Karnataka High Court
Mallappa @ Malleshappa Fakirappa vs Veeresh Channaveerappa Anad on 21 July, 2022
-1-
RSA No. 1186 of 2008
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 21ST DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE E.S. INDIRESH
REGULAR SECOND APPEAL NO.1186 OF 2008 (SP)
BETWEEN:
1. Mallappa S/o. Fakirappa Goudappanavar,
Since deceased by his L.Rs.
1a. Smt. Suvarna W/o. Mallappa Goudappanavar,
Age 65 years, Occ: Household work,
R/o. Balagi Oni, Kamalapur,
Dharwad.
1b. Smt. Vidyavati W/o. Prakash Nagnanur,
Age 44 years, Occ: Household work,
R/o. Balagi Oni, Kamalapur,
Dharwad.
1c. Smt. Veena D/o. Mallappa Goudappanavar,
Age 41 years, Occ: Advocate,
R/o. Balagi Oni, Kamalapur,
Dharwad.
1d. Sri. Veerendra S/o. Mallappa Goudappanavar,
Age 39 years, Occ: Private Service,
R/o. Balagi Oni, Kamalapur,
Dharwad.
1e. Sri. Vijay S/o. Mallappa Goudappanavar,
Age 35 years, Occ: Private service,
R/o. Balagi Oni, Kamalapur, Dharwad
...Appellants
(By Sri. V.P.Kulkarni and Sri. Shivaraj C. Bellakki, Advocates)
AND:
-2-
RSA No. 1186 of 2008
1. Veeresh S/o. Channaveerappa Anad
Age: Major Occ: student,
R/o. Patanashetti Building, Holenarayapur,
Kamalapur road, Dharwad (Dead)
2. Smt Drakshayani W/o Channaveerappa Anad
Age: Major, Occ: House wife, R/o Hombaradi,
Tq and Dist. Haveri,
3. Sadanand S/o. Channaveerappa Anad
Age: Major, Occ: Agriculture, R/o Hombaradi,
Tq and Dist Haveri.
...Respondents
(Smt. Rajashree Shankar Havaldar, Advocate
for Sri. Gurudev Gachchinamath, Advocate for R1 and R2)
This Regular Second Appeal is filed under Section 100 of
Code of Civil Procedure against the Judgment and Decree dated
29.11.2007 passed in R.A.No.111/2003 on the file of the II
Additional Civil Judge (Sr. Dn.) Dharwad, dismissing the appeal
and confirming the Judgment and Decree dated 13.03.2003
passed in O.S.No.51/1997 on the file of the Principal Civil Judge
(Sr. Dn.) and Prl. JMFC Court, at Dharwad seeking specific
performance of contract.
In this appeal, argument being heard, judgment
reserved, coming on for pronouncement of Orders, this day,
the Court delivered the following:
JUDGMENT
This Regular Second Appeal is filed by the plaintiff, challenging the Judgment and Decree dated 29th November, 2007 passed in Regular Appeal No.111 of 2003 on the file of the II Additional Civil Judge (Sr. Dn.), Dharwad, confirming the Judgment and Decree dated 13th March, 2003 in Original Suit -3- RSA No. 1186 of 2008 No.51 of 1997 on the file of the Principal Civil Judge (Jr. Dn.) and Principal JMFC at Dharwad, decreeing the suit in part.
2. For the sake of convenience, the parties in this appeal are referred to with their status and rank before the trial Court.
3. It is the case of the plaintiff that the defendant No.1 is the owner of the property bearing survey No.20/A/1A/1B2/A/1A of Kamalapura Village, Dharwad. Defendant No.2 is the son of defendant No.1. It is further averred that the defendant No.1 was intending to purchase an alternative property at Hombardi village of Haveri Taluk and as such, he intended to sell six guntas of land for total consideration of Rs.9,000/-; and as such, the plaintiff paid Rs.3,000/- as advance on 28th August, 1974 and executed the agreement of Sale. It is also averred that the defendant No.1 delivered the possession of the property in question to the plaintiff. Again on 30th September, 1974, defendant No.1 entered into an agreement to sell eight guntas of land and as such, received Rs.13,000/- in advance. It is further stated in the plaint that defendant No.1 has received a total amount of -4- RSA No. 1186 of 2008 Rs.16,000/- as advance to sell the suit schedule property i.e. six guntas plus eight guntas. It is further averred in the plaint that plaintiff was ready and willing to pay the balance amount for execution of the registered sale deed, however, the rider in the sale agreement was that the defendants have to obtain permission from the government to sell the suit schedule property. The plaintiff approached defendants on several occasions, however, the defendants postponed the execution of the registered sale deed and as such, the plaintiff caused notice dated 14th December, 1996 to the defendants for which defendants have not responded. Hence, the plaintiff filed suit seeking specific relief of agreements dated 28th August, 1974 and 30th September, 1974.
4. On service of notice, defendants entered appearance and filed detailed written statement. Defendants contended that the suit is barred by limitation and further stated that the plaintiff failed to pay the balance amount within the reasonable period and as such, the defendant cancelled the agreement of sale referred to above, inter alia, sought for dismissal of the suit.
-5-RSA No. 1186 of 2008
5. Based on the pleadings on record, the trial Court framed issues for its consideration. In order to prove the case, plaintiff has examined four witnesses as PW1 to PW4 and produced 28 documents and same were marked as Exhibits P1 to P28. On the other hand, defendant No.2 was examined as DW1 and has not produced any document. The trial Court, after considering the material on record, by its Judgment and Decree dated 13th March, 2003, decreed the suit in part, directing the defendants to refund the earnest money of Rs.16,000/- with six percent interest from the date of agreement of sale and also directed to pay damages of Rs.5,000/- to the plaintiff within six months from the date of the Judgment and Decree. Being aggrieved by the same, the plaintiff preferred RA No.111 of 2003 before the First Appellate Court and same was resisted by defendants. The First Appellate Court, after considering the material on record, dismissed the appeal, consequently, Judgment and Decree in Original Suit No.51 of 1997 was confirmed. Being aggrieved by the same, the plaintiff has preferred this Second Appeal.
6. This Court, vide order dated 15th September, 2009, framed the following substantial questions of law: -6- RSA No. 1186 of 2008
(i) Whether the Courts below were justified in refusing the decree of specific performance even after rendering a finding with regard to the execution of sale agreements dated 28.08.1974 and 30.09.1974 and also the conditions agreed therein?
(ii) Whether in such circumstances, while refusing specific performance and ordering refund of amount, the Courts below have exercised the discretion contemplated under Section 20 of the Specific Relief Act in its correct perspective?
7. Heard Sri. V.P. Kulkarni & Sri Shivaraj C. Bellakki, learned counsel appearing for the appellant and Sri. Gurudev I. Gachchinamath; and Smt. Rajashree Shankar Havaldar, learned counsel appearing for respondents No.1 and 2.
8. Sri. V.P. Kulkarni, learned counsel appearing for the appellant argued that the plaintiff has proved both the agreements of sale dated 28th August, 1974 and 30th September, 1974 and therefore, declining to grant relief of specific performance of the agreements, requires interference in this appeal. He further contended that plaintiff has proved the aforementioned agreements of sale by examining witnesses -7- RSA No. 1186 of 2008 and therefore, the finding recorded by the trial Court requires to be interfered with in this appeal. He further contended that the appellant has filed application in IA.II of 2014 under Order XLI Rule 27 of Code of Civil Procedure, seeking to produce certified copy of the sale deed dated 18th September, 1974 and record of rights pertaining to the land bearing survey No.150 and 153, which are relevant for adjudication of this appeal and accordingly, sought for allowing the application, so also, interfere with the impugned judgment and decree passed by the courts below. To buttress his arguments, learned counsel appearing for the appellant relied upon the Judgment of this Court in the case of Vishnu Vs. Abdulgani, reported in 2013 (1) KCCR 105; and the Judgments of Hon'ble Apex Court in the case of Choudhary Sahu (dead) by his L.Rs. Vs. State of Bihar reported in (1982) 1 SCC 232; and in the case of Saradamani Kandappan Vs. S. Rajalakshmi and others reported in (2011) 12 SCC 81.
9. Per contra, Smt. Rajashree Shankar Havaldar, learned counsel appearing for the respondents argued in favour of the impugned Judgment and Decree passed by the Courts below and further submitted that the defendants have replied -8- RSA No. 1186 of 2008 to the legal notice issued by the plaintiff, however, the plaintiff has not taken any steps to complete the transaction within the reasonable period pursuant to execution of the agreements of sale and therefore, she sought for dismissal of the appeal. In support of her submission, the learned counsel relied upon the judgments of Hon'ble Apex Court in the case of Shenbagam and others Vs. K.K.Rathinavel, reported in AIR 2022 SC 1275; in the case of Surinder Kaur (D) through L.Rs. Jasinderjit Singh (D) through L.Rs Vs. Bahadur Singh (D) through L.Rs., reported in (2019) 8 SCC 575; in the case of Sakku Bai Amman Vs. R. Babu Reddiar and others, reported in AIR 1977 Mad 223; and in the case of Man Kaur (Dead) by L.Rs. Vs. Hartar Singh Sangha, reported in 2010 AIR SCW 6198.
10. In the light of the submission made by the learned counsel appearing for the parties, I have perused the records and given my anxious consideration to the factual aspects of the case. It is not in dispute that the defendants agreed to sell six guntas of the schedule property as per Agreement of sale dated 28th August, 1974 (Exhibit P4) and eight guntas as per Agreement of Sale dated 30th September, 1974 (Exhibit P5) in -9- RSA No. 1186 of 2008 favour of the plaintiff, totally 14 guntas of land, and as such, received Rs.16,000/- as advance. Defendant No.2 has admitted the signature of his father-Defendant No.1 on the agreements of sale, dated 28th August, 1974 and 30th September, 1974. The condition stipulated in the agreement of sale dated 30th September, 1974 that the defendant agreed to execute the sale deed in favour of the plaintiff, after obtaining requisite permission from the Government. It is the case of the plaintiff that he was always ready and willing to perform his part of the contract. It is not in dispute that time was not mentioned in the agreements of sale to complete the entire transaction, subject to aforementioned condition of obtaining necessary permission from the Government. In this regard, Exhibit P6 is the Legal Notice dated 14th December, 1996 issued by the plaintiff to the defendants calling upon the defendants to execute the registered Sale Deed. No documents are forthcoming from the records pertaining to transaction between the agreements of sale during 1974 till the issuance of legal notice dated 14th December, 1996 (Exhibit P6) at the instance of the plaintiff. The same reads thus:
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- 10 -RSA No. 1186 of 2008
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- 11 -RSA No. 1186 of 2008
ºÀÆqÀĪÀgÀÄ. ªÀÄvÀÄÛ ¸Àzg À À PÉÆÃlð RZÀÄð ºÁUÀÆ F £ÉÆÃn¸À RZÀÄð ¤ÃªÉà ¨sj À ¸À¨ÃÉ PÀÄ, CAvÀ PÉÆlÖ £ÉÆÃn¸ÀÄ.
(DgïÀ.AiÀÄÄ. ¨É¼ÀîQÌ) ªÀQîgÀÄ, zsÁgÀªÁqÀ."
(emphasis supplied)
11. The said legal notice is served on the defendants 1 and 2. Exhibit P9 is the notice dated 15th February, 1994 issued by the defendants to the plaintiff, which reads as under:
"EAzÀ, J.d.¤dUÀtª Ú g À À, ªÀQîgÀÄ, dPÀÌtª Ú g À À §°ÙAUÀ, ¦.©.gÉÆÃqÀ, zsÁgÀªÁqÀ.
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2) ²æà £ÁUÀ¥Àà UËqÀPÀÌ£ª
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- 12 -RSA No. 1186 of 2008
d«ÄãÀÄ ªÀiÁgÀ®Ä C£ÀĪÀÄw ¨ÉÃUÀ£ÃÉ ¹UÀzÀ PÁgÀt, ¤ªÀÄUÉ ªÀiÁgÁl ªÀiÁqÀ®Ä DVgÀ°®è. £ÀªÀÄä ¥ÀPU Àë ÁgÀgÀÄ ¸ÀzjÀ d«ÄãÀÄß C©üªÀȢݥr À ¹ ªÀiÁgÁl ªÀiÁqÀ®Ä ¸ÀgPÀ ÁgÀzª À j À AzÀ ¥Àgª À Á¤UÉ ¥Àq¢ É gÀÄvÁÛg.É FUÀ £ÀªÀÄä ¥ÀPUÀë ÁgÀjUÉ ¸Àzj À à RįÁè eÁUÉAiÀÄ£ÀÄß ªÀiÁgÁl ªÀiÁqÀ®Ä ¸ÀgPÀ ÁgÀ¢AzÀ C£ÀĪÀÄwAiÀÄÄ ¹PÀÌ £ÀAvÀgÀ CªÀgÄÀ ¤ªÀÄUÉ ªÀiËQPÀªÁV C£ÉÃPÀ ¸À® RjâAiÀÄ E£ÀÄß½zÀ ºÀtªÀ£ÀÄß ºÁUÀÄ EvÀgÃÉ ªÉZU ÀÑ ¼ À À£ÀÄß ¤Ãr, Rjâ ¥Àvª Àæ £À ÀÄß £ÉÆÃAzÁ¬Ä¹PÉƼÀî®Ä w½¹zÀgÀÆ ¸ÀºÀ, ¤ÃªÀÅ D §UÉÎ AiÀiÁªÀÅzÉà PÀª æ ÀĪÀ£ÀÄß PÉÊUÉÆArgÀĪÀÅ¢®è. £ÀªÀÄä ¥ÀPU Àë ÁgÀjUÉ §gÀ¨ÃÉ PÁzÀ ¨ÁQà ºÀt ºÁUÀÆ EvÀgÃÉ RZÀÄðUÀ¼£ À ÀÄß ¤Ãr Rjâ ¥ÀvÀæ £ÉÆÃAzÁ¬Ä¹PÉÆArgÀĪÀ¢®è.
F £ÉÆÃn¹£À ªÀÄÆ®PÀ w½¸ÀĪÀÅzÉ£AÉ zÀgÉ, ¤ÃªÀÅ £ÀªÀÄä ¥ÀPÀëUÁgÀjUÉ RjâAiÀÄ ¨ÁQ ºÀt ºÁUÀÆ EvÀgÉ ªÉZU ÀÑ ¼ À À£ÀÄß F £ÉÆÃn¸ÀÄ ªÀÄÄnÖzÀ 7 ¢£ÀU¼ À ° À è PÉÆlÄÖ, Rjâ ¥Àvª Àæ £ À ÀÄß £ÉÆAzÁ¬Ä¹PÉƼÀî¨ÃÉ PÀÄ. RjâUÉ vÀU® À ĪÀ ªÉZª ÀÑ À£ÀÄß ¤ÃªÉà ¨sj À ¸À¨ÃÉ PÀÄ. EzÀPÉÌ vÀ¦àz° À è, £ÀªÀÄä ¥ÀPU Àë ÁgÀgÀÄ ¤ªÉÆäq£ À É Rjâ ¸ÀAZÀUÁgÀ ¥ÀPæ ÁgÀ DzÀ PÀgÁgÀ£ÀÄß ªÀiÁ£Àå ªÀiÁqÀĪÀ¢®è. ªÀÄvÀÄÛ ¸Àzj À à Rjâ ¸ÀAZÀUÁgÀ ¥ÀvÀæ ªÀ CzÀgÀ ªÉÄÃgÉUÉ DUÀĪÀ ªÀåªÀºÁgÀªÀ£ÀÄß gÀzÀÄÝ ¥Àr¸ÀÄvÁÛg.É D §UÉÎ ¸ÀÆPÀÛ PÀª æ ÀÄ PÉÊPÉƼÀÄîvÁÛg.É F £ÉÆÃn¹£À RZÀÄð gÀÆ.300-00 ¤ªÀÄä ªÉÄðzÉ w½¬Äj CAvÀ PÉÆlÖ £ÉÆÃnøÀÄ.
zsÁgÀªÁqÀ.
¢£ÁAPÀ : 15-2-1994 ¤ªÀÄä «±Áé¹PÀ
¸À»/-
(J.f.¤dUÀtߪÀg)À "
12. At this juncture, it is pertinent to refer to the law declared by the Hon'ble Apex Court in the case of Vijay Kumar Vs. Om Prakash, reported in AIR 2018 SC 5098, wherein at paragraphs 7 & 8 of the judgment, it observed thus:
"7. In order to obtain a decree for specific performance, the plaintiff has to prove his readiness and willingness to perform his part of the contract and the readiness and willingness has to be shown through out and has to be established by the plaintiff. In the case in hand, though the respondent- plaintiff has filed the suit for specific performance on 29th April, 2008, the
- 13 -RSA No. 1186 of 2008
respondent-plaintiff has not shown his capacity to pay the balance sale consideration of Rs.22,00,000 (Rupees Twenty Two Lakhs). In his evidence, the respondent- plaintiff has stated that he has borrowed the amount from his friends and kept the money to pay the balance sale consideration. As rightly pointed out by the Trial Court, the respondent-plaintiff could not produce any document to show that he had the amount of Rs.22,00,000 (Rupees Twenty Two Lakhs) with him on the relevant date; nor was he able to name the friends from whom he raised money or was able to raise the money. Further more, as rightly pointed out by the Trial Court, the respondent-plaintiff could have placed on record his Accounts Book, Pass Book or the Statement of Accounts or any other negotiable instrument to establish that he had the money with him at the relevant point of time to perform his part of the contract. We are, therefore, in agreement with the view taken by the Trial Court that the respondent-plaintiff has not been able to prove his readiness and willingness on his part.
8. The relief for specific performance is purely discretionary. Though the respondent-plaintiff has alleged that he was ready and willing to perform his part of the contract, the First Appellate Court ought to have examined first whether the respondent-plaintiff was able to show his capacity to pay the balance money. In our considered view, the First Appellate Court as well as the High Court has not properly appreciated the evidence and the conduct of the parties. The First Appellate Court as well as the High Court, in our view, was not right in
- 14 -
RSA No. 1186 of 2008 reversing the judgment of the Trial Court and the impugned order cannot be sustained and liable to be set aside."
(underlining supplied by me)
13. In the case of I.S. Sikandar D. by L.Rs. Vs. K.Subramani and others, reported in (2013) 15 SCC 27 at paragraph 19 of the judgment, the Hon'ble Apex Court observed thus:
"19. It is a well-accepted principle that in the case of sale of immovable property, time is never regarded as the essence of the contract. In fact, there is a presumption against time being the essence of the contract. This principle is not in any way different from that obtainable in England. Under the law of equity which governs the rights of the parties in the case of specific performance of contract to sell real estate, law looks not at the letter but at the substance of the agreement. It has to be ascertained whether under the terms of the contract the parties named a specific time within which completion was to take place, really and in substance it was intended that it should be completed within a reasonable time. An intention to make time the essence of the contract must be expressed in unequivocal language."
(underlining supplied by me)
- 15 -
RSA No. 1186 of 2008
14. It is also well-established principle in law that the parties to the agreement shall aver and prove that they are always ready and willing to complete the transaction in the proceedings. In this regard, the law declared by the Hon'ble Apex Court in the case of Pandurang Ganapat Tanawade Vs. Ganapat Bhairu Kadam and others, reported in AIR 1997 SC 463, wherein it is held that, the averment in plaint would establish that the purchaser is ready and willing to perform his part of obligation, and in the present case though the agreements of sale were entered into during 1974, until 1996, no communication transpired between the plaintiff and defendants based on the documents on record, and therefore, I am of the view that, the finding recorded by both the Courts below is just and proper.
15. At this juncture, it is also relevant to follow the law declared by the Hon'ble Apex Court in the case of Man Kaur (supra), wherein, the Hon'ble Apex Court at paragraphs 9 and 11 of the judgment, observed thus:
9. Section 16(c) of the Specific Relief Act 1963 ('Act' for short) bars the specific performance of a contract in favour of a plaintiff who fails to aver and
- 16 -RSA No. 1186 of 2008
prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him (other than terms of the performance of which has been prevented or waived by the defendant). Explanation (ii) to section 16 provides that for purposes of clause (c) of section 16, the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. Thus in a suit for specific performance, the plaintiff should not only plead and prove the terms of the agreement, but should also plead and prove his readiness and willingness to perform his obligations under the contract in terms of the contract. (See : N.P. Thirugnanam to R. Jagan Mohan Rao - AIR 1996 SC 116; Pushparani S.Sundaram v. Pauline Manomani James - 2002 (9) SCC 582; and Manjunath Anandappa v. Tammanasa - 2003 (10) SCC 390). In the first case, this Court held :
"The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to ay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness
- 17 -RSA No. 1186 of 2008
and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of contract."
In Vidhyadhar v. Manikrao - 1999 (3) SCC 573, this Court reiterated the following well recognized legal position:
"Where a party to the suit does not appear in the witness-box and state his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct."
11. To succeed in a suit for specific performance, the plaintiff has to prove: (a) that a valid agreement of sale was entered by the defendant in his favour and the terms thereof; (b) that the defendant committed breach of the contract; and (c) that he was always ready and willing to perform his part of the obligations in terms of the contract. If a plaintiff has to prove that he was always ready and willing to perform his part of the contract, that is, to perform his obligations in terms of the contract, necessarily he should step into the witness box and give evidence that he has all along been ready and willing to perform his part of the contract and subject himself to cross examination on that issue. A plaintiff cannot obviously examine in his place, his attorney holder who did not have personal knowledge either of the transaction or of his readiness and willingness. Readiness and willingness refer to the state of mind and conduct of the purchaser, as also his capacity and preparedness on the other. One without the
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RSA No. 1186 of 2008 other is not sufficient. Therefore a third party who has no personal knowledge cannot give evidence about such readiness and willingness, even if he is an attorney holder of the person concerned."
(emphasis supplied)
16. The Hon'ble Apex Court, in the case of C.S.Venkatesh vs. A.S.C. Murthy (dead) by LRs and others, reported in (2020) 3 SCC 280, at paragraphs 14 and 16 of the judgment, observed thus:
"14. It is settled that the real character of the transaction has to be ascertained from the provisions of the documents view in the light of surrounding circumstances. ...
15. xxx xxx xxx
16. The words "ready and willing" imply that the plaintiff was prepared to carry out those parts of the contract to their logical end so far as they depend upon his performance. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of performance. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of contract, the court must take into consideration the conduct of the plaintiff prior, and subsequent to the filing of the suit along with other attending circumstances. The amount which he has to
- 19 -RSA No. 1186 of 2008
pay the defendant must be of necessity to be proved to be available. Right from the date of the execution of the contract till the date of decree, he must prove that he is ready and willing to perform his part of the contract. The court may infer from the facts and circumstances whether the plaintiff was ready and was already ready to perform his contract."
(emphasis supplied)
17. Though the learned counsel appearing for the appellant argued that the rule is that the specific performance should be not granted if the parties approach the Court with unclean hands and in this regard, it is to be noted that the plaintiff gave wardi to the revenue authority seeking change of mutation based on the agreements referred to above as per Exhibit P2. The same reads as under:
"vÁ®ÆPÀ ºÀÄPÀÄÌA vÁjÃRÄ 5-7-1976. ¨ÁdÆPÉ §gÉzÀ d«ÄãÀÄ, ZÀ£À«ÃgÀ¥Àà gÀÄzÀæ¥Àà C£ÁqÀ EªÀgÀ ªÀiÁ°èÃzÀĬÄzÀÄÝ EzÀ£ÀÄß PɼU À É §gÉzÀ CfðzÁgÀgÀÄ ¸À£Àß 1973 jAzÀ Rjâ ¸ÀAZÀUÁgÀ ¥ÁªÀw ¥ÀPæ ÁgÀ ¸ÁUÀĪÀ½ ªÀiÁqÀvÉÛêÉ."
(emphasis supplied)
18. Undisputably, the alleged agreements are executed during 1974 as per paragraph 3 of the plaint. If that being so, what made the plaintiff to file application seeking transfer of
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RSA No. 1186 of 2008 mutation in his favour stating that the sale agreements are executed during 1973. In this aspect, learned counsel appearing for the respondent was justified in arguing that the plaintiffs are not entitled for equitable relief. That apart, perusal of the entire plaint would indicate that the plaintiff has not stated about the issuance of notice by the defendant on 15th February, 1994 (Exhibit P9) though the plaintiff had received the said notice and replied to the same on 14th December, 1996 (Exhibit P6), that too, after lapse of two years. This would substantiate the fact that the plaintiff has not approached the Court with clean hands seeking discretionary/equitable relief from the Court as the plaintiff deliberately suppressed about the issuance of notice by the defendant as per Exhibit P9 and therefore, both the Courts below are justified in declining to grant relief of specific performance to the plaintiff.
19. Yet another ground for affirming the Judgment and Decree passed by the Courts below is that, the sale agreements were executed during 1974 and the plaintiff has not properly explained the delay of nearly two decades till the issuance of notice on 14th December, 1996 (Exhibit P6). It is also to be
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RSA No. 1186 of 2008 noted that, the defendant issued legal notice canceling the agreements of sale and in this regard, no immediate steps have been taken by the plaintiff and therefore, even if there is variance in the agreements of sale about eight guntas and six guntas, I find force in the submission made by the learned counsel appearing for the respondent that the plaintiff was not ready and willing to execute the registered sale deed in favour of the defendant and hence, the arguments advanced by the learned counsel for the appellant cannot be accepted. In this regard, it is useful to refer to the law declared by the Hon'ble Apex Court in the case of Surinder Kaur (supra), wherein the observation made at paragraphs 13 to 16, read as under:
"13. Explanation (ii) to Section 16(c) of The Specific Relief Act lays down that it is incumbent on the party, who wants to enforce the specific performance of a contract, to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract. This the plaintiff miserably failed to do in so far as payment of rent is concerned.
14. A perusal of Section 20 of The Specific Relief Act clearly indicates that the relief of specific performance is discretionary. Merely because the plaintiff is legally right, the Court is not bound to grant
- 22 -RSA No. 1186 of 2008
him the relief. True it is, that the Court while exercising its discretionary power is bound to exercise the same on established judicial principles and in a reasonable manner. Obviously, the discretion cannot be exercised in an arbitrary or whimsical manner. Sub clause(c) of sub-section (2) of Section 20 provides that even if the contract is otherwise not voidable but the circumstances make it inequitable to enforce specific performance, the Court can refuse to grant such discretionary relief. Explanation (2) to the Section provides that the hardship has to be considered at the time of the contract, unless the hardship is brought in by the action of the plaintiff.
15. In this case, Bahadur Singh having got possession of the land in the year 1964 did not pay the rent for 13 long years and even when he filed the replication in the year 1978, he denied any liability to pay the customary rent. Therefore, in our opinion, he did not act in a proper manner. Equity is totally against him. In our considered view, he was not entitled to claim the discretionary relief of specific performance of the agreement having not performed his part of the contract even if that part is held to be a distinct part of the agreement to sell. The vendee Bahadur Singh by not paying the rent for 13 long years to the vendor Mohinder Kaur, even when he had been put in possession of the land on payment of less than 18% of the market value, caused undue hardship to her. The land was agricultural land. Bahadur Singh was cultivating the same. He must have been earning a
- 23 -RSA No. 1186 of 2008
fairly large amount from this land which measured about 9½ acres. He by not paying the rent did not act fairly and, in our opinion, forfeited his right to get the discretionary relief of specific performance.
16. In view of the above, we allow the appeals, set aside the judgment and decree of all the courts below and dismiss the suit for specific performance. As far as the alternative plea of refund is concerned, we are clearly of the view that since the respondents enjoyed the land for 55 long years without payment of any rent they are not entitled to any relief. No order as to costs."
20. It is also relevant to deduce the law declared by the Hon'ble Apex Court in the case of Shenbagam (supra), wherein the observation made at paragraphs 14 to 18 of the judgment, read as under:
14. Section 16 of the Specific Relief Act provides certain bars to the relief of specific performance. These include, inter alia, a person who fails to aver and prove that he has performed or has always been "ready and "
willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented and waived by the defendant. In JP Builders v. A Ramadas Rao, a two-judge Bench of this Court observed that Section 16(c) mandates "readiness and willingness ‟ of the
- 24 -RSA No. 1186 of 2008
plaintiff and is a condition precedent to obtain the relief of specific performance. The Court held:
"25. Section 16(c) of the Specific Relief Act, 1963 mandates "readiness and willingness" on the part of the plaintiff and it is a condition precedent for obtaining relief of grant of specific performance. It is also clear that in a suit for specific performance, the plaintiff must allege and prove a continuous "readiness and willingness" to perform the contract on his part from the date of the contract. The onus is on the plaintiff.
[...]
27. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non-compliance with this statutory mandate, the court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. "Readiness and willingness" to perform the part of the contract has to be determined/ascertained from the conduct of the parties." (emphasis supplied) The Court further observed that "readiness "
refers to the financial capacity and "willingness "
refers to the conduct of the plaintiff wanting the performance.
15. Similarly, in His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar, a two-judge Bench of this Court observed that "readiness ‟ means the capacity of the plaintiff to perform the contract which would include the financial position to pay the purchase ‟ price. To ascertain "willingness , the conduct of the plaintiff has to be properly scrutinised. The Court noted:
- 25 -RSA No. 1186 of 2008
"2. There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be properly scrutinized. [...] The factum of readiness and willingness to perform the plaintiff's part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract. The facts of this case would amply demonstrate that the petitioner/plaintiff was not ready nor had the capacity to perform his part of the contract as he had no financial capacity to pay the consideration in cash as contracted and intended to bide for the time which disentitles him as time is of the essence of the contract."
(emphasis supplied)
16. The precedents of this Court indicate that the plaintiff must establish that he was "ready and ‟ willing to perform the contract. In this regard, the conduct of the plaintiff must be consistent.
17. In another decision in Atma Ram v. Charanjit Singh, a two-judge Bench of this Court dealt with a case where an agreement for sale of immovable property was entered into between the petitioner and respondent. The date for performance of the contract was fixed as 7 October 1996. A legal notice was issued by the petitioner on 12 November 1996 seeking performance of the contract by the respondent, and thereafter a suit was filed. The plaintiff sought a mandatory injunction to
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RSA No. 1186 of 2008 direct the respondent to execute documents for transfer of the property. However, the trial court chose to treat it as a suit for specific performance of the contract. In declining the relief of specific performance, the Court observed:
"9. Coming to the second aspect revolving around Section 16(c), a look at the judgment of the trial court would show that no issue was framed on the question of readiness and willingness on the part of the petitioner-plaintiff in terms of Section 16(c) of the Specific Relief Act, 1963. The fact that the petitioner chose to issue a legal notice dated 12-11-1996 and the fact that the petitioner created an alibi in the form of an affidavit executed before the Sub-Registrar on 7- 10-1996 (marked as Ext. P-2) to show that he was present before the Sub-Registrar for the purpose of completion of the transaction, within the time stipulated for its performance, was not sufficient to conclude that the petitioner continued to be ready and willing even after three years, on 13-10-1999 when the plaint was presented. No explanation was forthcoming from the petitioner for the long delay of three years, in filing the suit (on 13-10- 1999) after issuing a legal notice on 12-11-1996.
The conduct of a plaintiff is very crucial in a suit for specific performance. A person who issues a legal notice on 12-11-1996 claiming readiness and willingness, but who institutes a suit only on 13- 10-1999 and that too only with a prayer for a mandatory injunction carrying a fixed court fee relatable only to the said relief, will not be entitled to the discretionary relief of specific performance." (emphasis supplied) In assessing the conduct of the plaintiff, the Court in Atma Ram (supra) observed that the delay in filing a suit, specifically one for mandatory injunction, indicates the inconsistent behaviour of the plaintiff. The failure of the trial court to frame an issue relating to the readiness and willingness of the plaintiff to perform the contract is also critical in declining the remedy of specific performance.
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RSA No. 1186 of 2008
18. This Court in P Meenakshisundaram v. P Vijayakumar, dealt with a suit for specific performance of a contract for sale of an immovable property, which had a mortgage over it. In evaluating whether the respondent-plaintiff had established that he was "ready and willing ‟ to perform the contract, the two-judge Bench, held:
"8. As regards suit for specific performance, the law is very clear that the plaintiff must plead and prove his readiness and willingness to perform his part of the contract all through i.e. right from the date of the contract till the date of hearing of the suit. If Respondent 1 was well aware about the encumbrance and the parties had chosen that the balance consideration be paid to the appellant before 20-3-2001 so that the sale deed could be registered without any encumbrance, it was for Respondent 1 to have taken appropriate steps in that behalf for completion of transaction. The facts on record disclose that the first step taken by Respondent 1 after the suit agreement was well after four months, when further amount of Rs 2 lakhs was paid on 21-1-2001. Thereafter nothing was done till 20-3-2001 by which the transaction had to be completed. The record is completely silent about any communication sent around 20-3-2001 towards completion of transaction. As a matter of fact the first step thereafter was six months after the deadline, namely, on 22-9-2001 when the communication (Ext. A-6) was sent along with amount of Rs 10 lakhs. The written submissions filed on behalf of Respondent 1 also do not indicate any steps till this time so as to say that he was all the while ready and willing to complete the transaction.
9. The assertion made by Respondent 1 in Para 7 of the plaint is a mere assertion without any relevant details as to what exactly he had
- 28 -RSA No. 1186 of 2008
done towards fulfillment of his obligations and completion of the transaction."
In P. Meenakshisundaram (supra), the Court dealt with a similar case in which the suit property was encumbered and the sale deed, free from encumbrances, had to be executed after payment of the consideration. The Court noted that there was no communication of the plaintiff with the defendant till the date on which the transaction was to be completed, showing his lack of willingness to perform the contract."
21. In the light of the dictum of the Apex Court referred to above, I am of the view that, the arguments advanced by the learned counsel for the appellant that in the absence of any appeal or cross-objection filed by the respondents herein, the same would disentitle the respondents/defendants seeking dismissal of the suit, cannot be accepted and therefore, the Judgments relied upon by the learned counsel for the appellant in the case of Choudhary Sahu; Saradamani and Vishnu (supra) are of no relevance to the facts of the case.
22. Though the learned counsel appearing for the appellant argued that, substantial amount has been paid to the defendant, however, in view of the discussion made above that the plaintiff failed to prove that he was ready and willing to execute the registered sale deed from the date of execution of
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RSA No. 1186 of 2008 the agreements of sale, cannot be accepted as two decades had elapsed before issuance of Notice at Exhibit P6 by the plaintiff. The factual aspect is self-explanatory. In this regard, the finding recorded by the First Appellate Court at paragraph 17 of the impugned judgment is just and proper and the First Appellate Court has carefully examined and re-appreciated the material on record in its entirety and had rightly confirmed the Judgment and Decree passed by the trial Court. The finding recorded by the First Appellate Court at paragraph 17 is self- explanatory, so as to decline relief of specific performance of the agreement of sale in favour of the plaintiff.
23. In this regard, it is pertinent to refer to the judgment of the Hon'ble Supreme Court in the case of Laxmidevamma and others v. Ranganath and others reported in (2015) 4 SCC 264, whereunder at paragraphs 13 and 16 of the judgment, it is observed as under:
"13. Based upon oral and documentary evidences, the courts below have recorded concurrent findings that the plaintiffs are the owners of 'A' schedule property. While so, the High Court ignoring the material evidence, erred in interfering with the concurrent findings of fact. ...
- 30 -RSA No. 1186 of 2008
14 and 15. xxx xxx xxx
16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that plaintiffs have established their right in 'A' schedule property. In the light of concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for re- appreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the 'A' schedule property for road and that she could not have full fledged right and on that premise proceeded to hold that declaration to plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 C.P.C., concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained."
24. In the case of Thulasidhara and another v. Narayanappa and others reported in (2019) 6 SCC 409, at paragraphs 7.2 and 7.3 of the judgment, the Hon'ble Supreme Court has observed thus:
"7.2 As observed and held by this Court in the case of Kondiba Dagadu Kadam V. Savitribai Sopan Gujar, (1999)3 SCC 722, in the Second Appeal under
- 31 -RSA No. 1186 of 2008
Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous being:
(i) Contrary to the mandatory provisions of the applicable law;
OR
(ii) Contrary to the law as pronounced by the Apex Court;
OR
(iii) Based on inadmissible evidence or no evidence. It is further observed by this Court in the aforesaid decision that if First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in Second Appeal. It is further observed that the Trial Court could have decided differently is not a question of law justifying interference in Second Appeal.
7.3. When a substantial question of law can be said to have arisen, has been dealt with and considered by this Court in the case of Ishwar Dass Jain V. Sohan Lal, (2000) 1 SCC 434. In the aforesaid decision, this Court has specifically observed and held:
10. Under Section 100 CPC, after the 1976 Amendment, it is essential for the High Court to formulate a substantial question of law
- 32 -RSA No. 1186 of 2008
and it is not permissible to reverse the judgment of the first appellate court without doing so.
11. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion.
12. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible.
13. In either of the above situations, a substantial question of law can arise."
25. The Hon'ble Supreme Court in the case of S. Subramanian Vs. S Ramasamy etc. reported in AIR 2019 SCC 3056, at paragraphs 8.1, 8.2 and 8.5 of the judgment, has observed thus:
"8.1. ...As per catena of decisions of this Court, while deciding the second appeal under Section 100 of the CPC, the High Court is not required to re- appreciate the entire evidence on record and to come to its own conclusion and the High Court cannot set aside the findings of facts recorded by both the Courts below when the findings recorded by both the Courts below were on appreciation of evidence. That is exactly what is done by the High Court in the present
- 33 -RSA No. 1186 of 2008
case while deciding the second appeals, which is not permissible under the law.
8.2. Even otherwise, it is required to be noted that as per catena of decisions of this Court and even as provided under Section 100 of the CPC, the Second Appeal would be maintainable only on substantial question of law. The Second Appeal does not lie on question of facts or of law. The existence of 'a substantial question of law' is a sine qua non for the exercise of the jurisdiction under Section 100 of the CPC. As observed and held by this Court in the case of Kondiba Dagadu Kadam, in a second appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous....
8.3. and 8.4. xxx xxx xxx 8.5. As observed hereinabove, while passing the impugned Judgment and Order, the High Court has re- appreciated the entire evidence on record as if the High Court was deciding the first appeal. By the impugned Judgment and Order, while exercising the powers under Section 100 of the CPC and on re appreciation of entire evidence on record, the High Court has set aside the findings of facts recorded by both the Courts below on blending of the suit properties with the joint family properties. The same is wholly impermissible. So far as the facts are concerned, the First Appellate Court is the final court and unless and until the findings of facts
- 34 -RSA No. 1186 of 2008
recorded by the Courts below are found to be manifestly perverse and/or contrary to the evidence on record, the High Court would not be justified in setting aside the findings of facts recorded by the Courts below which were on appreciation of evidence on record. It is not permissible for the High Court to re appreciate the entire evidence on record and come to its own finding when the findings recorded by the Courts below, more particularly, the First Appellate Court are on appreciation of evidence. Therefore, the procedure adopted by the High Court while deciding the Second Appeals, is beyond the scope and ambit of exercise of its powers under Section 100 of Code of Civil Procedure. High Court to re-appreciate the entire evidence on record and come to its own finding when the findings recorded by the Courts below, more particularly, the First Appellate Court are on appreciation of evidence. Therefore, the procedure adopted by the High Court while deciding the Second Appeals, is beyond the scope and ambit of exercise of its powers under Section 100 of the CPC."
26. It is also settled principle of law that, even if two inferences are possible in a given set of circumstances, the finding recorded by the lower appellate court is binding on the high Court. In this connection, it is relevant to deduce the observation made by the Hon'ble Supreme Court in the case of Doddanarayana Reddy (dead) by L.Rs and others v. C.
- 35 -
RSA No. 1186 of 2008 Jayarama Reddy (dead) by L.Rs and others reported in (2020) 4 SCC 649, wherein at paragraphs 25 and 26 of the judgment the Hon'ble Supreme Court has observed thus:
"25. The question as to whether a substantial question of law arises, has been a subject matter of interpretation by this Court. In the judgment reported as Karnataka Board of Wakf V. Anjuman-E-Ismail Madris- Un-Niswan, it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under:
"12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.
13. In Ramanuja Naidu v. V. Kanniah Naidu (1996 3 SCC 392), this Court held:
"It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction under Section 100 of Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did."
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RSA No. 1186 of 2008
14. In Navaneethammal v. Arjuna Chetty (1996 6 SCC 166), this Court held :
"Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to re-appreciate the evidence just to replace the findings of the lower courts. ... Even assuming that another view is possible on a re-appreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material."
15. Again in Secy., Taliparamba Education Society V. Moothedath Mallisseri Illath M.N. (1997 4 SCC 484), this Court held:
"The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact which is impermissible."
26. In a judgment reported as Kondiba Dagadu Kadam v. Savitkibai Sopan Gujar & Ors., this Court held that from a given set of circumstances if two inferences are possible then the one drawn by the lower appellate court is binding on the High Court. In the said case, the First Appellate Court set aside the judgment of the trial court. It was held that the High Court can interfere if the conclusion drawn by the lower court was erroneous being contrary to mandatory provisions of law applicable or if it is a settled position on the basis of a
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RSA No. 1186 of 2008 pronouncement made by the court or based upon inadmissible evidence or arrived at without evidence. This Court held as under:
"5. It is not within the domain of the High Court to investigate the grounds on which findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court had given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the tower appellate court were erroneous being contrary to the mandatory provisions of law applicable of its settled position on the basis of pronouncements made by the apex Court, or was based upon in inadmissible evidence or arrived at without evidence."
27. In the result, the substantial questions of law framed by this Court favours the defendants and the Courts below were justified in refusing the decree of specific performance to the plaintiff.
26. For the reasons afore stated, I pass the following:
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ORDER
1. Appeal fails and accordingly dismissed;
2. Judgment and Decree dated 29th November, 2007 passed in Regular Appeal No.111 of 2003 on the file of the II Additional Civil Judge (Sr. Dn.), Dharwad, confirming the Judgment and Decree dated 13th March, 2003 in Original Suit No.51 of 1997 on the file of the Principal Civil Judge (Jr.Dn.) and Principal JMFC at Dharwad, decreeing the suit in part, is affirmed.
Sd/-
JUDGE LNN/Svh/-