Karnataka High Court
Sri V Ramachandrappa S/O Venkatappa vs Sri H Krishnappa S/O Late Hanumanthappa on 23 March, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
REGULAR FIRST APPEAL NO.885 of 2006
BETWEEN:
SRI V.RAMACHANDRAPPA
S/O VENKATAPPA,
AGED ABOUT 50 YEARS,
R/O VANARASI VILLAGE,
HOLUR HOBLI,
KOLAR TALUK
KOLAR DISTRICT - 563 101.
...APPELLANT
(BY SRI N. MURALI, ADVOCATE)
AND:
1. SRI.H.KRISHNAPPA
S/O LATE HANUMANTHAPPA,
AGED ABOUT 53 YEARS,
R/O VANARASI VILLAGE,
HOLUR HOBLI, KOLAR TALUK
KOLAR DISTRICT - 563 101.
2. SRI.R.RAVI
S/O LATE RAMAIAH,
AGED ABOUT 40 YEARS,
R/O VANARASI VILLAGE,
HOLUR HOBLI,
KOLAR DISTRICT
NOW RESIDING AT
J.J. COLONY, 1ST CROSS,
2
NEKKUNDIPET RAILWAY STATION ROAD,
CHINTAMANI,
KOLAR DISTRICT - 563 242.
...RESPONDENTS
(BY SRI. G. PAPI REDDY, ADVOCATE FOR C/R1;
SHRI M. MURALI, ADVOCATE FOR R2)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF
THE CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND
DECREE DATED 7.3.2006 PASSED IN O.S.NO.171/1998 ON THE FILE
OF THE ADDL.CIVIL JUDGE (SR. DN.), KOLAR, DECREEING THE SUIT
FOR SEPCIFIC PERFORMANCE AND ETC.
IN THIS APPEAL ARGUMENTS BEING HEARD, RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This Regular First Appeal is directed against the judgment and decree dated 07th March, 2006 passed by the Additional Civil Judge (Sr. Dn.) at Kolar in OS No. 171 of 1998. Appellant in this appeal is the defendant No.2 in the Original suit.
2. For the sake of convenience, the parties in this appeal are referred to their status before the Trial Court.
3. The facts of the case in brief are as under:
The plaint averments are, that the defendant No.1 is the absolute owner in possession of the suit schedule property. The 3 plaintiff states that the plaintiff and the defendant No.1 have entered into an agreement of sale on 03rd September, 1998 agreeing to sell the suit schedule property to the plaintiff by the defendant No.1 for a sum of Rs.1,14,000/- and as per the said agreement the defendant No.1 has received an advance sale consideration of Rs.90,000/- from the plaintiff and the plaintiff has agreed to pay the balance consideration of Rs.24,000/- to the defendant No.1 at the time of execution of registration of sale deed. The time for execution of registration of sale deed was fixed as six months from the date of agreement of sale, i.e. 03rd September, 1998. Pursuant to the execution of agreement of sale dated 03rd September, 1998, the plaint averments further reveals, that the plaintiff had requested the defendant No.1 on several occasions to execute the registered sale deed by receiving the balance sale consideration, however, the defendant No.1 was postponing the same on one or the other reasons.
Plaintiff further states that reason for postponing of the registration of sale deed by defendant No.1 was at the instigation of some of the persons in Vanarasi village who were not in good terms with the plaintiff. The plaintiff further states that the defendant No.1, though has entered into an agreement of sale with the plaintiff, has tried to sell the suit schedule property in favour of defendant No.2 on 04th December, 1998. The plaintiff came to know about the said 4 registration of sale deed by defendant No.1 in favour of defendant No.2, and the plaintiff visited the office of Sub-Registrar at Srinivasapura and requested the defendant No.1 not to alienate the suit schedule property. The plaintiff further states that both the defendants have not considered the request made by him, and despite the fact of agreement of sale that the plaintiff has entered into with defendant No.1 on 03rd September, 1998 in respect of the very same schedule property, the defendant No.1, has sold the suit schedule property in favour of the defendant No.2 on 04th December, 1998. He further states that the sale deed entered into between the defendant No.1 and defendant No.2 is not binding on the plaintiff. The plaint averment further states that the defendant No.2 has purchased the suit schedule property knowing fully well about the agreement of sale dated 03rd September, 1998 entered into between the plaintiff and defendant No.1, and plaintiff further states that the defendant No.2 is not a bona fide purchaser for value of the suit schedule property.
Plaintiff further states that he was ready and willing to perform his part of the contract, and as such, the plaintiff has filed the suit for specific performance against defendant No.1 and defendant No.2 in OS No.171 of 1998 on the file of the Additional Civil Judge (Sr. Dn.), at Kolar.5
On suit summons being served, the defendants No.1 and 2 appeared before the trial court and filed their separate written statements opposing the claim of the plaintiff. The defendant No.1 has stated in the written statement that he never entered into an agreement of sale with the plaintiff to sell the suit schedule property for a sum of Rs.1,14,000/- as stated in the plaint averments. The defendant No.1 further denies the factum of receiving advance sale consideration of Rs.90,000/- as against the total consideration of sum of Rs.1,14,000/- and further he denies the averment made in the plaint with regard to receiving of balance sale consideration of Rs.24,000/- on the date of registration of the sale deed within six months pursuant to the execution of agreement of sale dated 03rd September, 1998. Defendant No.1 further denies the averments made in the plaint with respect to the fact that the plaintiff was ready and willing to perform his part of the contract, and the defendant No.1 further submitted that he is the absolute owner of the suit schedule property prior to sale of the suit schedule property in favour of the defendant No.2 and he never intended to sell the suit schedule property in favour of the plaintiff. The defendant No.1 further states that he had received loan of Rs.12,000/- from the defendant No.2 for legal necessity and to take care of the health of his father and since he was not able to repay the said amount of Rs.12,000/- to the 6 defendant No.2, he entered into an agreement of sale dated 18th June, 1998 with the second defendant to sell the suit schedule property for a total consideration amount of Rs.52,000/- and thereby the defendant No.1 has entered into an agreement of sale dated 18th June, 1998 with the defendant No.2. The defendant No.1 further states that since he had received Rs.12,000/- as a loan from the second defendant and as such the said amount of Rs.12,000/- was adjusted towards advance amount under sale agreement dated 18th June, 1998; he further states that he has agreed to receive the balance sale consideration of Rs.40,000/- at the time of execution of registered sale deed, as per the condition stipulated in the agreement of sale, and pursuant to the agreement of sale dated 18th June, 1998, the defendant No.1 has put the defendant No.2 in possession of the suit schedule property. The defendant No.1 further submits that in furtherance and obedience to the agreement of sale dated 18th June, 1998, he has registered the sale deed in favour of defendant No.2 on 04th December, 1998 before the Sub-Registrar. In view of the execution of sale deed dated 04th December, 1998, the defendant No.2 became the absolute owner in possession of the suit schedule property and as such the defendant No.1 denied the averments made in the plaint for seeking relief of specific performance, and accordingly, defendant No.1 has sought for dismissal of the suit.7
The defendant No.2 has filed written statement denying the plaint averments with regard to the agreement of sale dated 03rd September, 1998 between the plaintiff and defendant No.1. He further states that pursuant to the execution of sale agreement dated 18th June, 1998 in the presence of the witnesses to the agreement, the first defendant has put the defendant No.2 in possession of the suit schedule property. The defendant No.2 further states that he paid sum of Rs.12,000/- to the first defendant as a loan and in view of the same, the defendant No.1 has entered into an agreement of sale on 18th June, 1998 to sell the suit schedule property in favour of defendant No.2 for a total consideration of a sum of Rs.52,000/- by adjusting the said sum of Rs.12,000/- which was received as loan towards advance amount in respect of the sale consideration. The defendant No.2 further states that defendant No.1 had agreed to execute registered sale deed in favour of the second defendant by receiving the balance sale consideration of Rs.40,000/- at the time of registration of sale deed.
Pursuant to the execution of agreement of sale dated 18th June, 1998, the defendant No.1 has put the defendant No.2 in possession of the property in question and in due course had executed the registered sale deed in favour of the second defendant on 04th December, 1998 8 by receiving the balance sale consideration of Rs.40,000/- from defendant No.1 and in view of the same, the second defendant became absolute owner in possession of the property in question and is in enjoyment of the suit schedule property. Pursuant to the execution of registered sale deed dated 04th December, 1998, defendant No.2 is paying requisite tax to the competent revenue authorities and as such enjoying the suit schedule property.
Defendant No.2 further states that he is a bona fide purchaser for value of the suit schedule property and the defendant No.2 denies the plaint averments stating about the forging or concocting documents as stated by the plaintiff and the second defendant further submitted that the suit is filed by the plaintiff to harass the defendants and as such, he sought for dismissal of the suit.
4. The trial Court, after adverting to the pleadings made by the parties, has framed the following issues:
(1) Whether plaintiff proves that 1st defendant has executed agreement dated 3.9.1998 agreeing to sell the suit property to him?
(2) Whether plaintiff proves that he was always ready and willing to perform his part of contract?9
(3) Whether plaintiff proves that 2nd defendant was aware of the agreement dated 03.09.1998?
(4) Whether 1st defendant proves that he executed agreement dated 18.6.1998 in favour of 2nd defendant agreeing to sell the suit property to him and in pursuance of it, he executed sale deed dated 04.12.1998?
(5) Is the plaintiff entitled to the relief sought for?
5. In order to prove his case, the plaintiff has examined one Suryanarayanappa as PW1 (brother of the plaintiff and the power of attorney holder of the plaintiff). The plaintiff has examined PW2- Venkatesha Gowda who is an attestor to sale agreement, however, the said witness was discarded as he has not offered himself for cross- examination. PW3-Munivenkatappa is another attestor to the sale agreement. PW4-H M Shankarappa was examined and claims to be a scribe of the sale agreement. Plaintiff himself examined as PW5 and has produced and marked Exhibits P1 to P3. On behalf of the defendants, defendant No.1 was examined as DW1. Defendant No.2 was examined a DW2. DW3-Prakash Reddy and DW4-Rajanna are the witnesses to the sale deed dated 04th December, 1998. DW5-Jyothi is the wife of defendant No.1. DW6-Munivenkatappa is the witness to the sale deed. DW7-Chennakeshavulu is the scribe of sale deed and 10 accordingly the defendants have examined five independent witnesses apart from the defendants No.1 and 2. The defendants have produced and marked Exhibits D1 to D8.
6. The trial court, after considering the material on record and the oral evidence adduced by the parties, has passed the impugned judgment and decree dated 07th March, 2006 decreeing the suit of the plaintiff and further directed the defendant No.1 to execute sale deed in favour of the plaintiff in pursuance of the agreement dated 03rd September, 1998 executed by defendant No.1 in favour of the plaintiff within six months from the date of decree by receiving balance sale consideration of sum of Rs.24,000/- from the plaintiff. The Trial Court further decreed the suit that if the defendant No.1 fails to execute the sale deed in favour of the plaintiff within the time fixed, the plaintiff is at liberty to get the sale deed executed through a process of court. Being aggrieved by the judgment and decree dated 07th March, 2006, in OS No.171 of 1998, the defendant No.2 in the original suit, has filed the instant appeal.
7. I have heard Sri C.M. Nagabhushan, learned counsel appearing along with learned counsel Shri N. Murali for appellant-defendant No.2; Sri G. Papi Reddy, learned counsel for 11 respondent No.1-plaintiff; and Sri M. Murali, learned counsel appearing for Respondent No.2-defendant No.1 and perused the entire lower court records.
8. The main contention of the learned counsel for the appellant is that the trial Court has not framed any issue with regard to the defence taken by the defendant No.2 in the written statement as contemplated under Order XLI Rule 1 CPC which has resulted in miscarriage of justice. He submits that the trial Court has not considered Exhibit D2 agreement dated 18th June, 1998 while arriving at conclusion despite the direction issued by this Court in Writ Petition No.51607 of 2003 dated 07th December, 2005, whereunder this Court has directed the trial Court to admit Ex.D2 in evidence for collateral purpose before arriving at a conclusion in the suit. The trial Court has not whispered anything about the judgment passed by this Court in Writ Petition No.51607 of 2003 and in view of the same, the trial Court has misconstrued the facts and accordingly decreed the suit, which requires to be set aside.
12
9. Learned counsel for the appellant Sri C.M. Nagabhushan further submits that the trial court has erred in holding that the Court has ample power for comparison of disputed and admitted signature of respondent No.1 as per Section 73 of Indian Evidence Act, 1872 (for short hereinafter referred to as 'Act') and arriving at the conclusion that, the signature which was marked at Ex.P2 is the signature of defendant No.1 in Exhibit D1 is contrary to scope of Section 73 of the Act. He further contends that the learned trial Judge failed to notice that admittedly in the present case, plaintiff has not filed any application for seeking comparison of signature of defendant No.1 through expert scientific investigation as required under Order XXVI Rule 10A of CPC and the defendant No.1 has categorically denied the execution of Exhibit P2 both in the written statement as well as in his evidence. In view of the same, the conclusion arrived at by the learned trial Judge relying upon Section 73 of Act is contrary to established principles of law and the law declared by the Hon'ble Supreme Court in the case of STATE OF MAHARASTRA v. SUKHDEV SINGH reported in AIR 1992 SC 2100, and in view of the same, learned counsel for the 13 appellant submits that the conclusion, which was arrived at by the trial Court solely deciding issue No.1 is without any basis and the judgment and decree passed by the trial Court is liable to be set aside by this Court.
10. It is the contention of Shri Nagabhushan, learned counsel for the appellant that the defendant No.1 has made a categorical statement in the written statement as well as in the evidence that the sale agreement dated 03rd September, 1998 is a created document by the plaintiff and in view of the same, the burden of proving the signatures on Exhibit P2 is cast upon the plaintiff. In the instant case the plaintiff has not made any application before the trial Court seeking for comparison of signatures of the defendant No.1 in Exhibit P2 with that of signatures in Exhibit D1 as alleged in the plaint, and in view of the same, the judgment and decree passed by the trial Court solely on the basis that the disputed signatures of defendant No.1 have similar characteristics of Exhibit D2, in the opinion of the learned Trial Judge as that of the admitted signature of defendant No.1, and as such, the finding recorded by the trial 14 Court is contrary to law and beyond the scope of Section 73 of the Act, and therefore, the judgment and decree passed by the trial Court is liable to be set aside. The learned counsel for the appellant further submits that the trial Court has not considered the pleadings of the parties in its right perspective and has not appreciated the evidence, particularly, with regard to Exhibits D1 and D2 and has arrived at a conclusion that defendant No.1 has entered into sale agreement with the plaintiff on 03rd September, 1998 agreeing to sell the suit schedule property for a sum of Rs.1,14,000/- requires to be accepted at the threshold, is perverse and the same is liable to be set aside by this Court. He would further submitted that alleged agreement of sale dated 03rd September, 1998 is between the plaintiff and defendant No.1. PW1 has admitted in his evidence the factual aspect that suit schedule property would be sold by defendant No.1 in favour of defendant No.2 and such being the thing, the plaintiff ought to have taken steps from preventing the defendant No.1 to execute the sale deed in favour of defendant No.2. Proceeding further, the learned counsel submits that, if at all the plaintiff had knowledge about the transaction between the defendant No.1 15 and defendant No.2, under that circumstances, the plaintiff ought to have issued a notice to defendant No.1 immediately to prevent the defendant No.1 to execute registered sale deed with defendant No.2. However, the plaintiff has filed suit on 17th December, 1998 knowing fully well that the agreement and registered sale deed made by defendant No.1 in favour of defendant No.2 who is a bona fide purchaser and this aspect of the matter was not appreciated by the trial Court while deciding the issues in favour of the plaintiff, and the same requires to be modified by this Court.
11. The learned counsel for the appellant invited the attention of the Court with regard to Exhibit D2 agreement of sale dated 18th June, 1998 executed by defendant No.1 in favour of defendant No.2 and the very basis for passing the impugned judgment and decree by the trial Court is only on the ground that the agreement of sale executed by defendant No.1 in favour of defendant No.2 on 18th June, 1998 did not reflect in the registered sale deed dated 04th December, 1998 (Exhibit D3) and the said finding cannot be accepted, as contents of Exhibit D3 is totally silent about the transaction of consideration that has taken place between defendant No.1 and the defendant No.2 16 inasmuch as the intention of defendant No.1 is to close the loan that he has availed from defendant No.2 and he further submitted that the trial Court has misguided while appreciating Exhibit P2 Agreement of sale dated 03rd September, 1998; and Exhibit D2 Agreement of sale dated 18th June, 1998. He would further submit that the trial Court erred in holding that Exhibit P2 agreement of sale dated 03rd September, 1998 between the plaintiff and defendant No.1 is executed prior to the agreement of sale Exhibit D2 dated 18th June, 1998 and, in fact, he further contended that the plaintiff had the knowledge of agreement of sale between defendant No.1 and defendant No.2 and he has deliberately approached the court at a belated stage without issuing notice to the defendant No.1 and this aspect of the matter was not appreciated by the trial Court which has been used as a tool by the Trial Court to decree the suit of plaintiff, while arriving at a conclusion and therefore, the finding recorded by the trial Court with regard to the same is without any basis. The learned counsel for the appellant invited the attention of the Court with regard to discussion made at paragraph 19 of the judgment. Finally, he would submit that, in the instant case the plaintiff has not entered the witness box initially and the power-of-attorney holder of the plaintiff-PW1 who was aware of factual aspect has attempted to speak and the same ought not to be eschewed by the Court since Order III Rule 2 of the Code of Civil 17 Procedure would not give absolute power or authority to an act as an agent on behalf of a member to speak about factual aspects which was not within his knowledge. On these grounds, he prays for allowing the appeal and sought for setting aside the impugned judgment and decree passed by the Court below.
12. Placing reliance on the judgment in the case of B. VIJAYA BHARATHI v. P. SAVITRI AND OTHERS reported in AIR 2017 SC 3934, the learned counsel for the appellant pointed out to my attention paragraph 17 of the said judgment. The same reads as hereunder:
"It must also be noted that though aware of two conveyances of the same property, the plaintiff did not ask for their cancellation. This again, would stand in the way of a decree of specific performance for unless the said made by defendant No.1 to defendant No.2, and thereafter by defendant No.2 to defendant No.3 are set aside, no decree for specific performance could possible follow. While Mr. Rao may be right in stating that mere delay without more would not disentitle his client to the relief of specific performance, for the reasons stated above, we find that this is not such a case. The High Court was clearly right in finding that the bar of Section 16(c) was squarely attracted on the facts of the present case and that therefore, the fact that defendant No.22 and 3 may not be bona fide purchasers would not come in 18 the way of stating that such suit must be dismissed at the threshold because of lack of readiness and willingness, which is a basic condition for the grant of specific performance."
13. He submits that in the instant case, on perusal of the plaint it would indicate that the plaintiff has sought for relief of specific performance of the agreement of sale Exhibit P2 dated 03rd September, 1998. However, the plaintiff has not sought for cancellation of Registered Sale Deed Exhibit D3 dated 04th December, 1998 between defendant No.1 and defendant No.2.
14. He has also made submissions with regard to the delay in filing the suit as the plaintiff having had the knowledge of execution of agreement of sale dated 18th June, 1998 and sale deed dated 04th December, 1998 and further stated that the plaintiff ought to have instituted the suit immediately after the breach of contract as alleged by the plaintiff, and in the present case, there is a delay in filing the suit by the plaintiff and accordingly, the learned counsel has sought for interference of this Court with the impugned judgment and decree.
15. On the other hand, Shri G. Papi Reddy, the learned counsel appearing for the respondent No.1-plaintiff supports the impugned judgment and decree passed by the trial Court and 19 submitted that defendant No.1 had entered into an agreement of sale on 03rd September, 1998 agreeing to sell the suit schedule property to the plaintiff for a sum of Rs.1,14,000/- and accordingly defendant No.1 has received advance sale consideration amount of Rs.90,000/- from the plaintiff and agreed to receive the balance amount of Rs.24,000/- at the time of execution of registered sale deed. The main contention of the learned counsel for the respondent No.1 is that though the time for execution of the registration of sale deed was fixed as six months, however, the defendant No.1, in order to deprive the right of the plaintiff, has illegally executed the sale deed in favour of the defendant No.2, which clearly establish the conduct of the defendant No.1. He would further submit that the plaintiff, having examined the PWs.1 to 5, has proved the execution of the agreement of sale dated 03rd September, 1998 and same has been accepted by the trial Court on appreciation of the facts and in that view of the matter, the learned counsel submits that the judgment and decree passed by the trial Court is just and proper and do not call for any interference by this Court. He would also submit that the perusal of the sale deed 20 dated 04th December, 1998 executed by the defendant No.1 in favour of the defendant No.2, wherein the agreement of sale dated 18th June, 1998, as stated by the defendants before the trial Court, has not reflected in the registered sale deed, and therefore, the finding recorded by the trial Court with regard to issue No.1 is just and proper. He further submits that the plaintiff has paid more than 3/4th of the sale amount and was always ready and willing to perform his part of the contract, and therefore, the trial Court, on appreciation of the facts, has answered the issue No.2 in his favour, which is valid and binding on the defendant No.1.
16. Learned counsel for the respondent No.1 further submits that the defendant No.2 was aware of the agreement of sale dated 03rd September, 1998 entered into between the plaintiff and defendant No.1. He would further submit that some of the persons in Vanarasi village are inimical to defendant No.1 and further, that the defendant No.2 and the plaintiff are not in good terms and thereby in order to deprive the right of the plaintiff to complete the sale transactions, the defendant No.2, despite being aware of agreement of sale dated 03rd September, 1998, has executed the registered sale deed dated 04th 21 December, 1998 and in this regard learned counsel would submit that, the finding recorded by the Trial Court is in accordance with law. Therefore, the learned counsel for the respondent No.1 in a categorical statement submits that the learned trial Judge having taken note of the entire material and the deposition on record has decreed the suit which requires to be confirmed by this Court.
17. The learned counsel for the respondent No.1, places reliance on the judgment of Hon'ble Supreme Court in the case of DURGA PRASAD AND ANOTHER v. DEEP CHAND AND OTHERS AIR 1954 SC 75 and submits that the defendant No.2 is not a bona fide purchaser. He also relies on the judgment of the Hon'ble Supreme Court in the case of MURALILAL v. STATE OF MADHYA PRADESH AIR 1980 SC 531 with regard to Section 73 of the Act and submits that there is no set of rule for referring a particular document for an expert opinion and since the Trial Court having come to the conclusion that the signatures of defendant No.1 is required to be determined by looking into Exhibit P2 and Exhibit D2, and resorting to such an effort by the Trial Court could be allowed to arrive at just conclusion, and accordingly, he submits that the finding recorded by the Trial Court with regard to the same is just and proper. Lastly, the learned counsel for the plaintiff submitted that the plaintiff has paid the major portion 22 of the amount as per the agreement of sale Exhibit P2 and in view of the same, the averment of readiness and willingness in the plaint is not mathematical which should only be in the specific words and the plaintiff was always ready and willing to complete the transaction, and as such, the perusal of the plaint would clearly indicate that the delay occurred on account of filing the suit cannot be construed as immediately after he came to know about the execution of sale deed by defendant No.1 in favour of defendant No.2, and in view of the same, the learned counsel for the plaintiff sought to justify the finding recorded by the Trial Court.
18. Learned counsel for the respondent No.2 reiterates the pleading in the written statement filed by defendant No.1 and supports the contention of the defendant No.2.
19. Having heard the learned counsel appearing for the parties and on examination of the impugned judgment passed by the Trial Court along with the material on record and the submissions advanced by the learned counsel for the parties, the points for my consideration in this appeal are:
(1) Whether the plaintiff is entitled for specific performance of the agreement dated 03rd September, 1998?23
(2) Whether the judgment and decree passed by the trial court allowing the claim of the plaintiff for specific performance of agreement of sale is to be sustained or set aside or modified?
(3) Whether the defendant No.2 can be said to be a bona fide purchaser for value without notice entitled to protection under the Specific Relief Act, 1963?
(4) What order?
20. The points No.1 and 2 formulated hereinabove, at stages, are likely to get overlapped while being examined with reference to pleadings and evidence, and as such, both are being taken up together for adjudication.
21. I have carefully and cautiously gone through the findings recorded by the Trial Court with regard to issue No.1 whereunder the Trial Court having discussed the fact, held in favour of the plaintiff that the plaintiff PW1, PW2 and PW4 having categorically stated before the Court that Exhibit P2 contains the signature of defendant No.1 and solely based on their evidence, had come to the conclusion that defendant No.1 has put his signature on Exhibit P2. It is pertinent to mention here that the defendants have disputed the signature of defendant No.1. If such being the case, there was no impediment for 24 the plaintiff to make an application seeking to refer the matter for opinion of handwriting expert on the admitted and disputed signature of defendant No.1. The Trial Court, on its own, having compared the signatures of defendant No.1 and having held that the disputed signature of defendant No.1 with that of the admitted signature of defendant No.1 are having similar characteristic features and the trial court should not have jumped into such a conclusion in the absence of pleadings and evidence on record made available by the parties. If at all, in the opinion of the trial Court, that the signatures are required to be identified in the manner known to law, the trial Court itself should have referred the disputed signatures for an expert opinion and hence the finding recorded by the Trial Court with regard to issued No.1 is without any merit.
22. Further, with regard to interpretation on Section 73 of the Act, it is pertinent to refer to the judgment of the Hon'ble Supreme Court in the case of AJIT SAVANT MAJAGAVI v. STATE OF KARNATAKA reported in AIR 1997 SC 3255. At paragraph 37 and 38 of the said judgment, the Hon'ble Supreme Court has observed thus:
"37. This Section consists of two parts. While the first part provides for comparison of signature, finger impression, writing etc. allegedly written or made by a 25 person with signature or writing etc. admitted or proved to the satisfaction of the Court to have been written by the same person, the second part empowers the court to direct any person including an accused, present in the Court, to give his specimen writing or finger prints for the purpose of enabling the Court to compare it with the writing or signature allegedly made by that person. The Section does not specify by whom the comparison shall be made. However, looking to the other provisions of the Act, it is clear that such comparison may either be made by a handwriting expert under Section 45 or by anyone familiar with the handwriting of the person concerned as provided by Section 47 or by the court itself.
38. As a matter of extreme caution and judicial sobriety, the court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of slightest doubt, lave the matter to the wisdom of experts. But this does not mean that the court has not the power to compare the disputed signature with the admitted signature as this power clearly available under Section 73 of the Act."
23. Though the plaintiff has not made any efforts to file necessary application for seeking comparison of signature of defendant No.1 on the documents at Exhibits P2 and Exhibit D1 referred to above, however, the Trial Court on its own, considered it necessary to 26 compare the signatures and ultimately came to the conclusion that the signature of defendant No.1 on documents at Exhibits P2 and Exhibit D1 are one and the same and the said finding of comparison was not warranted in the case on hand. In this regard, it is pertinent to refer to law declared by the Hon'ble Supreme Court in the case of STATE OF MAHARASHTRA THROUGH CBI v. SUKHDEV SINGH SUKHA @ SUKHA AND OTHERS reported in AIR 1992 SC 2100 whereunder it is held that comparing the disputed material with the specimen or admitted material on record would safely be concluded with the assistance of expert opinion that the disputed writings are not the handwriting of such person, whose signature is required to be tested. In the instant case, neither the plaintiff nor the defendants have resorted to make any application under Section 73 of the Act for examination of the signature to be done by an expert. The onus or burden lies on the plaintiff to prove the said fact and he fails to prove the same by making any effort as required under law. It is also pertinent to mention that, in that view of the conclusion arrived at by the Trial Court accepting the signature of defendant No.1 having identical feature, the opportunity to the defendants for cross-examination on this aspect of the matter was curtailed and thereby, the defendants loses an opportunity to defend their case, was denied and same was ignored by the trial court and as such, there is violation of principles of 27 natural justice and therefore, finding recorded by the trial court, particularly at paragraph 15 of the impugned judgment is perverse and contrary to law and facts.
24. Nextly, while affirming the issue No.2 in favour of the plaintiff, the Trial Court had come to conclusion that the plaintiff was ready and willing to perform his obligation. Having perused the entire case materials on record, admittedly, the evidence of PW1 is carefully scrutinized. PW1 being the power-of-attorney holder of the plaintiff and also the person who was very much present at the time of execution of the sale agreement dated 03rd September, 1998 as also PW1 is none other than the brother of the plaintiff, it is very strange that PW1 did not sign the agreement. However, while evaluating the evidence on issue No.2, the Trial Court, at paragraph 19, had come to a conclusion as follows:
"It is true that there are no documents to show that the plaintiff had approached the defendant No.1 at Vanarasi village as well as at Chintamani where the defendant No.1 is residing now. But that cannot be a ground to suspect the oral evidence given by the plaintiff, to the effect that he had approached the 1st defendant at Vanarasi village as well as Chintamani demanding the 1st defendant to execute the registered sale deed."28
25. Though the trial court had come to conclusion that the plaintiff has pleaded and proved the readiness and willingness on the part of his obligation, however, failed to consider the fact that the sale agreement was entered into by the plaintiff with defendant No.1 on 03rd September, 1998 and the time for execution of sale agreement was fixed as within six months from the date of agreement of sale. The plaintiff has also admitted that, he had visited the Sub-Registrar Office on the date of the execution of sale deed by the defendant No.1 in favour of defendant No.2, but for the reasons best known to him, did not proceed to issue legal notice to defendant No.1 immediately on the next date of execution of sale deed seeking explanation for redressal of his grievance. In addition to this, the plaintiff also has not placed any material before the trial Court to substantiate with regard to proving his readiness and willingness subsequent to the execution of Exhibit P2. Except the stray words like, he met the defendant No.1 on several occasions and requested him to execute the sale deed, none of the witnesses of the plaintiff fortify the said statement. Apart from that, the plaintiff has not examined any independent witness to prove the fact that he has met the defendant No.1 consequent to execution of Exhibit P2 and there is no evidence in respect of the same by plaintiff, so also the trial Court has also omitted the said fact, resulting in miscarriage of justice to defendants. This would clearly 29 establish the fact that the defendant No.1 has not agreed to sell the suit schedule property in favour of the plaintiff as averred by the plaintiff. In fact none of the witnesses examined by the plaintiff, have deposed before the Court with regard to the efforts made by the plaintiff to pressurise defendant No.1 to execute registered sale deed. It is pertinent to mention here that the defendants have examined DW5, who is none other than the wife of defendant No.1 and she has categorically denies the sale transaction between the defendant No.1 and the plaintiff; and the plaintiff has failed to elicit during the cross- examination of DW5 to prove the same. She has also stated that defendant No.1 has borrowed money from defendant No.2 to meet the expenses to be incurred for taking care of the father of the defendant No.1. The deposition made to that effect by DW5 is extracted herebelow:
"£À£Àß ªÀiÁªÀ£ÀªÀjUÉ DgÉÆÃUÀå ¸Àj¬Ä®èzÀ ¸ÀAzsÀ¨sÀðzÀ°è £À£Àß UÀAqÀ 2£Éà ¥ÀæwªÁ¢¬ÄAzÀ ºÀtªÀ£ÀÄß ¥ÀqÉzÀÄPÉƼÀÄîwÛzÀÝgÀÄ?
£À£Àß UÀAqÀ 2£Éà ¥ÀæwªÁ¢UÉ AiÀiÁªÀÅzÉà PÀgÁgÀ£ÀÄß §gÉzÀÄPÉÆnÖ®è J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è."
26. In this regard, having re-appreciated the evidence on record the finding recorded by the Trial Court on issues No.1 and 2 is contrary to the material evidence on record, and therefore, the same is liable to be set aside by this Court. The Hon'ble Supreme Court in 30 the case of J.P. BUILDERS v. A. RAMADAS RAO reported in (2011)1 SCC 429, in the course of judgment at paragraph 25 has observed as follows:
"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."
(emphasis supplied)
27. It is also settled principle of law by the Hon'ble Supreme Court in the case of C.S. VENKATESH v. A.S.C. MURTHY reported in AIR 2020 SC 930 wherein the Hon'ble Supreme Court at paragraph 15 of the judgment held as under:
"15. The words "ready and willing imply that the plaintiff was prepared to carry out those parts of 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 31 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 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 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 always ready to perform his contract."
28. In view of the same, having considered the entire material on record, I conclude that the plaintiff fails to prove that, he was 'continuous' in readiness and willingness to perform the terms and conditions of the agreement Exhibit P2 as averred in the plaint. Continuous readiness and willingness is a condition precedent to grant of relief of specific performance. The circumstance is material and relevant and is required to be considered by the Court below while granting or refusing to grant the relief.
29. In respect of issues No.3 and 4 are concerned, the Trial Court has come to conclusion that the defendant No.2 is not a bona fide purchaser. The plaintiff has admitted in his cross-examination stated that he was not in good terms with defendant No.2 and further has he examined PW3 and PW4 to establish the fact that the 32 defendant No.2 was aware of agreement of sale dated 03rd September, 1998. However, the said finding cannot be considered to be a deciding factor in the peculiar circumstance of this suit, since it is an established principle of law that a subsequent purchaser in order to resist a suit for specific performance of a prior contract of sale, must establish that:
(i) he is a bona fide purchaser for value;
(ii) he has no notice of the prior contract;
(iii) whether he had notice of the prior contract of sale, before he paid the consideration money to the owner.
30. On considering the written statement filed by the defendant No.2, wherein the defendant No.2 had taken a defence of bona fide purchaser for consideration, and as such the finding recorded by the Trial Court is ipso facto contrary to the records. The Trial Court, while answering the said issues, at paragraph 23 of the judgment, has observed as follows:
"DW2 has further deposed that he was not aware about the transaction that said to have taken place between the plaintiff and defendant No.1 and as such, he is the bonafide purchaser for value of the suit schedule property. Per contra, the plaintiff has given evidence 33 stating that soon after he came to know about the illegal transaction of the sale interse between the defendants, he visited the Sub-registrar office at Srinivasapur and brought to the notice of the 2nd defendant about Ex.P2 agreement of sale and requested the 1st defendant not to execute the sale deed in favour of the 2nd defendant in respect of the suit schedule property. He further stated that in spite of such request, the defendant No.1 executed the sale deed in favour of the 2nd defendant and as such, the sale transaction interse between the defendants is binding on him and the said sale transaction is illegal transaction."
31. PW1 has accepted during his cross-examination at page 6 that DW2 is in possession of the land in question. He deposed that:-
"F ªÀiÁvÀÄ PÀvÉ ªÁ£ÀgÁ¹AiÀÄ°è 1£Éà ¥ÀæwªÁ¢AiÀÄ ªÀÄ£ÉAiÀÄ°è D¬ÄvÀÄ. D ¸ÀªÀÄAiÀÄzÀ°è £Á£ÀÄ £ÀªÀÄä CtÚ ªÁ¢ PÀȵÀÚ¥Àà ªÉAPÀmÉñÀUËqÀ ªÀÄĤªÉAPÀl¥Àà UÉÆÃ¥Á®¥Àà EzÉݪÀÅ. F ªÀiÁvÀÄPÀvÉ ¨É½UÉÎ 10-11 UÀAmÉUÉ D¬ÄvÀÄ. F CVæªÉÄAmï §gÉAiÀÄĪÀÅzÀQÌAvÀ 2-3 ¢£À ªÀÄÄAZÉ ªÀiÁvÀÄPÀvÉ D¬ÄvÀÄ. CzÀÄ ªÀÄAUÀ¼ÀªÁgÀ CxÀªÁ §ÄzsÀªÁgÀ EgÀ¨ÉÃPÀÄ. F ªÀiÁvÀÄPÀvÉ ¸ÀªÀÄAiÀÄzÀ°è 1£Éà ¥ÀæwªÁ¢ M§âgÉà EzÀÄÝzÀÄ DzÀgÉ ¨ÉÃgÉ AiÀiÁgÀÄ EgÀ°¯Áè. £Á£ÀÄ ¥ÀÄ£À: ºÉüÀĪÀÅzÉãÉAzÀgÉ CªÀgÀ ºÉAqÀwAiÀÄÄ EzÀÝgÀÄ. F ªÀiÁvÀÄPÀvÉ ¸ÀªÀÄAiÀÄzÀ°è CªÀgÀ ºÉAqÀw C¯Éèà EzÀÝgÄÀ . F «ZÁgÀ CªÀjUÉ UÉÆwÛzÉ."
However, nothing has been elicited from the mouth of DW5-wife of the defendant No.2 with regard to the same.
34
32. DW3 to DW5 have deposed before the Court that after the execution of agreement of sale (Exhibit D2) by defendant No.1 in favour of defendant No.2, in terms of the agreement, the defendant No.2 was put into possession by defendant No.1. DW5 herself stated in the evidence that suit schedule property is in possession of the defendant No.2 pursuant to the sale agreement (Exhibit D2). The defendant No.2 has sunk borewell and obtained electric connection in the suit schedule property, and in view of the said fact that the defendant No.2 was put into possession of the suit property, the plaintiff fails to prove that defendant No.2 is not a bona fide purchaser as stated above. Even otherwise, it is proved by the defendant No.2 before the Court below through the evidence that when the defendant No.2 has developed the land, sunk borewell and cultivating the land in question. In this context, the law laid down by the Hon'ble Supreme Court in the case of DAMACHERLA ANJANEYULU AND ANOTHER v. DAMACHERLA VENKATA SESHAIAH AND ANOTHER reported in AIR 1987 SC 1641, would come to aid of defendant No.2, whereunder the Hon'ble Supreme Court has held that result of special hardship or more hardship would be considered while grant of specific performance to do complete justice between the parties as per Section 20(2) of the Specific Relief Act, 1963.
35
33. It is also relevant to place reliance on the law declared by the Hon'ble Supreme Court in the case of GOBIND RAM V. GIAN CHAND reported in AIR 2000 SC 3106 wherein at paragraph 7 of the judgment the Hon'ble Supreme Court has held as follows:
"7. It is the settled position of law that grant of a decree for specific performance of contract is not automatic and is one of the discretion of the Court and the Court has to consider whether it will be fair, just and equitable. Court is guided by principle of justice, equity and good conscience."
34. Having considered the fact that defendant No.2 is in possession of the suit schedule property pursuant to execution of Exhibit D2 and in view of the same, it may be true that there is no principle of law that once there is part performance of the agreement, there has to be decree of specific performance of such an agreement. The Court may refuse to pass a decree of specific performance of agreement, when there is an element of part performance is present. Admittedly, DW1 and DW5 have categorically stated that they have borrowed money from defendant No.2 to take care of medical expenses to be incurred during the lifetime of the father of defendant No.1 and after the death of defendant No.2, the defendant No.1 has, admittedly, borrowed certain amount from defendant No.2 for the 36 purpose of obsequies and this fact would fortify the loan transaction between the defendants No.1 and 2. Apart from this, as rightly argued by the learned counsel for the appellant, the trial court fails to appreciate the contents of the agreement of sale (Exhibit D2) in the light of observation made by this Court in Writ Petition No.51607 of 2003 disposed of on 12th July, 2005.
35. Perusal of revenue records like mutation register and pahani records Exhibit D4 and Exhibits D5 to D8 indicates that pursuant to execution of registered sale deed 04th December, 1998 (Exhibit D3), the defendant No.2 has mutated his name in the revenue records and the perusal of the RTC extract as produced at Exhibits D5 to D8 and pahani extracts, would establish the fact that defendant No.2 is in possession of the land and cultivating the suit schedule property. Though the plaintiff has cross-examined the defendants No.3 to 6 at length with regard to demolish the case of defendant No.1 to say about the parting of the possession of the land in question in favour of defendant No.2, however the plaintiffs have failed to elicit the non-delivery of the possession of the land in question vis-à-vis to prove that the defendant No.2 is not a bona fide purchaser of the land in question. Admittedly, the defendant No.1 was residing in Vanarasi village at the time of execution of sale agreement. However, later he 37 has shifted to Chintamani town. I have also carefully gone through the evidence of PW1, who is the brother of the plaintiff as well as the power-of-attorney holder of the plaintiff. PW1 has deposed as follows:
"1£Éà ¥ÀæwªÁ¢ 2£Éà ¥ÀæwªÁ¢UÉ PÀæAiÀÄ ¥ÀvÀæ ªÀiÁrPÉÆqÀÄvÁÛ£É JAzÀÄ UÉÆvÁÛzÁUÀ E°è §AzÀÄ ¥ÉưøÀjUÉ ¦gÁå¢ PÉÆqÀ°¯Áè. 1£Éà ¥ÀæwªÁ¢UÉ £Á£ÁUÀ°Ã CxÀªÁ £ÀªÀÄä CtÚ£ÀªÀgÁUÀ°Ã CVæªÉÄAmï PÀæAiÀÄ ¥ÀvÀæ §gÉzÀÄ PÉÆqÀĪÀ §UÉÎ £ÉÆÃnøï PÉÆqÀ°¯Áè. 1£Éà ¥ÀæwªÁ¢ 2£Éà ¥ÀæwªÁ¢AiÀÄ ¥ÀgÀªÁV £ÀªÄÀ ä ªÀÄÄAzÉ §gÉzÀÄ PÉÆlÖgÀÄ CzÀPÁÌV £ÁªÀÅ £ÉÆÃn¸ï PÉÆqÀ°¯Áè. F «ZÁgÀªÁV AiÀiÁªÀÅzÉà ¥ÀAZÁ¬ÄÛ ªÀiÁqÀ°¯Áè. 1£Éà ¥ÀæwªÁ¢ zÁªÁ¸ÀévÀÛ£ÀÄß ªÀiÁgÁl ªÀiÁqÀ®Ä CVæªÉÄAmï ªÀiÁr PÉÆlÖ «ZÁgÀ £ÀªÀÄä Hj£ÀªÀjUÉ UÉÆwÛgÀ§ºÀÄzÀÄ."
36. In addition to above statement of PW1 and a careful consideration of the evidence of PWs 2 to 4 would indicate that the PW4-H.M. Shankrappa, scribe of the alleged Exhibit P2, is the mastermind in preparing Exhibit P1 to aid plaintiff. PW4 clearly admits that the PW1 and plaintiff are his cousin brothers. He also admits the fact that PW2 is his relative. More interestingly, PW4 categorically admits in the cross-examination that he is not in good terms with defendant No.2 and they were not in talking terms. He also admits during the cross-examination that while reducing Exhibit P2 into writing, part of the document was written by him at Taluk Office Srinivasapura and thereafter remaining part of Exhibit P1 was written 38 near Taluk Office, Kolar. In the cross-examination, he admits of as follows:
"It is true I have not mentioned the place and date of this document Ex.P2. It is not true on 03.09.98 I have write this document Exhibit P2 near Taluk Office, Kolar."
37. In that view of the matter, the perusal of entire evidence on record would indicate that the plaintiff has not approached the Court with clean hands and this aspect of the matter was lost sight of the Trial Court. It is also relevant to say that, the finding recorded by the Trial Court is contrary to the records, as the plaintiff has not examined any independent witness to say that the defendant No.2 had the knowledge of the execution of sale agreement by the plaintiff with defendant No.1.
38. Order 3, Rules 1 and 2 CPC empower the holder of power- of-attorney to "act" on behalf of the principal. The word "acts" employed in Order 3, Rules 1 and 2 CPC confines only to in respect of "acts" done by the power-of-attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power-of-attorney holder has rendered some "acts" in pursuance of power of attorney, he may depose for the principal in respect of such 39 acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross- examined.
39. The word "acts" used in Order III Rule 2 of the Code of Civil Procedure does not include in the act of power-of-attorney holder to appear as a witness on behalf of a party. Power-of-attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but he cannot appear as a witness on behalf of the party in the capacity of that party.
40. The Hon'ble Supreme Court in the case of S. KESARI HANUMAN GOUD v. ANJUM JEHAN AND OTHERS reported in 2013 AIR SCW 3561 has opined thus:
"23. It is a settled legal proposition that the power- of-attorney holder cannot depose in place of the principal. The provisions of Order 3, Rules 1 and 2 CPC empower the holder of the power-of-attorney to "act" on behalf of the principal. The word "acts" employed therein is confined only to "acts" done by the power-of-attorney holder, in exercise of the power granted to him by virtue 40 of the instrument. The term "acts", would not include deposing in place and instead of the principal. In other words, if the power-of-attorney holder has preferred any "acts" in pursuance of the power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for acts done by the principal, and not by him. Similarly, he cannot depose for the principal in respect of a matter as regards which, only the principal can have personal knowledge and in respect of which, the principal is entitled (sic liable) to be cross- examined. (See Vidhyadhar v Manikrao [(1999)3 SCC 573]; Janki Vashdeo Bhojwani V. IndusInd Bank Ltsd. [(2005)2 SCC 217]; Shankar Finance and Investments V. State of AP [(2008)8 SCC 536]; Man Kaur V. Hartar Singh Sangha [(2010)10 SCC 512]."
41. A plain glance of the above observation made by the Hon'ble Supreme Court would lead to an inevitable conclusion that a power-of-attorney holder has a limited right to depose. He cannot be permitted to depose on behalf of the principal for the acts done by the principal. As a necessary corollary, he cannot be cross-examined on those aspects in respect of the principal. Thus, right to adduce evidence by the power of attorney holder is available to a limited extent. By no stretch of imagination, he can be treated to be representative of principal in all aspects. In other words, this is trite 41 that no estoppel operates against the law. In view of Order III Rules 1 and 2 of the Code of Civil Procedure and the law laid down by the Hon'ble Supreme Court in the case of S. KESARI HANUMAN GOUD (supra), I am unable to hold that the brother of the plaintiff/power-of- attorney holder-PW1 had entered into the shoes of plaintiff and his statement can be treated to be statement of his brother. To this extent also, the order of Court below becomes vulnerable.
42. Section 20 of the Specific Relief Act reads thus:
"20. Discretion as to decreeing specific performance.--
(1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.
(2) The following are cases in which the court may properly exercise discretion not to decree specific performance:--
(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, 42 gives the plaintiff an unfair advantage over the defendant; or
(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-
performance would involve no such hardship on the plaintiff; or
(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.
Explanation 1.--Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b).
Explanation 2.-- The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract.
(3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has 43 done substantial acts or suffered losses in consequence of a contract capable of specific performance.
(4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party."
43. It is also well settled proposition of law that the Court is not bound to grant the relief of specific performance merely because it is lawful to do so. Section 20(1) of the Specific Relief Act, 1963 provides that the jurisdiction to decree specific performance is discretionary. Yet, the discretion of the court is not arbitrary but is formed on solid foundation of "sound and reasonable", to be "guided by judicial principles."
44. Explanation-1 of sub-section (2)(c) of Section 21 of the Specific Relief Act, stipulates that the mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, will not constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). Moreover, Explanation-2 requires that the issue as to whether the performance of a contract involves hardship on 44 the defendant No.2 in the circumstances of this case has to be determined with reference to the circumstances existing at the time of contract, except where the hardship has been caused from an act of the plaintiff subsequent to the contract as observed by the Hon'ble Supreme Court in the case of JAYAKANTHAM AND OTHERS V. ABAYKUMAR reported in (2017)5 SCC 178. In that view of the matter, the judgments relied upon by the learned counsel for the respondent No.1 in the case of DURGA PRASAD AND ANOTHER (SUPRA) and in the case of MURARILAL (supra) are not applicable to the facts and circumstances of the case on hand and would not support the case of the plaintiff.
45. It is well-settled that even though the Court is not bound to grant a relief of specific performance merely because it is lawful to do so, because the Court has to meticulously consider all the facts and circumstances of the case to see that no unfair advantage is obtained by either of the parties. Even though, the relief of specific performance is discretionary, but at the same time, it is not arbitrary. Discretion has to be exercised in accordance with the sound and reasonable judicial principles. While balancing the equities, one of the considerations to be kept in view, is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue 45 advantage over the other, as also the hardship that may be caused to either of the parties while enforcing or refusing the specific performance. There may be one or other circumstances on which the parties may not have any control. Thus, totality of the circumstances are required to be seen while granting or refusing the decree of specific performance.
46. Perusal of the relief as claimed by the plaintiff would strike the imbalance in not challenging or cancellation of the registered sale deed dated 04th December, 1998 by the defendant No.1 in favour of the defendant No.2. Plaintiff, though aware of the execution of sale deed (Exhibit D3), did not pray for cancellation of the said registered sale deed and therefore, cannot be said to be ready and willing to perform his part of contract and in view of the same, impugned judgment and decree is contrary to law declared by Hon'ble Supreme Court in B. VIJAYA BHARATHI (supra).
47. To conclude, having re-appreciated the evidence on record and on considering the relevant law to the facts on hand, the points for consideration referred to above by me are answered in favour of the defendants and held that the plaintiff is not entitled for specific performance of the agreement dated 03rd September, 1998 and consequently, declare that the defendant No.2 is a bona fide purchaser 46 for value without notice and entitled for protection under Specific Relief Act. The specific performance being an equitable relief, balance of equities have also to be struck taking into account all the relevant aspects of the matter, including the lapses which occurred and parties respectively responsible therefor.
48. In the light of the discussion made above, the impugned order passed by the Trial Court is not sustainable in law, as such, suit filed by the plaintiff in OS No.171 of 1998 is liable to be dismissed. Hence, the following:
ORDER
1. Appeal is allowed.
2. The Judgment and Decree dated 7th March, 2006 passed in OS No.171 of 1998 by Additional Civil Judge (Sr. Dn.), Kolar is set aside.
Sd/-
JUDGE lnn