JUDGMENT
P.S. Narayana, J.
1. The appellant in the Second Appeal is the plaintiff in the suit. Aggrieved by the reversing Judgment made in A.S. No. 25/87 on the file of Subordinate Judge, Bhimavaram, which was preferred as against the Judgment and decree made in O.S. No. 496/79 on the file of Principal District Munsif, Parvathipuram, the present Appeal is preferred.
2. The case of the appellant/plaintiff is that the defendants in the suit agreed to sell the plaint schedule property for a sum of Rs.3600/- and executed an agreement of sale on 14-5-1978 whereunder the appellant/plaintiff paid Rs.2000/- and agreed to pay the balance of Rs.1600/- at the time of registration and the time fixed for registration was two months and the appellant/plaintiff was put in possession of the suit schedule house immediately on the date of the said agreement of sale itself and the appellant/plaintiff has been ready and willing and demanding the defendants to perform their part of the contract and when the appellant/plaintiff was about to issue a registered notice calling upon the respondents/defendants to execute sale deed, they had issued a registered notice on 6-8-1979 to the effect the agreement of sale became time barred since the time is the essence of the contract.
3. The respondents/defendants admitted the execution of the said agreement of sale and also the receipt of Rs.2,000/-. It was also pleaded that the appellant/plaintiff was put in possession as a tenant long after the agreement of sale on payment of monthly rent of Rs.30/- and that the appellant/plaintiff was never ready to perform her part of the contract within the stipulated time. It was also pleaded that the suit agreement of sale might have been altered subsequently without their knowledge and there was neither a stipulation or a condition relating to the possession of the said house.
4. The trial Court framed certain Issues and recorded evidence of PW-1, PW-2 and DW-1 to DW-4 and marked Exs.A-1 to A-3 and on appreciation of both oral and documentary evidence the suit was decreed and aggrieved by the same, the defendants preferred A.S. No. 25/87 on the file of Subordinate Judge, Parvathipuram and the appellate Court had allowed the Appeal and aggrieved by the same, the present Second Appeal is filed.
5. Sri Laxminarayana Reddy, the learned counsel for the appellant/plaintiff had drawn my attention to the respective pleadings of the parties and the Issues which had been framed by the trial Court and also the Points for consideration which had been framed by the appellate Court and had contended that the appellate Court having concurred with the finding of the trial Court that the time is not the essence of the contract, should have granted the relief of specific performance instead of negativing the relief. The learned counsel also pointed out that on the aspect of readiness and willingness to perform the part of the contract, though a plea was taken, no issue was framed by the trial Court, but in the appellate Court it was framed as a Point for consideration and the relief was negatived on that ground. The learned counsel also had commented that the appellate Court had totally erred in reversing the well considered Judgment of the trial Court. The learned counsel also would point out that there is no plea relating to the interpolation in the agreement of sale – Ex.A-1, and certain findings had been recorded by the appellate Court in this regard though there is no specific plea and though no issue was framed by the trial Court. The learned counsel also had explained about the alleged interpolation and had contended that on that ground the relief cannot be negatived. The learned counsel also on the question of readiness and willingness to perform the contract by the appellant/plaintiff placed reliance on SYED DASTAGIR Vs. T.R. GOPALAKRISHNA SETTY,
, MOTILAL JAIN Vs. RAMDASI DEVI,
and PRITHVI RAJ SINGH Vs. DALIP KULKARNI, AIR 1999 RAJASTHAN
.
6. Sri Kanaka Raju, the learned counsel representing the respondents/defendants with all vehemence had contended that the relief of specific performance is an equitable relief and merely because the execution of Ex.A-1 is admitted by the parties, automatically the suit for specific performance need not be decreed. The learned counsel had pointed out that on the aspect of readiness and willingness, a specific plea was taken, but the Court of first instance had omitted to frame an Issue. The learned counsel further maintained that when the parties had let-in evidence and both the parties are conscious of the aspects relating to which the evidence has to be let-in, merely because the trial Court had omitted to frame an Issue, that will not preclude the appellate Court from framing a Point for consideration and recording findings in this regard and hence the appellate Court is justified in framing a Point for consideration relating to this aspect. The learned counsel also had taken me through the findings recorded by the appellate Court and also had pointed out that a specific plea was taken that on the date of the agreement of sale no possession was taken and there was no alteration and this plea is definitely sufficient and hence while dealing with the aspect of granting or negativing the relief of specific performance, the appellate Court had taken note of this material aspect i.e., alteration of the recitals relating to the essential terms of the contract, and had rightly refused the relief of specific performance.
7. Heard both the counsel.
8. On a perusal of the material available on record, the following substantial questions of law arise for consideration in this Appeal:
(a) Whether the appellate Court is justified in reversing the well considered Judgment of the trial Court, especially having concurred with the trial Court and holding that time is not the essence of contract ?
(b) Whether in the absence of framing of an Issue by the trial Court, the appellate Court is justified in framing a Point for consideration relating to the plaintiff’s readiness and willingness to perform her part of the contract ?
(c) Whether the findings or observations made by the appellate Court relating to the interpolation of Ex.A-1 regarding possession can be sustained in the absence of framing of any Issue by the trial Court ?
9. The execution of the agreement of sale – Ex.A-1, dated 14-5-1978, is admitted. Ex.A-1 agreement of sale was executed by the respondents/defendants in favour of the appellant/plaintiff and no doubt there is some controversy between the parties as to when actually possession was delivered. But the fact remains that the possession is with the appellant/plaintiff. The defendants had issued a registered notice – Ex.A-2, dated 6-8-1979 and on 13-8-1979 Ex.A-3 reply notice was given by the plaintiff to the defendants. No doubt, in the pleading the plaintiff had stated that when the plaintiff was inclined to issue notice, the defendants themselves had caused the notice. As can be seen from the Issues framed on the strength of the pleadings by the trial Court as many as five Issues had been settled and they are as follows:
1. Whether the agreement to sell dated 14-5-1978 is inoperative, invalid and unenforceable ?
2. Whether time is the essence of contract dated 14-5-1978 ? 3. Whether there is any landlord and tenant relationship between the defendants and plaintiff ? 4. Whether the plaintiff is not entitled to the relief to specific performance of the agreement to sell dated 14-5-1978. 5. To what relief if the plaintiff entitled ?
10. The plaintiff was examined as PW-1 who had deposed about the execution of Ex.A-1 agreement of sale, the receipt of consideration and the other conditions stipulated in the said agreement and no doubt this witness also deposed that she was ready and willing to offer the balance amount but the defendants have been avoiding to perform their part of the contract. When the defendants got issued Ex.A-2 notice demanding her to vacate the premises, PW-1 gave Ex.A-3 reply. PW-2 is one of the attestors of Ex.A-1 and no doubt he had deposed that the scribe is no more and had supported the case of the plaintiff. DW-1 is the 1st defendant who had admitted the execution of Ex.A-1 and also receipt of consideration but had denied delivery of possession to the plaintiff under Ex.A-1. This witness further deposed that the property was delivered to PW-1 two or three months subsequent to Ex.A-1 on rental basis and no doubt this witness also deposed that PW-1 was never ready to perform her part of the contract. The specific stand taken by him is that there is no stipulation about delivery of possession in Ex.A-1 and no doubt DW-1 also deposed about his filing R.C.C. No. 5/79 for eviction on the ground of wilful default. DW-2 is the other attestor of Ex.A-1 who deposed that PW-1 expressed her inability to pay balance of Rs.1600/- and requested for leasing of the house and hence the house was leased out to her. He further deposed that the plaintiff was occupying the premises as tenant. DW-3 and DW-4 are the residents of Kanchara veedhi and Rowthu street respectively and they deposed about certain aspects relating to PW-1 staying as a tenant.
11. As can be seen from the Issues which had been framed by the trial Court, no specific Issue was framed relating to the plaintiffs readiness and willingness to perform her part of the contract. But the appellate Court in the points framed for consideration had framed the following Points:
1. Whether the time is the essence of the contract dated 14-5-1978 ? 2. Whether the respondent is ready and willing to perform her part of contract ? 3. Whether the respondent is entitled to the specific performance of agreement to sell dated 14-5-1978 ?
12. The appellate Court had affirmed the findings of the trial Court relating to Point No. 1 and as far as Point No. 2 is concerned, the appellate Court came to the conclusion that the plaintiff was not ready and willing to perform her part of the contract. While answering Point No. 3, the interpolation relating to delivery of possession in Ex.A-1 was discussed in detail and ultimately came to the conclusion that the appellant/plaintiff is not entitled to the equitable relief of specific performance of Ex.A-1. The appellate Court at paragraph-27 of its Judgment had observed:
“The interpolation was not initialled by the scribe. Further, it is clear to the nacked eye that the interpolation and the mention by the scribe as to the interpolation at line 31 in para 2 are written at different times. Further the below line is in continuity of the above line of the sentence of interpolation. A careful examination made it clear that it is an interpolation. Further, the scribe mentioned the correction in the 3rd para first and later the interpolation in the 2nd para was mentioned. If really, the interpolation was there by the time of execution of Ex.A-1, the scribe would have mentioned the interpolation in the 2nd para first and then the correction in the 3rd para. The inserted sentence and the mention of the scribe as to the insertion at the end of para 3 would have been in the same manner and in the same ink with that of the other writing in Ex.A-1. The lower Court has not considered the above circumstances. Therefore, it is clear that the insertion of interpolation in para 2 of Ex.A-1 was made subsequently.”
13. The learned counsel for the appellant had laid serious emphasis on this aspect and had contended that in the absence of specific plea and the framing of issue, these findings are of no consequence and hence inasmuch as the normal rule is that a suit for specific performance has to be decreed, the appellant/plaintiff is entitled to the relief of specific performance. It is no doubt true that no issue was framed, but however on the material available on record certain findings had been recorded. It is also true that the appellant/plaintiff had specifically pleaded about the readiness and willingness to perform her part of the contract. Strong reliance was placed on the decisions referred supra.
14. Though specific issue was not framed, in view of the respective pleadings of the parties the parties had gone on trial and some evidence had been let-in in this regard also. But however, when there is a specific plea and denial, the trial Court should have framed appropriate issues and normally when the matter was not put in issue before the trial Court, the appellate Court cannot frame it as a point for consideration and decide such a point, especially in cases where on the material available, the appellate Court is satisfied that definitely prejudice will be caused to the parties. May be, there may be cases where though specific issue was not framed, both the parties may let in evidence on a particular aspect depending upon the respective pleadings and hence it cannot be laid down as a general rule that in no circumstances when a specific issue had not been framed in the trial Court, the appellate Court shall not frame a point for consideration under Order 41 Rule 31 C.P.C.
15. The most crucial aspect involved in the present Appeal is relating to the interpolation in Ex.A-1 regarding recital of delivery of possession. The appellate Court had discussed this aspect at length under Point No. 3 but no issue had been framed by the trial Court. When a specific plea had been taken since the enforceability of an agreement of sale will depend upon the interpolation or material alteration in the terms of the contract, the Court of first instance should have framed a specific issue and should be permitted the parties to let-in evidence and in this view of the matter, I am of the considered opinion that the appellate Court is not justified in reversing the Judgment of the trial Court by framing both Points 2 and 3, though no such issues had been framed by the trial Court. Order 41 Rule 25 C.P.C. deals with the aspect where appellate Court may frame issues and refer them for trial to Court whose decree is appealed from. Order 42 Rule 1 C.P.C. specifies that the Rules of Order 41 shall apply so far as may be to Appeals from appellate decrees. In the light of this legal position and after taking into consideration all the facts and circumstances and after going through the complete material available on record, I am of the considered opinion that this is a fit matter where the following Issues are to be framed:
1. Whether the plaintiff is not entitled to the relief of specific performance for being not always ready and willing to perform her part of the contract ?
2. Whether Ex.A-1 transaction is vitiated by virtue of the alleged interpolation and whether the relief of specific performance can be negatived on that ground in the facts and circumstances of the case ?
16. In view of the framing of additional Issues and inasmuch as I feel that an opportunity should be given to both the parties to let-in further evidence on these Issues, I am inclined to remand the matter to the original Court – Principal District Munsif, Parvathipuram, for the purpose of affording opportunity to the parties to let-in evidence on these Issues and dispose of the matter in accordance with law.
17. Accordingly, the matter is remanded to the Court of first instance. The Appeal is allowed to the extent indicated above. No order as to costs.