IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27/06/2003
CORAM
THE HONOURABLE MR.JUSTICE V.KANAGARAJ
SECOND APPEAL NO.1711 OF 1991
1.Kaliappan (died)
2.K.Natarajan (died)
3.N.Ananthi
4.N.Kapila
5.N.Aditya (Minor) rep.by
her mother & natural guardian
third appellant ... Appellants
(Second appellant brought on record
as L.R. of the deceased sole appellant
by order of the Court dated 16.7.2002
made in C.M.P.No.17851 of 2001.)
(Appellants 3 to 5 are brought on
record as L.Rs. of the deceased
second appellant as per the order
of the Court dated 4.4.2003
made in C.M.P.No.4628 of 2003)
-Vs-
1.Venkatachalam
2.Chinnammal ... Respondents
Second Appeal preferred under Section 100 C.P.C. for the relief as
stated therein.
For appellants : Mr.S.Duraisamy
^For R.1 : Mr.K.Mohanram
For R.2 : No Appearance
:JUDGMENT
The above second appeal is directed against the judgment and
decree dated 30.9.1991 rendered in A.S.No.35 of 1990 by the Court of I
Additional Subordinate Judge, Coimbatore thereby setting aside the judgment
and decree dated 10.8.1989 rendered in O.S.No.878 of 1979 by the Court of I
Additional District Munsif, Coimbatore.
2. The deceased first appellant is the first defendant in the
suit. The first respondent herein is the plaintiff and the second respondent,
who is none other than the wife of the deceased first appellant is the second
defendant in the suit.
3. For the sake of convenience and for easy reference, the
parties are referred to as they are arrayed in the suit.
4. The suit was originally filed only against the deceased
first appellant herein for specific performance of the agreement dated 29.9.1
978 executed by him in favour of the plaintiff further directing the defendant
to execute the sale deed in favour of the plaintiff, failing which the Court
to execute the sale deed regarding the suit properties in favour of the
plaintiff and consequently direct the defendant to deliver possession of the
properties to the plaintiff and for costs.
5. The case of the plaintiff is that the suit property
absolutely belongs to the first defendant; that on 20.9.1978, the first
defendant executed an agreement in favour of the plaintiff to sell the same
for a sum of Rs.5,000/= and on the same date, a sum of Rs.2,000/= was received
by the first defendant as advance; that as per the sale deed, the first
defendant has to execute the sale deed in favour of the plaintiff in a period
of ten months, after receiving the balance sale consideration; that as the
suit property is only a vacant site, after the agreement, the plaintiff spent
about Rs.2,000/= to level the site and also to put necessary fence; that now
since he is having sufficient funds to pay the balance sale consideration, the
plaintiff approached the first defendant and requested him to execute the sale
deed, but the defendant set-up his wife, Chellammal, to issue a notice stating
that she has got right over the properties and that the properties should not
be sold for which the plaintiff sent a reply; that the wife of the defendant
is living with him and she is also aware of the agreement executed by the
defendant; that after issuance of the said notice, even though the plaintiff
approached the defendant and requested him to execute the sale deed, the
defendant began to put up a construction in the said site and therefore, on
2.5.1979, the plaintiff lodged a complaint with the Peelamedu Police and when
the police enquired both the plaintiff and the defendant, the defendant
replied that he is not willing to execute the sale deed and therefore, Police
directed both parties to seek remedies before a Court of law; that the wife of
the defendant claims that the sale in favour of the defendant is a benami sale
and hence the suit.
6. The first defendant filed a written statement thereby
denying all the allegations of the plaint and further submitting that no doubt
there was an agreement, but under that agreement, the price stipulated was
Rs.8,000/= and the agreement mentioned in the plaint as one providing for sale
of the property for Rs.5,000/= is false; that the property measures 4 cents
and 148 square feet and the price of Rs.5,000/= mentioned in the plaint is far
too low; that the price agreed upon and mentioned in the written agreement was
Rs.8,000/= and not Rs.5,00 0/= and the suit has been filed obviously on a
false agreement; that the plaintiff never approached this defendant for
executing the sale deed; that the plaintiff was never ready to take the sale
deed by paying money as provided for in the agreement in which Rs.8,000/= was
mentioned as the price; that the plaintiff has filed the suit suppressing the
true written agreement and even as per the true written agreement, the
plaintiff was never ready to perform his part of the contract; that the
plaintiff did not show the agreement to the police even; that the defendant
said that he would execute the sale deed if the plaintiff paid the balance of
Rs.6,000/=, but since the plaintiff was not agreed to the said proposal, this
defendant replied that she would not execute the sale deed after receiving
Rs.3,000/= offered by the plaintiff. On such grounds, the first defendant
would pray to dismiss the suit with costs.
7. The first defendant also filed an additional written
statement thereby denying the execution of the document dated 20.9.1978 and
further submitting that the plaintiff created the said document with the help
of his friends and relatives with a view to make huge profits wrongfully; that
even at the time of the alleged agreement, sites in the vicinity with the
similar advantages were sold at Rs.5,000/= per cent and later on, the prices
have shot-up and now one cent is sold in the vicinity at Rs.10,000/= ; that
the property is situate just opposite to Nava India and in the industrial
locality and hence one cent of land is easily wroth Rs.10,000/= at present;
that the plaintiff has not come before the Court with clean hands; that his
wife is still earning in the Mills and the suit property was purchased by both
the defendant and his wife for a sum of rs.4,305/= and the sale consideration
was paid by his wife from out of her savings from the monthly wages; that the
property was purchased in the name of this defendant since he assured that he
would not sell or squander; that the circumstances under which the property
was purchased were well known to the plaintiff and with an evil design to
clutch the property an agreement of sale is fabricated by the plaintiff; that
the plaintiff was not given possession of the suit site; that the defendant,
from the date of purchase of the property, is in possession of the same along
with his wife; that the value given is ridiculously low and the value ought to
have been Rs.40,000/=; that the wife of this defendant is a necessary party
and the suit must fail for non-joinder of necessary parties. On such grounds,
this defendant would pray to dismiss the suit with costs.
8. Since the defendant has taken the stand that the suit is
bad for non-joinder of his wife, the plaintiff filed a petition in I.A.No.77 8
of 1981 to implead the wife of the defendant as the second defendant in the
suit and on the same having been allowed by the trial Court, the wife of the
defendant was brought on record as the second defendant and she also filed a
written statement thereby submitting that the suit property is her absolute
property; that she is working in Varadharaja Mills for the last about 25 years
and has purchased the same with the savings earned in her income from the mill
and from her other properties; that the suit property is in her possession
from the date of its purchase; that the first defendant has no manner of right
or interest in the property; that this defendant’s son Natarajan is also
claiming a share in the property and he has also filed a suit for partition;
that the first defendant is in the habit of quarrelling with this defendant
and used to live away from the family for months and taking advantage of the
first defendant’s weakness and squandering habit, the plaintiff fraudulently
brought into existence the suit document with the help of his close relatives
Veluswamy and Ramaswamy by means of forgery; that the first defendant did not
execute the sale agreement; that the alleged agreement is void ab initio; that
in a suit for specific performance, the plaintiff ought to have clearly stated
that he has been ever ready and willing to purchase from the inception of the
document and this gross omission discloses that everything has been done in
haste and under suspicious and fraudulent circumstances. On such allegations,
this defendant would pray to dismiss the suit with costs.
9. Based on the above pleadings by parties, the trial Court
would frame the following issues for determination:
1.Whether the plaintiff is entitled to the specific performance of agreement
dated 20.9.1978?
2.Whether the plaintiff is entitled to delivery of possession as prayed for?
3.To what relief?
Thereupon, the trial Court would conduct a thorough trial wherein the
plaintiff besides examining himself as P.W.1 would also examine three more
witnesses as P.Ws.2 to 4 for oral evidence and would mark four documents as
Exs.A.1 to A.4 for documentary evidence, Ex.A.1 dated 20.9.1978 is the sale
agreement alleged to have been entered into in between the plaintiff and the
first defendant, Ex.A.2 dated 28.4.1979 is the lawyer’s notice issued by the
second defendant to the plaintiff and the first defendant; Ex.A.3 dated
3.5.1979 is the copy of the reply notice sent by the plaintiff’s advocate to
the second defendant’s advocate and Ex.A.4 dated 2.5.1979 is the notice sent
by the police to the plaintiff and the first defendant. On the other hand,
even though no documentary evidence was submitted on behalf of the defendant,
the defendants would examine themselves as D.Ws.1 and 2 respectively.
10. The trial Court, in consideration of the evidence placed
on record and having found the plaintiff not ready and willing to get the sale
deed executed, has ultimately dismissed the suit. Aggrieved, the plaintiff
preferred an appeal in A.S.No.35 of 1990 before the Court of I Additional
Subordinate Judge, Coimbatore and the said Court, having appreciated the
evidence placed on record, would ultimately decree the suit. It is only
against the said judgment and decree of the first appellate Court, the first
defendant in the suit has come forward to prefer the above second appeal on
grounds such as (i) that the first appellate Court failed to appreciate that
in view of Section 1 6(c) of the Specific Relief Act, it is mandatory for the
plaintiff to allege and prove his continuous readiness and willingness to
perform his part of the agreement from the date of the contract; (ii) that the
first appellate Court failed to appreciate that the plaintiff has not even
pleaded in the plaint that he is reedy and willing to perform his part of the
contract and in the absence of pleading, the plaintiff cannot even let in
evidence and the plaintiff realizing his omission to plead in the plaint,
filed a petition for amendment to insert the plea of readiness and willingness
to perform his part of the contract and the same was dismissed by the
appellate Court and (iii) that the first appellate Court after dismissing the
said petition for amendment, committed a grave illegality in stating that
Section 16(c) of the Specific Relief Act has been complied with. This Court
admitted the above second appeal for determination of the following
substantial questions of law:
1.Whether or not the first appellate Court committed a grave illegality in not
dismissing the suit in the absence of any averment in the plaint that he was
ready and willing to perform his part of the contract?
2.Whether or not the absence of an averment in the plaint that the plaintiff
was ready and willing to perform his part of the contract amounts to failure
to disclose a cause of action in regard to the relief for specific performance
and as such the suit is liable to be dismissed?
3.Whether or not the finding of the first appellate Court contrary to the
finding of the trial Court is not vitiated by its failure to consider the
pleading and the evidence?
11. During arguments, the learned counsel appearing on behalf
of the appellants besides bringing forth the facts of the case as pleaded on
the part of the appellant and the respondent as well, the evidence placed on
record and the decisions arrived at by the courts below, would lament against
the first appellate Court having not given credence to the sentiments and
legality of the trial Court in arriving at its conclusion to hold that the
agreement was genuine but at the same time dismissing the suit on ground that
since it was a mandatory obligation on the part of the first
respondent/plaintiff to be ready and willing to perform his part of contract
thus giving effect to Section 16(c) of the Specific Relief Act. At this
juncture, the learned counsel would cite a judgment of the Honourable Apex
Court rendered in MAJUNATH ANANDAPPA urf SHIVAPPA HANASI vs. TAMMANASA AND
OTHERS reported in 2003 (2) CTC 109 wherein it has been held:
“Pleading regarding readiness and willingness is mandatory and that the Court
should cull out readiness and willingness from reading all averments in plaint
coupled with materials brought on record during trial only in exceptional
cases.”
12. The learned counsel for the appellants would also cite
yet another judgment of the Division Bench of this Court rendered in
ARUNACHALA MUDALIAR vs. JAYALAKSHMI AND ANOTHER reported in 2003 (1) CTC 355
wherein the Division Bench has laid emphasis on the point that the purchaser
must always be ready and willing to perform his part of the contract.
13. On such arguments, the learned counsel would seek to
allow the appeal setting aside the judgment and decree passed by the first
appellate Court further restoring the trial Court’s judgment.
14. On the part of the learned counsel appearing on behalf of
the first respondent/plaintiff, he would dwell on facts without bringing forth
any new fact or circumstance or law and hence it would be only a time
consuming factor to repeat the arguments of the learned counsel for the first
respondent/plaintiff.
15. In consideration of the facts pleaded, having regard to
the materials placed on record and upon hearing the learned counsel for both,
what comes to be known is that it is a suit for specific performance and for
delivery of possession of the suit properties and the case of the plaintiff is
that under Ex.A.1 agreement, the first defendant agreed to sell the suit
property in his favour for a sale consideration of Rs.5,000/= and on receipt
of an advance amount of Rs.2,000/= further agreeing to execute the sale deed
in favour of the first respondent/plaintiff within a period of ten months from
the date of Ex.A.1 and in fact even in the grounds of second appeal, the
appellant himself has averred that though initially the plaintiff has not
pleaded his readiness and willingness to perform his part of contract, when he
realised during the pendency of the suit, he effected necessary amendments
into the plaint to the said effect and therefore the question of not pleading
the readiness and willingness on the part of the plaintiff does not arise at
all. Moreover, Courts have held, particularly the Apex Court in the judgment
cited on the part of the appellant himself, that even in the absence of any
specific pleading to that effect, in exceptional cases, the intentment of the
party being ready and willing to perform, would be inferred on a careful
perusal of the pleadings and therefore so far as the case in hand is
concerned, this Court is of the view that the plaintiff has not committed
default in his readiness and willingness to perform his part of the contract
regarding Ex.A.1 agreement.
16. Further, it is relevant to point out here that though the
law is that time is the essence of the contract, the Courts have held
uniformly that time is not the essence of the contract so far as the contracts
regarding immovable properties are concerned and therefore the plaintiff
cannot be said to have committed the fault of not being ready or willing to
perform his part of the contract regarding the time taken by him in the case.
17. Even the trial Court, which has found that Ex.A.1
document is a genuine agreement entered into, has concluded holding that the
first respondent/plaintiff was not ready and willing to perform his part of
the contract and has dismissed the suit. However, the first appellate Court,
on valid and tangible reasons assigned, would find that the plaintiff was not
slack in his readiness or willingness to perform his part of the contract as a
result of which ultimate decision has been at on the part of the first
appellate Court not only to allow the appeal preferred by the plaintiff but
also to decree the suit as prayed for.
18. In answering the substantial questions of law, so far as
the first and second substantial questions of law are concerned, they have
been framed taking it for granted that on the part of the plaintiff, the
readiness and willingness to perform his part of the contract has not been
pleaded and while so, the first appellate Court has erroneously decreed the
suit, both of which are not correct. As already brought forth, it is glaring
from the grounds of appeal that the plaint has been amended to the effect of
pleading the plaintiff’s readiness and willingness and hence the question that
`in the absence of pleading’ does not arise at all. Moreover, the lower
appellate Court only after coming to know that factually the readiness and
willingness on the part of the plaintiff coming to be established, based on
such foundation, has validly decreed the suit allowing the appeal, in which
event, it cannot be held that the lower appellate Court has committed any
illegality in its decision and hence these substantial questions of law have
to be decided in favour of the respondent and against the appellant.
19. The third substantial question of law is concerned with
considering the pleadings and evidence. The lower appellate Court has clearly
considered the pleadings and the evidence as it comes to be seen on perusal of
the judgment of the lower appellate Court and since the decision has been
factually arrived at in due consideration of the pleadings and evidence, it
can never be held that the judgment would become vitiated in law and therefore
even under this substantial question of law, the appellant does not score any
point and the same is decided only in the negative.
20. This Court is in perfect agreement not only with the
decision arrived at by the first appellate Court in this case but also the
manner in which the same has been arrived at and therefore the interference of
this Court sought to be made into the well considered and merited judgment of
the first appellate Court is neither necessary nor warranted in the
circumstances of the case and hence the following judgment:
In result,
(i)the above second appeal is without merit and the same is dismissed.
(ii)The judgment and decree dated 30.9.1991 rendered in A.S.No.35 of 1990 by
the Court of I Additional Subordinate Judge, Coimbatore thereby setting aside
the judgment and decree dated 10.8.1989 rendered in O.S.No.878 of 1979 by the
Court of I Additional District Munsif, Coimbatore is hereby confirmed.
However, in the circumstances of the case, there shall be no
order as to costs.
Index: Yes
Internet: Yes
Rao
To
1. The I Additional
Subordinate Judge, Coimbatore
2. The I Additional District Munsif,
Coimbatore