BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:18/06/2009 Coram THE HONOURABLE MS.JUSTICE R.MALA S.A.(MD)No.48 of 2004 and S.A.(MD)No.49 of 2004 N.Amirthalingam .. Appellant in both appeals Vs. A.Dhanapal .. Respondent in both appeals
PRAYER
Second Appeals filed under Section 100 of the Code of Civil Procedure,
against the judgments and decrees of the learned I Additional Subordinate Judge,
Thiruchirapalli dated 23.12.2003 in A.S.Nos.64 and 65 of 2002 confirming the
decrees and judgments made in O.S.No.210 and 217 of 1996 dated 27.03.2002 on the
file of the District Munsif, Lalkudi.
!For Appellant … Mr.Sreenivasan
^For Respondent … Mr.A.Thirumoorthy
:COMMON JUDGMENT
These Second Appeals have been filed by the appellant against the
judgments and decrees of the I Additional Subordinate Judge, Thiruchirapalli
dated 23.12.2003 in A.S.Nos.64 and 65 of 2002 confirming the decrees and
judgments made in O.S.No.210 and 217 of 1996 dated 27.03.2002 on the file of the
District Munsif, Lalkudi.
2. The gist and essence of averments in the plaint in O.S.No.210 of 1996
is as follows:
The plaintiff’s brother-in-law was the defendant. The suit property
belong to the defendant. The defendant entered into a sale agreement with the
plaintiff on 22.05.1985 for a sale consideration of Rs.22,500/-. The plaintiff
had paid a sum of Rs.15,000/- as advance on the same day. The defendant had
agreed to receive the balance amount of sale consideration of Rs.7,500/- and
execute the sale deed. No time for completion of the sale agreement was fixed.
The plaintiff had paid a sum of Rs.4,000/- to one Nagarajan, S/o.Rangasami Nadar
on 21.06.1986 being the amount due by the defendant to said Nagarajan towards
the mortgage deed as per the direction of the defendant. Apart from that, a sum
of Rs.8,000/- was also paid to the defendant’s daughter Usha Nandhini in August
1986. Further, a sum of Rs.1,800/- was paid to one R.D.Doraisami, Advocate
towards the lease arrears amount due and payable by the defendant to Sellammal,
Landlady. Thus, the entire sale consideration has been paid by the plaintiff to
the defendant. But, the defendant was evading to execute the sale deed. Hence,
the plaintiff issued lawyer’s notice on 30.04.1990. The defendant received the
same on 02.05.1990 and he sent a reply on 16.05.1990 with false allegations and
refused to execute the sale deed. The defendant agreed to return the sum of
Rs.15,000/- received by him on 22.05.1985. Since the defendant was evaded to
execute the sale deed, the plaintiff had constrained to file the Suit for
Specific Performance of Contract and he prayed for a decree of Specific
Performance.
3. The gist and essence of Written Statement filed by the defendant is as
follows:
The relationship of both parties was admitted. The inception of sale
agreement and receipt of advance amount and sale consideration was admitted. No
time limit fixed was also admitted. The balance amount of Rs.7,500/- should be
paid on demand. Except the advance of Rs.15,000/- no amount was paid nor
offered to the defendant towards the sale agreement. Exchange of notice between
the parties was admitted. The plaintiff had not paid the balance amount of sale
consideration of Rs.7,500/- and completed the agreement as agreed. Hence the
defendant demanded the plaintiff to pay the balance and complete the sale. A
panchayat was also held for this purpose. In the panchayat, plaintiff had
expressed his inability to pay the balance of sale price and complete the sale.
The plaintiff as agreed to receive back the advance amount of Rs.15,000/-
whenever the plaintiff sell the suit property to third party. Hence the sale
agreement dated 22.05.1985 was not acted upon. The defendant was willing to
repay the advance amount of Rs.15,000/-. Taking advantage of the injunction
order passed in I.A.No.269 of 1990, plaintiff was frequently attempted to
trespass into and captured the suit property by force. The defendant is the
possession of the property. Hence, he prayed for the dismissal of the suit.
4. The learned District Munsif, Lalgudi after considering both the
plaintiffs and written statements had framed three issues.
5. The gist and essence of averments in the plaint in O.S.No.217 of 1996
is as follows:
The suit properties absolutely belonging to the plaintiff by virtue of
registered sale deed dated 17.12.1973. He is in possession and enjoyment of the
same by way of paying kist. On 22.05.1985, both plaintiff and defendant entered
into a sale agreement. As per the sale agreement, the plaintiff had agreed to
sell half of the suit property in favour of the defendant for a price of
Rs.22,500/- and received a sum of Rs.15,000/- as advance. The defendant had
not paid the balance of sale consideration of Rs.7,500/- and completed as
agreed. Hence, the plaintiff asked the defendant to pay the balance and
complete the sale. A panchayat also had been held and in the panchayat, the
defendant had expressed his inability to pay the balance of sale price and
complete the sale. He had agreed to receive back the advance amount of
Rs.15,000/- whenever the plaintiff sells the suit property to third party.
Hence, the sale agreement was not acted upon. On 30.04.1990, the defendant
issued a lawyer notice with false and untenable contention that he had paid the
entire sale price of Rs.22,5000/-. Plaintiff had issued a suitable reply notice
dated 16.05.1990. On 03.06.1990, the defendant, with the help of some of his
men, had trespassed into the suit property and attempted to put up a thatched
shed on the westen part of the suit property. It was prevented by the
plaintiff. The defendant can only resort to the Court for his remedies and he
cannot take the law in his own hands. Hence, he had constrained to file the
suit for bare injunction and prayed for a decree.
6. The gist and essence of Written Statement filed by the defendant is as
follows:
The plaintiff had no right to file the suit. He is not entitled for any
injunction. The sale agreement is true and the other allegations are false.
The defendant had paid Rs.4,000/- to one Nagarajan on 21.06.1986 being the
amount due by plaintiff towards the mortgage to the said Nagarajan. Apart from
that, a sum of Rs.2,000/- was paid to his daughter Usha Nandhini in August 1986.
Further, a sum of Rs.1,800/- also was paid to one R.D.Doraisami, Advocate
towards lease arrears amount due and payable by the plaintiff to Chellammal
Landlady. Thus the entire sale consideration had been paid by the defendant.
All the said payments were made according to the directions of the plaintiff.
The allegation that there was a panchayat and the defendant expressed his
inability to pay the balance and agreed to receive the advance back were all
denied. The plaintiff attempted to sell the suit property to one Seshachalam
and the same was prevented by the plaintiff and this fact was known to one
Lakshmanan Chettiar, who was having the original title deeds for the amounts due
to him from the plaintiff. In fact, one Jambulingam Pillai, a close friend of
the plaintiff attempted to put up constructions in the property. The said
attempt was thwarted. The said Jambulingam is none other than the sister’s son
of the plaintiff’s advocate. Only at his instigation and in order to grab at
the property, the suit had been instituted by the plaintiff with false and
frivolous allegations. No cause of action would arise. Since the suit for
specific performance had been filed for one property, the plaintiff is not
entitled to file a suit for bare injunction on the same property. The plaintiff
having received entire sale consideration had no right to file the suit for any
injunction. The suit has been not properly valued. The Court fee paid was not
correct. Hence, he prayed for the dismissal of the Suit.
7. The trial Court after considering the averments both in the plaint and
written statement, had framed two issues. Both the suits were tried together.
Considering the oral evidences of P.Ws.1 and 2, D.Ws.1 to 3 and documents in
Exs.A1 to 4 and Exs.B1 to 9, decreed the suit with costs in O.S.No.210 of 1996
and granted bare injunction in O.S.No.217 of 1996 except 19.5 cents in Eastern
side of the suit property mentioned in O.S.No.210 of 1996. Against the decree
and judgment made in O.S.No.210 of 1996, the defendant/Amirthalingam had
preferred an appeal in A.S.No.65 of 2002 against the plaintiff/Dhanapal, before
the learned I Additional Subordinate Judge, Thirichirappalli and against the
dismissal portion of the decree and judgment made in O.S.No.217 of 1996, the
plaintiff/Amirthalingam had preferred an appeal in A.S.No.64 of 2002 against the
defendant/Dhanapal, before I Additional Subordinate Judge, Thirichirappalli and
both the appeal were also tried together.
8. The learned I Additional Subordinate Judge, Thiruchirappali, after
considering the arguments of both sides and framing proper points for
consideration, had dismissed the appeal in A.s.No.64 of 2002 and confirmed the
decree and judgment in O.S.No.217 of 1996 partly allowed the appeal in A.S.No.65
of 2002 and modifyied the decree and judgment in O.s.No.210 of 1996, directing
the plaintiff/Dhanapal to pay the balance amount of sale consideration of
Rs.3,500/- and the defendant/Amirthalingam was also directed to execute the sale
deed in favour of plaintiff/Dhanapal after receiving the balance amount of sale
of consideration. Two months time had been granted for payment of balance of
sale consideration.
9. Aggrieved against the judgments and decrees of the learned I Additional
Subordinate Judge, Thiruchirappalli, the appellants before the first Appellate
Court, has preferred the present second appeals.
10. The substantial questions of law arises in the Second Appeals are as
follows:
"1. What is the meaning of the words "vt;tpj bfLtd;dpapy;"?
2. Whether the suit filed by the plaintiff was not barred by limitation?
3. Whether the plaintiff could maintain a suit for specific performance
without pleading and proving readiness and willingness?
11. Points 1 to 3: The Plaintiff in O.S.217 of 1996 and the defendant in
O.S.No.210 of 1996 and the appellants in both appeals in A.S.Nos.64 and 65 of
2002 is the appellant herein.
12. The appellant is the owner of the property. The appellant’s brother
in law is the respondent herein. Both the appellant and respondent had entered
into a sale agreement. The sale agreement is an admitted one. The sale price
was fixed as Rs.22,500/-. Payment of advance of the sale consideration of
Rs.15,000/- is an admitted one. It is also an admitted fact that the respondent
herein has paid a sum of Rs.4,000/- to one Nagarajan. The respondent herein has
raised a plea that he paid the balance of Rs.2,000/- to the daughter (Usha
Nandhini) of the appellant herein and also a sum of Rs.1,800/- also was paid by
the respondent to one Advocate R.d.Doraisamy, to pay the lease arrears due and
payable by the appellant to one Chellammal, Landlady. The trial Court had
accepted the same and the first Appellate Court had disagreed the same in
respect of payment of Rs.3,500/-. But, given a decree directing the respondent
to pay the balance sale consideration amount of Rs.3,500/- to the appellant and
the appellant was also directed to execute the sale deed in favour of the
respondent after receiving the balance amount of sale consideration. After the
decree passed by the first Appellate Court, the respondent herein had deposited
the amount of Rs.3,500/- before the Court. The above facts of the case are not
disputed.
13. The learned appellant counsel would contend that there is no time
limit has been fixed by both the parties for completing the sale. On
22.05.1985, Ex.A1 came into existence and the suit was filed on 12.07.1990. The
suit ought to have file within three years from 22.05.1985.
14. Per contra, the respondent counsel would contend that the time limit
commenced from the date when the appellant was refusing to execute the sale
agreement, since no time limit has been fixed, he prayed for the dismissal of
the appeals. He further contended that since the appellant herein has evaded to
execute the sale deed, the respondent had issued notice under Ex.A3 on
03.04.1990 and reply has been received on 16.05.1990, in the reply, the
appellant had refused to execute the sale deed in favour of the respondent and
he filed the suit on 12.07.1990 and hence the suit is not barred by limitation.
15. It is true no time limit has been fixed in Ex.A1. As per Article 54
of the Limitation Act, period of limitation starts from the date of refusal to
execute the sale deed. The genuineness of Ex.A1 is admitted. Hence, the suit
is not barred by limitation. While considering the paragraph No.8 of the
written statement filed in O.S.No.210 of 1996, the appellant herein had stated
that the respondent had agreed before the panchaytdars to receive back the
advance amount of Rs.15,000/-. This shows that he had refused to execute the
sale deed. Since no time limit has been fixed for execution of sale deed, the
limitation starts only from the date of refusing to execute the sale deed i.e.
16.05.1990. The respondent herein filed the suit on 12.07.1990 within three
years from the date of refusal to execute the sale deed. Hence suit is well
within time and not barred by limitation.
16. In the agreement Ex.A1, it has been stated as follows:
“ghf;fpj; bjhif U.7,500/- Ia[k; vt;tpj bfLtd;dpapy; ehd; jA;fs[lk; bgw;Wf;
bfhz;L vt;tpjkhd tpy;yA;fKk; ny;yhky; ehd; jA;fSf;F yhy;Fo rg;hp$p!;lh; Mgprpy;
fpiua rhrd hp$p!;lh; jA;fs; rpytpy; bra;J bfhLj;JtpLBtdhft[k;”””
The word “vt;tpj bfLtd;dpapy;”” would mean that as soon as the appellant herein
received the balance sale consideration of Rs.7,500/-, the appellant ought to
have execute the sale deed immediately without any encumbrances. So, it has not
meant about the time for performance of contract by the respondent. The
appellant herein had not given any reason for non execution of the sale deed
after the receipt of the balance amount. Hence, I am of the opinion that the
time has not been fixed for performance of contract and time is not an essence
of contract. As per Article 54 of the Limitation Act, for enforcing specific
performance of contract, the date fixed for the performance, or, if no such date
is fixed, when the plaintiff has notice that performance is refused. As already
discussed, the respondent herein has issued lawyer notice under Ex.A3 and the
same was received by the appellant herein and a reply has been sent as per Ex.A4
on 16.05.1990. Since, he has refused to execute the sale deed, the respondent
herein had filed the suit in O.S.No.210 of 1996 on 12.07.1990 and the suit is
well within the time.
17. In paragraph 5 of the plaint in O.S.No.210 of 1996, the
plaintiff/respondent herein has pleaded as follows:
“The plaintiff had been demanding the defendant to execute a sale deed in
respect of the suit property. But the defendant was evading to execute the sale
deed under one pretext or the other. The plaintiff issued a lawyer notice on
30.04.1990.”
In his chief examination, he has stated that he has deposed as follows:
“gyKiw ehd; Bfl;Lk; vGjpj; jUfpBwd; vd;Wjhd; brhd;dhBu jtpu Mdhy; vGjpj;
jutpy;iy. fhyk; flj;jp te;jjhy; gaj;jpdhy; 1990-k; Mz;L (30.04.90) tHf;fwpqh;
Kykhf mwptpg;g[ xd;W bfhLj;Bjd;. Behl;o!; Kyk; gj;jpuk; vGjpf; bfhLf;Fk;go
Bfl;Bld;.
This shows that the respondent herein always ready and willing to perform his
part of contract. Since the appellant herein had evaded to execute the sale
deed, the respondent had issued lawyer notice and filed the suit well within the
time. In the above said circumstances, I am of the opinion that the respondent
herein is always ready and willing to perform his contract and he is entitled
for the decree of Specific Performance. The trial Court and the first Appellate
Court have come to the correct conclusion and passed the decree of specific
performance. I find there is no infirmity in the judgment and decree passed by
the learned first Appellant Judge in A.S.No.65 of 2002 and the same is
confirmed.
18. Both O.S.No.210 of 1996 suit for specific performance of Contract and
O.S.No.217 of 1996 suit for bare injunction have been tried together in the
trial Court and common judgment has been passed. In the first appellate Court
also, both the appeals have been taken on file and tried together and common
judgment has also been passed. At the time of filing second appeals against the
decrees and judgments of the first Appellate Court, in A.S.No.65 of 2002,
substantial question of law has been arisen and the same were framed in
S.A.No.48 of 2004. Even though, in A.s.No.64 of 2002, the Suit in O.S.No.217 of
2005, which was filed for bare injunction, to avoid the technicality, the second
appeal has been taken on file in S.A.No.49 of 2004 and no substantial question
of law has been framed.
19. The learned appellant counsel would also contend that he filed the
suit in O.S.No.217 of 1996 for bare junction in respect of the entire suit
property. But, as per Ex.A1, the sale agreement had made in respect of 19.5
cents, out of total extent is 39 cents, the Trial Court, after considering the
oral evidence and documents of both sides, granted injunction in respect of the
property excluding the suit property mentioned in O.S.No.210 of 1996. The first
Appellate Court had also accepted the view of the trial Court and dismissed the
suit filed for bare injunction. The trial and first Appellate Court have
decided the facts after considering the oral and documentary evidence. The
first Appellate Court is last fact finding Court. Section 100 Cr.P.C. reads as
follows:
1.Save as otherwise expressly provided in the body of this Code or by any other
law for the time being in force, an appeal shall lie to the High Court from
every decree passed in appeal by any Court subordinate to the High Court, if the
High Court is satisfied that the case involves a substantial question of law.
2.An appeal may lie under this section from an appellate decree passed ex parte.
3.In an appeal under this section, the memorandum of appeal shall precisely
state the substantial question of law involved in the appeal.
4.Where the High Court is satisfied that a substantial question of law is
involved in any case, it shall formulate that question.
5.The appeal shall be heard on the question as formulated and the respondent
shall, at the hearing of the appeal, be allowed to argue that the case does not
involve such question:
Provided that noting in this sub-section shall be deemed to take away or abridge
the power of the Court to hear, for reasons to be recorded, the appeal on any
other substantial question of law, not formulated by it, if it is satisfied that
the case involves such question.
As per the decision reported in (2206)2 M.L.J. 197 (S.C.) (G.Mahalingappa V.
G.M.Savitha) it was held that it is equally settled that High Court in second
appeal is not entitled to interfere with the concurrent findings of fact arrived
at by the Court below until and unless it is found that the concurrent findings
of fact were preserve and not based on sound reasoning. While considering the
above said citation, since there is no question of law has been involved in this
case, since the suit is for bare injunction, in respect of the question of fact,
both trial Court and first Appellate Court have come to the concurrent finding.
Hence, this Court is not inclined to interfere with the findings of the trial
Court and first Appellate Court. I am of the opinion that the second appeal is
failed and the appellant is not entitled for any relief.
20. In the result, the second appeals are dismissed. The judgments and
decrees of the learned I Additional Subordinate Judge, Thiruchirapalli dated
23.12.2003 in A.S.Nos.64 and 65 of 2002 are confirmed. Considering the
relationship of both parties, they are directed to bare their own costs.
arul
To
1. The I Additional Subordinate Judge, Trichy.
2. The District Munsif, Lalkudi.