IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:24.02.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.184 of 2009 and M.P.No.1 of 2009 1.Raji 2.Venkatachalam ... Appellants vs. Shanmugam ... Respondent This second appeal is filed against the judgement and decree dated 14.10.2008 passed by the Principal District Judge, Dharmapuri, in A.S.No.9 of 2008 confirming the judgement and decree dated 27.3.2007 passed by the Subordinate Judge, Dharmapuri, in O.S.No.162 of 2003. For Appellants : Mr.R.Subramanian For Respondent : Mr.S.B.Fazluddin JUDGMENT
This second appeal is filed by the defendants, inveighing the judgement and decree dated 14.10.2008 passed by the Principal District Judge, Dharmapuri, in A.S.No.9 of 2008 confirming the judgment and decree dated 27.3.2007 passed by the Subordinate Judge, Dharmapuri, in O.S.No.162 of 2003, which was filed for specific performance of an agreement to sell.
2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court.
3.Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this second appeal would run thus:
(a) The respondent herein, as plaintiff, filed the suit for specific performance of an agreement to sell.
(b) The defendants resisted the suit by filing written statement.
(c) Whereupon the trial Court framed the issues. The plaintiff on his side examined himself as P.W.1 along with P.Ws.2 to 5 and marked Ex.A1 to A9. On the defendants’ side, one Venkatachalam was examined as D.W.1 along with D.W.2 and no document was marked.
(d) Ultimately, the trial Court decreed the suit for specific performance, as against which, the appeal was filed for nothing but to be dismissed by the first appellate Court, confirming the judgement and decree of the trial Court.
4. Being aggrieved by and dissatisfied with the judgements and decrees of the Courts below, this second appeal has been focussed by the defendants on various grounds inter alia thus:
(i) The Courts below miserably failed to take into consideration that there was no positive evidence on the side of the plaintiff that he was ready and willing to perform his part of the contract ever since the agreement to sell was entered into between the plaintiff on the one side and the defendants on the other side.
(ii) The Courts below failed to take into consideration the falsity involved in the plea of the plaintiff relating to possession.
(iii) Absolutely there was no explanation for the delay on the part of the plaintiff in approaching the Court seeking specific performance.
5. As such, the following substantial questions of law are found suggested in the second appeal:
“1. Whether the lower appellate Court was right in granting a decree for specific performance in the absence of allegation relating to readiness and willingness of the plaintiff to perform his part of the contract as required under Sec.16(2) of the Specific Relief Act?
2. Whether the lower appellate Court was right in coming to the conclusion that the delay in payment of the Court fee, though condoned will not disentitle the plaintiff from seeking the relief of specific performance?
3. Whether the lower appellate Court was right in holding that time is not basis of the contract?”
6. Heard both sides.
7. I am of the considered view that the following substantial questions of law could be framed for consideration:
(i) Whether the Courts below failed to take into consideration the fact of the alleged absence of positive evidence on the plaintiff’s side to prove his readiness and willingness to perform his part of the contract?
(ii) Whether the judgements and decrees of the Courts below are liable to be set aside on the ground that they have not discussed thread bare the oral evidence of the witnesses.
(iii) Whether the suit for specific performance should have been dismissed on the ground of false plea on the part of the plaintiff relating to possession?
(iv) Whether there is any perversity or illegality in the judgements and decrees of the Courts below?
8. Both sides, after taking note of the aforesaid substantial question of law, advanced their arguments.
9. The gist and kernal of the arguments as put forth and set forth on the side of the appellants/defendants would run thus:
(a) The trial Court has not even framed any issue relating to readiness and willingness on the part of the plaintiff to perform his part of the contract.
(b) The falsity involved in the plea of possession in the plaint was not at all considered by both the Courts below.
(c) The ingredients of Section 16 read with Section 20 of the Specific Relief Act was not considered by the Courts below.
(d) Even if there is any bit of falsity in the plea of the plaintiff in seeking specific performance, the Courts are enjoined to dismiss the prayer for specific performance, which is an equitable and discretionary relief and a person seeking such relief based on falsity should be non-suited.
Accordingly, the learned counsel, inviting the attention of this Court to various portions of the evidence and also citing precedents prayed for the dismissal of the original suit, after setting aside the jugements and decrees of the Courts below.
10. Piloting the arguments on the side of the respondent/plaintiff and in a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the appellants/defendants, the learned counsel for the respondent/plaintiff would submit thus:
(a) The plaintiff approached the Court with clean hands without having any falsity in his plea.
(b) In Ex.A3-the reply notice dated 11.11.2002, absolutely there was no denial on the part of the defendants relating to the fact of possession having been given by them in favour of the plaintiff and in such a case, even by phantasmegorical thoughts it could not be projected as though the plaintiff approached the Court with false plea of possession.
(c) The defendants’ plea is fraught with inconsistencies and falsities and they are having no right to raise their accusative finger as against the plaintiff.
(d) The evidence of D.W.2 himself would display and evince that the plaintiff had financial wherewithal and in fact, there is admission by D.W.1 that after the emergence of Ex.A1-the Agreement to sell, the plaintiff constructed a house also somewhere else. In such a case, the question of financial wherewithal of the plaintiff to perform his part of the contract was beyond doubt. Both the Courts below appropriately and appositely, correctly and convincingly arrived at the conclusion that the plaintiff had the financial ability to perform his part of the contract and that he was willing to get the sale deed executed also, warranting no interference in second appeal.
(e) The plaintiff was not expected to rush to the Court soon after the refusal on the part of the defendants in coming forward to execute the sale deed adhering to Ex.A1, however, there were bickerings and pinpricks going on and ultimately, when there was no possibility for any peaceful solution, the plaintiff approached the Court, after issuing pre-suit notice and in such a case, no interference in second appeal is warranted.
11. Substantial questions of law (i) to (iv): All these substantial questions of law are taken together for discussion, as they are interwoven and interlinked, interconnected and entwined with one another.
12. At the out set itself I would like to fumigate my mind with the following decision of the Honourable Apex Court:
(i) (2011) 1 SCC 673 [Vijay Kumar Talwar v. Commissioner of Income Tax, Delhi], certain excerpts from it would run thus:
“19. It is manifest from a bare reading of the section that an appeal to the High Court from a decision of the Tribunal lies only when a substantial question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is mandatory that such question(s) must be formulated. The expression “substantial question of law” is not defined in the act. Nevertheless, it has acquired a definite connotation through various judicial pronouncements.
………….
22. In Hero Vinoth v. Seshammal, this Court has observed that : (SCC p.556, para 24)
“(iii) The general rule is that the High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to ‘decision based on no evidence’, it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.”
(ii) (2006) 5 Supreme Court Cases 545 HERO VINOTH (MINOR) VS. SESHAMMAL;
(iii) 2008(4) SCALE 300 KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER.
(iv) 2009-1-L.W.1 STATE BANK OF INDIA & OTHERS vs. S.N.GOYA.
13. The learned counsel for the appellants/defendants would highlight the correct law point that when the Court comes to the conclusion that there is perversity or illegality in the findings of the Courts below, certainly the concurrent findings can be upset by interfering in second appeal by the High Court, invoking Section 100 of C.P.C.
14. It is therefore just and necessary to analyse the factual aspects also to see as to whether there is any perversity or illegality in the judgements and decrees of the Courts below.
15. The main focus of the argument of the learned counsel for the appellants/defendants is that P.W.2, who claims to be a person, who signed as an attestor in Ex.A1 initially and also subsequently, for the additional payment of Rs.50,000/- by the plaintiff to D1, would go to the extent of deposing that as on the date of paying such additional amount, possession was not handed over by the defendants to the plaintiff and accordingly, he would try to press into service the point that there is falsity on the part of the plaintiff in pleading that possession of the suit property was handed over by the defendants to the plaintiff. He would also point out that P.W.3 would give evidence quite antithetical to the evidence given by P.W.1 relating to possession, for which, the learned counsel for the respondent/plaintiff would appropriately, in my opinion, has drawn the attention of this Court to Ex.A3-the reply notice of the defendants, which is niggard and bereft of any denial of the claim relating to possession and consequent cultivation of the suit property by the plaintiff in his notice-Ex.A2.
16. At this juncture, I recollect and call up the following maxims:
(i) ‘Principiis obsta’ Oppose a thing in its inception in order to have any success against it.
(ii) ‘Quae non negat fatetur’ He who does not deny, admits.
17. The sum total of the two maxims is that at the earliest point of time a person is expected to deny certain acts, which he is expected to deny and in the absence of it inference would be drawn by the Court that he admitted those fats.
18. Here, in Ex.A2, clearly and categorically, without mincing words, the plaintiff set out in a separate paragraph that possession of the suit property was handed over by the defendants in favour of the plaintiff consequent upon the receipt of the additional sum of Rs.50,000/- on 30.5.2001. If such a version was fraught with falsity, then certainly the defendants while giving reply as per Ex.A3, should have specifically denied it, as they denied such fact of possession in the written statement. As such, it is crystal clear that only as an after thought in the written statement the defendants improved their version and dished out a theory of falsity relating to possession pleaded by the plaintiff. Hence, I am of the considered view that the following decisions cited on the side of the defendants, namely,
(i) (2010)2 M.L.J.253 R.RAJARAM AND ANOTHER V. T.R.MAHESWARAN;
(ii) 1993-(2) L.W.84 G.CHELLIAH NADAR (DIED) AND 4 OTHERS V. PERIASAMI NADAR AND 3 OTHERS;
(iii) 1993(2) LW. 86 NALLAYA GOUNDER AND ANOTHER V. P.RAMASWAMI GOUNDER(DIED) ASND 3 OTHERS;
relating to falsity on the part of the plaintiff in approaching the Court are of no application so far this case is concerned.
19. The learned counsel for the defendants would draw the attention of this Court to the answers given by P.W.2-Govindasamy during cross-examination. Hence, it is just and necessary to extract hereunder the relevant portion of the cross-examination of P.W.2.
VERNACULAR (TAMIL) PORTION DELETED
20. No doubt, if relevant sentence in the cross-examination of P.W.2 is taken in isolation, it would connote and denote, project and expatiate as though consequent upon the payment of additional sum of Rs.50,000/- there was no handing over of possession. However, the learned counsel for the plaintiff would draw the attention of this Court to the later portion of the cross-examination and point out that P.W.2 impliedly deposed that the plaintiff was in possession of the suit property.
21. Adding fuel to the fire, in Ex.A4-the Complaint, the D2 himself would project the case as though the defendants were not in possession of the suit property after the emergence of Ex.A1-the agreement to sell and because the plaintiff did not come forward to get the sale deed executed, after paying the remaining part of the sale consideration, D2 did choose to enter into the land and ploughed it with the tractor, whereupon a criminal case emerged. As such, the cumulative effect of the evidence has to be seen.
22. I also recollect the famous version that the witnesses are the eyes and ears of justice. The Honourable Apex Court in the decision reported in (2011) 2 SUPREME COURT CASES 178 VIKAS KUMAR POORKEWAL V. STATE OF UTTARAKHAND AND OTHERS held thus:
“20. The learned counsel for the petitioner has placed reliance on a decision of this Court in Himanshu Singh Sabharwal v. State of M.P., where this Court in SCR paras 14 and 15 has observed as under:(SCC pp 610-11, para 5)
“5.. . . . . . . 41. “Witnesses”, as Bentham said: are the eyes and ears of justice. Hence, the importance and primacy of the quality of trial process. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer can constitute a fair trial. The incapacitation may be due to several factors like the witness being not in a position for reasons beyond control to speak the truth in the court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by courts on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingeniously adopted to smother and stifle truth and realities coming out to surface rendering truth and justice to become ultimate casualties. Broader public and societal interests require that the victims of the crime who are not ordinarily parties to prosecution and the interests of State represented by their prosecuting agencies do not suffer even in slow process but irreversibly and irretrievably, which if allowed would undermine and destroy public confidence in the administration of justice, which may ultimately pave way for anarchy, oppression and injustice resulting in complete breakdown and collapse of the edifice of rule of law, enshrined and jealously guarded and protected by the Constitution. There comes the need for protecting the witness. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth is presented before the Court and justice triumphs and the trial is not reduced to mockery. The State has a definite role to pay in protecting the witnesses, to start with at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. As a protector of its citizens it has to ensure that during a trial in court the witness could safely depose the truth without any fear of being haunted by those against whom he has deposed. Some legislative enactments like the Terrorist and Disruptive Activities (Prevention) Act, 1987 (in short “the TADA Act”) have taken note of the reluctance shown by witnesses to depose against dangerous criminals/terrorists. In a milder form also the reluctance and the hesitation of witnesses to depose against people with muscle power, money power or political power has become the order of the day. If ultimately truth is to be arrived at, the eyes and ears of justice have to be protected so that the interests of justice do not get incapacitated in the sense of making the proceedings before courts mere mock trials as is usually seen in movies.
42. Legislative measures to emphasise prohibition against tampering with witness, victim or informant have become the imminent and inevitable need of the day. Conducts which illegitimately affect the presentation of evidence in proceedings before the courts have to be seriously and sternly dealt with. There should not be any undue anxiety to only protect the interest of the accused. That would be unfair as noted above to the needs of the society. On the contrary, the efforts should be to ensure fair trial where the accused and the prosecution both get a fair deal. Public interest in the proper administration of justice must be given as much importance, if not more, as the interests of the individual accused. In this courts have a vital role to play.”
23. While holding so, the Court should be cautious in interpreting the evidence of the villagers. They may not be sophisticated in their expression. In fact, I would like to point out that even in Ex.A1 as well as in the evidence, the witnesses went to the extent of construing as though as on the date of emergence of Ex.A1 itself, sale was completed, even though they might not have intended so. As such, undue importance cannot be attributed to the exact phrases and sentences used by such witnesses. Wherefore, ultimately I would like to agree with the argument as put forth on the side of the plaintiff that the cumulative effect of the evidence would demonstrate and establish that consequent upon the payment of additional sum of Rs.50,000/- on 30.5.2001 the possession also was handed over by the defendants to the plaintiff and as such, I could see no falsity involved in the plea of the plaintiff and on that ground the plaintiff cannot be non-suited.
24. The learned counsel for the plaintiff would appropriately and appositely highlight the law point that de hors the inequities, inconsistencies, self-contradictory statements or even suicidal statements, the plaintiff is enjoined, as per Section 16 of the Specific Relief Act, to adduce positive evidence about his readiness and willingness to perform his part of the contract.
25. There is no quarrel over such a proposition as put forth by the learned counsel for the plaintiff. The following are the decisions in support of such a proposition:
(i) (2006)2 SUPREME COURT CASES 496 H.P.PYAREJAN V. DASAPPA (DEAD) BY LRS.AND OTHERS;
(ii) 2001(3) CTC 86 BHAGWANDAS FATECHAND DASWANI AND 4 OTHERS V. H.P.AINTERNATIONAL;
(iii) 2010(3) CTC 297 JUGRAJ V. P.SANKARAN AND OTHERS;
(iv) 1999-3-L.W.107 M/S.PALANICHAMY CHETTIAR FIRM V. C.ALAGAPPAN & ANOTHER;
(v) 2008-3-L.W.817 1.M/s.RAMNATH PUBLICATIONS PVT.LTD., and another v. A.R.MADANA GOPAL.
26. Certain excerpts from the recent decision of the Honourable Apex Court reported in (2011) 1 SUPREME COURT CASES 429 J.P.BUILDERS AND ANOTHER V. A.RAMADAS RAO AND ANOTHER would run thus:
“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.”
27. A mere poring over and perusal of the above extract, including the whole judgement, would go to the extent of pointing out that even if the defendant approaches the Court with contradictory pleas, it is the duty of the plaintiff to prove positively his readiness and willingness to perform his part of the contract.
28. No doubt, in this case, amply the plaintiff pleaded about his readiness and willingness. It has to be seen as to whether in stricto senso, the plaintiff was actually ready and willing to perform his part of the contract incommensurate and inconsonance with his pleadings.
29. The learned counsel for the defendants would submit that even though the defendants refused to execute the sale deed within the prescribed period of five months, as contemplated in Ex.A1, nonetheless without any rhyme or reason, the plaintiff took one year and one month’s time to issue pre-suit notice, which remains unexplained.
30. Whereas, the learned counsel for the plaintiff would invite the attention of this Court to the averments in the plaint, which would indicate and evidence that even though the defendants have not come forward to execute the sale deed, yet there were pinpricks and bickerings and because of that alone, it got delayed.
31. At this juncture, I would like to point out that indisputably and indubitably, unarguably and unassailably there is evidence to show that even within the prescribed period for performance i.e. five months, there was refusal on the part of the defendants to execute the sale deed, yet in the facts and circumstances of this case, the plaintiff was not enjoined to immediately issue notice and thereafter file the suit.
32. I do not say even for a moment that the plaintiff is at liberty to avail the entire limitation period and still have, during that period, hesitations in getting the sale deed executed in his favour. The pith and marrow of Section 16 of C.P.C, as stood explained in various precedents of the Apex Court, itself is that the plaintiff should be ready and willing to perform his part of the contract, but it should not be interpreted literally in a draconian manner to the effect that on each and every day the plaintiff should be ready and willing to perform his part of the contract.
33. The learned counsel for the defendants has invited my attention to the specific portion of the cross examination of P.W.2- Govindasamy and pointed out that P.W.2 himself stated that the plaintiff prayed a months’ time for performing his part of the contact.
34. I would like to point out that simply because during cross-examination P.W.2 deposed that the plaintiff wanted a months’ time to perform his part of the contract that it does not mean that he was hesitant or unwilling or not ready to perform his part of the contract. In fact, it might show that he was very much willing to get the contract fructified or concluded in his favour as otherwise he would not have prayed for that month’s time.
35. The preponderance of probabilities would govern the adjudication in civil cases. As on the date of emergence of Ex.A1 itself the plaintiff paid to defendants a sum of Rs.50,001 as advance and thereafter, if really the plaintiff was not having financial wherewithal and also was not ready and willing to perform his part of the contract in getting the sale deed executed, he would not have parted with another sum of Rs.50,000/- on 30.5.2001.
36. Over and above that my discussion supra would highlight and spotlight, indicate and exemplify the fact that possession of the suit property was handed over by the defendants to the plaintiff. As such, all these factors would unambiguously and unequivocally, pellucidly and palpably point out that the plaintiff had the financial wherewithal to purchase the property and he was also ready and willing to perform his part of the contract.
37. In respect of the alleged delay in sending the notice Ex.A2, what I would like to observe discuss is that in the proven set of circumstances, a year and one month’s taken by the plaintiff to issue notice cannot be taken as fatal because it is anybody’s guess that a person who part with one lakh and also in possession of the suit property would legitimately expect that one day or other good sense will prevail upon the defendants and that they would execute the sale deed amicably. The learned counsel for the defendants would submit that such a plea was not taken by the plaintiff.
38. I am of the considered view that when the circumstances project and canvass certain irresistible conclusions, there is no harm on the part of the Court in inferring so and accordingly here if viewed, the delay in taking legal action was not fatal to the plaintiff.
39. Relating to deposit of the remaining part of the sale consideration is concerned, I would like to point out that even before the passing of the judgement and decree by the trial Court, the said amount was deposited.
40. The learned counsel for the plaintiff would submit that after issuance of Ex.A2 namkevaste notice to the defendants, simply the plaintiff kept quite and there is no shard or shred, miniscule or molecular, iota or jot of evidence to evince or project that in compliance with Ex.A2-notice, the plaintiff presented himself at the Registrar office, after preparing the draft sale deed etc, for which, I would like to point out that the defendants have not even chosen to respond to such notice within the time stipulated therein and in such a case, I could see no force in the arguement as put forth and set forth on the side of the defendants that the plaintiff should have presented himself in the Registrar office as per Ex.A2.
41. No doubt, as has been correctly pointed out by the learned counsel for the defendants, the trial Court as well as the first appellate Court could have dealt with the matter in a much better manner. I am having no second thought over it. The trial Court being the first Court is enjoined to deal with all the aspects of the matter in detail and the first appellate Court, being the last Court of facts is also expected to deal with the evidence and discuss thread bare all the points in depth. However, their ultimate conclusion based on their own reasonings cannot be labelled or dubbed as perverse or illegal, warranting interference in second appeal.
42. It is a trite proposition of law as per the following decision of the Honourable Apex Court reported in 2010(7) SCC 717 [Laxman Tatyaba Kankate and another vs. Taramati Harishchandra Dhatrak] that if there are findings against a party then without filing appeal or cross-objection such party could not canvass as against the findings. However,if the findings are in favour of a party then by way of buttressing and supporting the findings, the party concerned can put forth any plausible argument.
43. As such, in this case, the ultimate findings, which are in favour of the plaintiff could not be find fault with and the learned counsel for the plaintiff was justified in drawing the attention of this Court to all the aspects of the case and in praying for confirming the judgements and decrees of the Courts below.
44. In view of the ratiocination adhered to above, the substantial questions of law are answered as under:
Substantial Question of law (i) is answered to the effect that on the plaintiff’s side the evidence adduced was sufficient to prove his readiness and willingness to perform his part of the contact.
Substantial Question of law (ii) is answered to the effect that the judgements and decrees of the Courts below are not liable to be set aside on the ground that they have not discussed thread bare the oral evidence of the witnesses.
Substantial Question of law (iii) is answered to the effect that the original suit for specific performance was not liable to be dismissed on the ground of alleged false plea on the part of the plaintiff relating to possession.
Substantial Question of law (iv) is answered to the effect that there is no perversity or illegality in the judgements and decrees of the Courts below.
43. Accordingly, I am of the view that there is no merit in the second appeal and it is dismissed. However, there is no order as to costs. Consequently, connected miscellaneous petition is dismissed.
Msk
To
1.The Principal District Judge, Dharmapuri.
2.The Subordinate Judge,
Dharmapuri