54. Upon such consideration, this Court held that the expression "date fixed for the performance" is a crystallized notion. When a date is fixed it means there is a definite date fixed for doing a particular act. Therefore, there is no question of finding out the intention from other circumstances. It was reiterated that the expression "date" is definitely suggestive of a specified date in the calendar. Paragraphs 11 and 12 of the Report in this regard are of importance and they read as follows:-
"11. The inevitable conclusion is that the expression "date fixed for the performance" is a crystallized 1 (2009) 5 SCC 462 21 BSS,J S.A.No.171 of 2017 notion. This is clear from the fact that the second part "time from which period begins to run" refers to a case where no such date is fixed. To put it differently, when date is fixed it means that there is a definite date fixed for doing a particular act. Even in the second part the stress is on "when the plaintiff has notice that performance is refused". Here again, there is a definite point of time, when the plaintiff notices the refusal. In that sense both the parts refer to definite dates. So, there is no question of finding out an intention from other circumstances.
12. Whether the date was fixed or not the plaintiff had notice that performance is refused and the date thereof are to be established with reference to materials and evidence to be brought on record. The expression "date" used in Article 54 of the Schedule to the Act definitely is suggestive of a specified date in the calendar. We answer the reference accordingly. The matter shall now be placed before the Division Bench for deciding the issue on merits."
20. Quite independently and without reference to the aforesaid decision, another Bench of this Court in Rathnavathi and Another v. Kavita Ganashamdas (2015) 5 SCC 223 came to the same conclusion. It was held in paragraph 42 of the Report that a mere reading of Article 54 would show that if the date is fixed for the performance of an agreement, then non-compliance with the agreement on the date would give a cause of 22 BSS,J S.A.No.171 of 2017 action to file a suit for specific performance within three years from the date so fixed. But when no such date is fixed, the limitation of three years would begin when the plaintiff has notice that the defendant has refused the performance of the agreement. It was further held, on the facts of the case that it did not fall in the first category of Article 54 since no date was fixed in the agreement for its performance."
20. In the present case, the main contention of the plaintiff is that though date is fixed for performance of a contract, when the 1st defendant has received entire sale consideration amount, and delivered possession of the plaint schedule property, nothing remains to be performed, except executing registered sale deed, due to that though suit is filed 16 years after execution of Ex.A1/Agreement of sale, which is not barred by limitation. It is the contention of the plaintiff that there is no necessity to plead readiness and willingness in the plaint, and no necessity to issue prior notice when she already paid entire sale consideration and possession also delivered to her. It is no doubt true that in the appellate Court, Ex.A1 was sent to the Handwriting Expert, who also examined as PW.5, and deposed that thumb impression contained in Exs.A1 to A4 23 BSS,J S.A.No.171 of 2017 are belong to the 1st defendant and thereby the plaintiff proved execution of Ex.A1/Agreement of sale in favour of the plaintiff.
21. The agreement of sale will not create or extinguish right in the immovable property, and on the basis of agreement of sale, no title will be passed unless regular registered sale deed is executed, due to that mutation of plaintiff's name in Grampanchayat records and payment of electricity consumption charges will not give any right to the plaintiff to claim the plaint schedule property, unless she plead and prove readiness and willingness to perform her part of contract within the date fixed in Ex.A1/Agreement of sale, though the plaintiff said to be paid entire sale consideration amount under Ex.A1. Admittedly, within 30.04.1992 the plaintiff has not issued any legal notice to the 1st defendant to execute registered sale deed, and it is also not pleaded in the plaint that she is ready and willing to perform her part of contract by obtaining registered sale deed from the 1st defendant.
22. It is no doubt true that Ex.A1/Agreement of sale not contains recital of delivery of possession, but in the plaint it is 24 BSS,J S.A.No.171 of 2017 averred that possession was delivered on the date of Ex.A1, which was admitted without objection with regard to stamp duty and penalty, and the said objection cannot be raised in view of bar under Section 36 of Indian Stamp Act, which failed to consider by the First Appellate Court. The learned First Appellate Judge elaborately discussed precedent law with regard to requirement of readiness and willingness to perform specific performance of a contract, which has to be pleaded and proved by the plaintiff when she is seeking equitable relief of specific performance of a contract. As rightly held by the learned Appellate Judge that readiness and willingness as contemplated under Section 16 (c) is to be in a spirit and substance, and not merely by words. The learned Appellate Judge rightly followed the ratio laid down by this Court in M.Rangaiah vs. T.V.Satyanarayana Rao and another2, wherein it is held that as per Forms 47 and 48 of Appendix-A of CPC, notice has to be issued before instituting the suit for specific performance, which failed to do so by the plaintiff in the present case. The Hon'ble Apex Court in Chennadi Jalpathi Reddy case, has not held that no notice is required to be 2 2009 (6) Alt 709 25 BSS,J S.A.No.171 of 2017 issued before filing of the suit, and only observed that in the facts and circumstances of the case, as plaintiff specifically averred in the plaint that he is readiness and willingness to perform his part of contract and he had been demanding the first defendant to receive the balance of consideration and to execute registered sale deed, which was avoided by the first defendant therein and all the formalities are to be pleaded and proved by the plaintiff while seeking the relief of specific performance.
23. In the present case, it is not pleaded in the plaint that the plaintiff is ready and willing to perform her part of contract, which is mandatory as per Section 16 (c) of Specific Relief Act, and no prior notice is issued to the 1st defendant demanding her to perform her part of contract, and instituted the suit for specific performance of a contract 16 years after execution of Ex.A1/Agreement of sale, which rightly held by the First Appellate Court that as per Article 54 of Limitation Act, the suit is barred. Though, the plea of limitation has not pleaded by the defendants in the written statement, in view of Article 54 of Limitation Act as specific date has been fixed in 26 BSS,J S.A.No.171 of 2017 Ex.A1/Agreement of sale for performance of a contract, the Court can consider the same in view of Section 16 (c) of Specific Relief Act as rightly held by the learned First Appellate Judge.
24. The claim of the plaintiff for specific performance of a contract made by the plaintiff about 16 years after agreement of sale, and 14 years after Ex.A4/Part payment, is clearly barred by limitation. Simply because possession has been delivered to the plaintiff by the 1st defendant and entire sale consideration has been paid by the plaintiff, that itself not amounts to compliance of readiness and willingness to perform her part of contract by the plaintiff in the absence of specific pleading in the plaint and not issuing prior legal notice to the 1st defendant. Even the plaintiff filed IA No.1 of 2022 to receive certified copy of Judgment and Decree in OS No.28 of 2017 on the file of Principal Junior Civil Judge, Kovur filed by the 2nd defendant, which was dismissed in view of pendency of the present Second Appeal, and also filed deposition of 2 nd defendant as PW.1 in the said suit, which are no way helpful to the case of the plaintiff in view of her silence about 16 years 27 BSS,J S.A.No.171 of 2017 for not seeking specific performance of a contract, though specific date is fixed in Ex.A1/Agreement of sale for performance of a contract. The date is fixed for performance of a contract is not only for payment of entire consideration amount, and also for obtaining registered sale deed by the plaintiff from the 1st defendant by issuing proper notice, if she is failed to do so, which is not complied by the plaintiff in the present case. The First Appellate Court has rightly held that the plaintiff has not come to the Court, seeking equitable relief of specific performance of a contract within a reasonable time and the claim of the plaintiff is barred by limitation.
25. Basing on material and evidence, the First Appellate Court has rightly appreciated the evidence, and set aside the finding of the trial Court, and dismissed the suit. The substantial questions of law framed in this Second Appeal are answered in favour of the 2nd defendant and against the plaintiff.
26. In the result, this Second Appeal is dismissed, confirming the Judgment and Decree of the Appellate Court. In the circumstances of the case, there shall be no order as to costs. 28
BSS,J S.A.No.171 of 2017 As a sequel, pending miscellaneous applications, if any, shall stand closed. The Interim Orders granted earlier, if any, shall stand vacated.
___________________________ JUSTICE BANDARU SYAMSUNDER Dt:11.03.2024.
Bsv 29 BSS,J S.A.No.171 of 2017 HON'BLE SRI JUSTICE BANDARU SYAMSUNDER S.A.No.171 of 2017 Date: 11.03.2024 Bsv