IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 123 of 1996()
1. P.BABY
... Petitioner
Vs
1. B.SADASIVAN
... Respondent
For Petitioner :SRI.L.MOHANAN
For Respondent :SRI.BIJU KURIAKOSE
The Hon'ble MR. Justice P.BHAVADASAN
Dated :18/06/2009
O R D E R
P. BHAVADASAN, J.
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S.A. No. 123 of 1996
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Dated this the 18th day of June, 2009.
JUDGMENT
The defendant in O.S. No. 1429 of 1986 before the
Munsiff’s Court, Thiruvananthapuram, who had suffered a decree
at the hands of the trial court and which was confirmed in appeal is
the appellant. The parties and facts are hereinafter referred to as
they are available before the trial court.
2. According to the plaintiff, as per Ext.A1 agreement
dated 7.6.1986, the defendant agreed to sell six an a half cents of
property in Sy. No.113/3 of Thiruvallam Village with a building
therein for a sale consideration of Rs.12,000/-. Rs.5,000/- was paid
in advance and the balance Rs.7,000/- had to be paid within two
months. Even though the plaintiff was ready and willing to
perform his part of the contract, inspite of repeated demands, the
defendant did not discharge his obligations. Ultimately the
plaintiff sent a notice, to which Ext.A3 reply was sent by the
defendant. Since the defendant was unwilling to execute the sale
deed, the suit was laid.
3. The defendant resisted the suit. He denied the
allegations in the plaint. In fact his defence was one of total denial
S.A. 123/1996. 2
and he went on to point out that the agreement relied on by the plaintiff
is a fabricated and concocted one. According to him, the suit was laid
at the instance of one Vasundharan, who was on enimical terms with
him. On the basis of these contentions, he prayed for a dismissal of the
suit.
4. For the purpose of the suit, the plaintiff had P.Ws.1 to 5
examined and Exts.A1 to A6 marked. Defendant was satisfied by
examining himself as D.W.1. On a consideration of the evidence
before it, the trial court came to the conclusion that the plaintiff has
succeeded in establishing the agreement for sale and accordingly
granted the relief prayed for by him. The defendant carried the matter
in appeal as A.S. 138 of 1988 before the Additional Sub Court,
Thiruvananthapuram. The first appellate court on an independent
consideration of the evidence on record confirmed the findings of the
trial court and dismissed the appeal. Hence the Second Appeal.
5. At the time of hearing, the learned counsel appearing for
the appellant raised only one point for consideration. According to the
learned counsel, the mandatory provision, namely Section 16(c) of the
S.A. 123/1996. 3
Specific Relief Act has not been complied with by the plaintiff and that
should result in the dismissal of the suit.
6. It may be recollected that the plaintiff relied on Ext.A1
agreement for sale in support of his case. He has examined five other
witnesses apart from himself to prove the agreement. Both the courts
below, after independent consideration of the evidence before them,
came to the conclusion that the plaintiff has succeeded in establishing
his case. Both the courts found that Ext.A1 was infact executed by the
defendant and he had received Rs.5000/- as advance towards sale
consideration. Both the courts held that the plaintiff has succeeded in
discharging the burden cast on him.
7. P.W.2 is one of the witnesses to Ext.A1 document. The
evidence of P.W.3 is not of much assistance to the plaintiff and he has
only hearsay knowledge about the transaction. P.W.4 is a scribe to
Ext.A1 document. It is relying on the evidence of P.Ws.1, 2 and 4 the
court below came to the conclusion that the claim of the defendant that
Ext.A1 document was a fabricated and concocted one cannot be
accepted. The trial court in fact compared the signatures in Ext.A1
S.A. 123/1996. 4
with other admitted signatures available in the court and found that
they are almost similar. Plaintiff was also successful in establishing
that he has sufficient funds to go through with the transaction. It has
come out in evidence that the defendant had 26 cents of land, out of
which he had sold 18 cents to Vasundharan and out of the balance 8
cents, six and a half cents was agreed to be sold to the plaintiff. The
court below have also noticed that the stamp paper on which Ext.A1
was drawn up was bought in the name of the defendant.
8. Coming to the specific contention by the appellant in the
appeal, it is useful to refer to Section 16(c) of the Specific Relief Act.
It reads as follows:
“16. Personal bars to relief.- Specific
performance of a contract cannot be enforced in favour of a
person-
(a)……………..
(b)…………….
(c) who fails to aver and prove that he has performed
or has always been ready and willing to perform the
essential terms of the contract which are to be performed by
him, other than terms the performance of which has been
S.A. 123/1996. 5
prevented or waived by the defendant.”
9. It is no doubt true that the above provision is mandatory
in nature. It is necessary for the plaintiff to aver and prove that he has
always been ready and willing to perform his part of the contract. On
failure to aver and prove the above facts, the suit will have to be
dismissed. Coming to the case on hand, on going through the plea in
paragraph 4 of the plaint, the above aspects are specifically mentioned.
One must notice that there is no particular form in which the plea has to
be made. Of course the statute suggests a form. On going through
paragraph 4 of the plaint, it is seen stated that the plaintiff was and is
ready and willing to perform his part of the contract. He then goes on
to state about the notice to the defendant etc. Coming to the evidence
of P.W.1 it is true that the exact words have not been used by him, but
he had stated that he had requested the defendant to execute the sale
deed in his favour and has shown his willingness to pay the balance
sale consideration. In fact, the trial court has considered this aspect
while dealing with issue No.2 in the suit. There is a specific finding
that the plaintiff was ready and willing throughout to perform his part
S.A. 123/1996. 6
of the contract. The appellate court has in paragraph 7 of its judgment
has found that the requirements of the provision are satisfied.
10. It could thus be seen that both the courts below have
considered all the aspects in detail and had come to the conclusion that
Ext.A1 is infact executed by the defendant and he is bound to execute
the sale deed. The finding of both the courts are based on appreciation
of the evidence in the case and does not call for any interference at all.
No substantial questions of law arise for consideration in this appeal.
The appeal is without merit and it is accordingly dismissed with costs
to the respondent.
P. BHAVADASAN,
JUDGE
sb.
S.A. 123/1996. 7
P. BHAVADASAN, J.
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S.A. No. 123 of 1996
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JUDGMENT
18.06.2009