{"id":29782,"date":"2003-06-27T00:00:00","date_gmt":"2003-06-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kaliappan-died-vs-venkatachalam-on-27-june-2003"},"modified":"2016-02-19T18:17:18","modified_gmt":"2016-02-19T12:47:18","slug":"kaliappan-died-vs-venkatachalam-on-27-june-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kaliappan-died-vs-venkatachalam-on-27-june-2003","title":{"rendered":"Kaliappan (Died) vs Venkatachalam on 27 June, 2003"},"content":{"rendered":"
Madras High Court<\/div>\n
Kaliappan (Died) vs Venkatachalam on 27 June, 2003<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 27\/06\/2003\n\nCORAM\n\nTHE HONOURABLE MR.JUSTICE V.KANAGARAJ\n\nSECOND APPEAL NO.1711 OF 1991\n\n1.Kaliappan (died)\n2.K.Natarajan (died)\n3.N.Ananthi\n4.N.Kapila\n5.N.Aditya (Minor) rep.by\n  her mother & natural guardian\n  third appellant                                       ... Appellants\n\n(Second appellant brought on record\nas L.R. of the deceased sole appellant\nby order of the Court dated 16.7.2002\nmade in C.M.P.No.17851 of 2001.)\n\n(Appellants 3 to 5 are brought on\nrecord as L.Rs. of the deceased\nsecond appellant as per the order\nof the Court dated 4.4.2003\nmade in C.M.P.No.4628 of 2003)\n\n-Vs-\n\n1.Venkatachalam\n2.Chinnammal                                            ... Respondents\n\n        Second Appeal preferred under Section 100 C.P.C.  for  the  relief  as\nstated therein.\n\nFor appellants :  Mr.S.Duraisamy\n\n^For R.1                :  Mr.K.Mohanram\nFor R.2         :  No Appearance\n\n\n:JUDGMENT\n<\/pre>\n
                The  above  second appeal is directed against the judgment and
\ndecree dated 30.9.1991 rendered in  A.S.No.35  of  1990  by  the  Court  of  I
\nAdditional  Subordinate  Judge,  Coimbatore thereby setting aside the judgment
\nand decree dated 10.8.1989 rendered in O.S.No.878 of 1979 by the  Court  of  I
\nAdditional District Munsif, Coimbatore.\n<\/p>\n
                2.  The deceased first appellant is the first defendant in the
\nsuit.  The first respondent herein is the plaintiff and the second respondent,
\nwho  is none other than the wife of the deceased first appellant is the second
\ndefendant in the suit.\n<\/p>\n
                3.  For the sake of convenience and for  easy  reference,  the
\nparties are referred to as they are arrayed in the suit.\n<\/p>\n
                4.   The  suit  was originally filed only against the deceased
\nfirst appellant herein for specific performance of the agreement dated  29.9.1
\n978 executed by him in favour of the plaintiff further directing the defendant
\nto  execute  the sale deed in favour of the plaintiff, failing which the Court
\nto execute the sale deed regarding  the  suit  properties  in  favour  of  the
\nplaintiff  and  consequently direct the defendant to deliver possession of the
\nproperties to the plaintiff and for costs.\n<\/p>\n
                5.  The case of  the  plaintiff  is  that  the  suit  property
\nabsolutely  belongs  to  the  first  defendant;  that  on 20.9.1978, the first
\ndefendant executed an agreement in favour of the plaintiff to  sell  the  same
\nfor a sum of Rs.5,000\/= and on the same date, a sum of Rs.2,000\/= was received
\nby  the  first  defendant  as  advance;  that  as per the sale deed, the first
\ndefendant has to execute the sale deed in favour of the plaintiff in a  period
\nof  ten  months,  after  receiving the balance sale consideration; that as the
\nsuit property is only a vacant site, after the agreement, the plaintiff  spent
\nabout  Rs.2,000\/=  to level the site and also to put necessary fence; that now
\nsince he is having sufficient funds to pay the balance sale consideration, the
\nplaintiff approached the first defendant and requested him to execute the sale
\ndeed, but the defendant set-up his wife, Chellammal, to issue a notice stating
\nthat she has got right over the properties and that the properties should  not
\nbe  sold  for which the plaintiff sent a reply; that the wife of the defendant
\nis living with him and she is also aware of  the  agreement  executed  by  the
\ndefendant;  that  after issuance of the said notice, even though the plaintiff
\napproached the defendant and requested him  to  execute  the  sale  deed,  the
\ndefendant  began  to  put up a construction in the said site and therefore, on
\n2.5.1979, the plaintiff lodged a complaint with the Peelamedu Police and  when
\nthe  police  enquired  both  the  plaintiff  and  the defendant, the defendant
\nreplied that he is not willing to execute the sale deed and therefore,  Police
\ndirected both parties to seek remedies before a Court of law; that the wife of
\nthe defendant claims that the sale in favour of the defendant is a benami sale
\nand hence the suit.\n<\/p>\n
                6.   The  first  defendant  filed  a written statement thereby
\ndenying all the allegations of the plaint and further submitting that no doubt
\nthere was an agreement, but under that agreement,  the  price  stipulated  was
\nRs.8,000\/= and the agreement mentioned in the plaint as one providing for sale
\nof  the  property  for Rs.5,000\/= is false; that the property measures 4 cents
\nand 148 square feet and the price of Rs.5,000\/= mentioned in the plaint is far
\ntoo low; that the price agreed upon and mentioned in the written agreement was
\nRs.8,000\/= and not Rs.5,00 0\/= and the suit has  been  filed  obviously  on  a
\nfalse  agreement;  that  the  plaintiff  never  approached  this defendant for
\nexecuting the sale deed; that the plaintiff was never ready to take  the  sale
\ndeed  by paying money as provided for in the agreement in which Rs.8,000\/= was
\nmentioned as the price; that the plaintiff has filed the suit suppressing  the
\ntrue  written  agreement  and  even  as  per  the  true written agreement, the
\nplaintiff was never ready to perform  his  part  of  the  contract;  that  the
\nplaintiff  did  not  show the agreement to the police even; that the defendant
\nsaid that he would execute the sale deed if the plaintiff paid the balance  of
\nRs.6,000\/=,  but since the plaintiff was not agreed to the said proposal, this
\ndefendant replied that she would not execute the  sale  deed  after  receiving
\nRs.3,000\/= offered  by  the  plaintiff.   On such grounds, the first defendant
\nwould pray to dismiss the suit with costs.\n<\/p>\n
                7.  The first  defendant  also  filed  an  additional  written
\nstatement  thereby  denying  the execution of the document dated 20.9.1978 and
\nfurther submitting that the plaintiff created the said document with the  help
\nof his friends and relatives with a view to make huge profits wrongfully; that
\neven  at  the  time  of  the alleged agreement, sites in the vicinity with the
\nsimilar advantages were sold at Rs.5,000\/= per cent and later on,  the  prices
\nhave  shot-up  and  now one cent is sold in the vicinity at Rs.10,000\/= ; that
\nthe property is situate just opposite to Nava  India  and  in  the  industrial
\nlocality  and  hence  one cent of land is easily wroth Rs.10,000\/= at present;
\nthat the plaintiff has not come before the Court with clean  hands;  that  his
\nwife is still earning in the Mills and the suit property was purchased by both
\nthe  defendant and his wife for a sum of rs.4,305\/= and the sale consideration
\nwas paid by his wife from out of her savings from the monthly wages; that  the
\nproperty  was purchased in the name of this defendant since he assured that he
\nwould not sell or squander; that the circumstances under  which  the  property
\nwas  purchased  were  well  known  to the plaintiff and with an evil design to
\nclutch the property an agreement of sale is fabricated by the plaintiff;  that
\nthe  plaintiff  was not given possession of the suit site; that the defendant,
\nfrom the date of purchase of the property, is in possession of the same  along
\nwith his wife; that the value given is ridiculously low and the value ought to
\nhave  been  Rs.40,000\/=;  that the wife of this defendant is a necessary party
\nand the suit must fail for non-joinder of necessary parties.  On such grounds,
\nthis defendant would pray to dismiss the suit with costs.\n<\/p>\n
                8.  Since the defendant has taken the stand that the  suit  is
\nbad for non-joinder of his wife, the plaintiff filed a petition in I.A.No.77 8
\nof  1981  to  implead the wife of the defendant as the second defendant in the
\nsuit and on the same having been allowed by the trial Court, the wife  of  the
\ndefendant  was  brought on record as the second defendant and she also filed a
\nwritten statement thereby submitting that the suit property  is  her  absolute
\nproperty; that she is working in Varadharaja Mills for the last about 25 years
\nand has purchased the same with the savings earned in her income from the mill
\nand  from  her  other  properties; that the suit property is in her possession
\nfrom the date of its purchase; that the first defendant has no manner of right
\nor interest in the property; that  this  defendant’s  son  Natarajan  is  also
\nclaiming  a  share in the property and he has also filed a suit for partition;
\nthat the first defendant is in the habit of quarrelling  with  this  defendant
\nand  used  to live away from the family for months and taking advantage of the
\nfirst defendant’s weakness and squandering habit, the  plaintiff  fraudulently
\nbrought  into existence the suit document with the help of his close relatives
\nVeluswamy and Ramaswamy by means of forgery; that the first defendant did  not
\nexecute the sale agreement; that the alleged agreement is void ab initio; that
\nin a suit for specific performance, the plaintiff ought to have clearly stated
\nthat  he has been ever ready and willing to purchase from the inception of the
\ndocument and this gross omission discloses that everything has  been  done  in
\nhaste and under suspicious and fraudulent circumstances.  On such allegations,
\nthis defendant would pray to dismiss the suit with costs.\n<\/p>\n
                9.   Based  on the above pleadings by parties, the trial Court
\nwould frame the following issues for determination:\n<\/p>\n
1.Whether the plaintiff is entitled to the specific performance  of  agreement
\ndated 20.9.1978?\n<\/p>\n
2.Whether the plaintiff is entitled to delivery of possession as prayed for?\n<\/p>\n
3.To what relief?\n<\/p>\n
Thereupon,  the  trial  Court  would  conduct  a  thorough  trial  wherein the
\nplaintiff besides examining himself as P.W.1 would  also  examine  three  more
\nwitnesses  as  P.Ws.2  to 4 for oral evidence and would mark four documents as
\nExs.A.1 to A.4 for documentary evidence, Ex.A.1 dated 20.9.1978  is  the  sale
\nagreement  alleged  to have been entered into in between the plaintiff and the
\nfirst defendant, Ex.A.2 dated 28.4.1979 is the lawyer’s notice issued  by  the
\nsecond  defendant  to  the  plaintiff  and  the  first defendant; Ex.A.3 dated
\n3.5.1979 is the copy of the reply notice sent by the plaintiff’s  advocate  to
\nthe  second  defendant’s advocate and Ex.A.4 dated 2.5.1979 is the notice sent
\nby the police to the plaintiff and the first defendant.  On  the  other  hand,
\neven  though no documentary evidence was submitted on behalf of the defendant,
\nthe defendants would examine themselves as D.Ws.1 and 2 respectively.\n<\/p>\n
                10.  The trial Court, in consideration of the evidence  placed
\non record and having found the plaintiff not ready and willing to get the sale
\ndeed executed,  has  ultimately  dismissed the suit.  Aggrieved, the plaintiff
\npreferred an appeal in A.S.No.35 of 1990 before  the  Court  of  I  Additional
\nSubordinate  Judge,  Coimbatore  and  the  said  Court, having appreciated the
\nevidence placed on record, would ultimately decree  the  suit.    It  is  only
\nagainst  the  said judgment and decree of the first appellate Court, the first
\ndefendant in the suit has come forward to prefer the above  second  appeal  on
\ngrounds  such  as (i) that the first appellate Court failed to appreciate that
\nin view of Section 1 6(c) of the Specific Relief Act, it is mandatory for  the
\nplaintiff  to  allege  and  prove  his continuous readiness and willingness to
\nperform his part of the agreement from the date of the contract; (ii) that the
\nfirst appellate Court failed to appreciate that the  plaintiff  has  not  even
\npleaded  in the plaint that he is reedy and willing to perform his part of the
\ncontract and in the absence of pleading, the  plaintiff  cannot  even  let  in
\nevidence  and  the  plaintiff  realizing  his omission to plead in the plaint,
\nfiled a petition for amendment to insert the plea of readiness and willingness
\nto perform his part of  the  contract  and  the  same  was  dismissed  by  the
\nappellate  Court and (iii) that the first appellate Court after dismissing the
\nsaid petition for amendment, committed a  grave  illegality  in  stating  that
\nSection 16(c)  of  the Specific Relief Act has been complied with.  This Court
\nadmitted  the  above  second  appeal  for  determination  of   the   following
\nsubstantial questions of law:\n<\/p>\n
1.Whether or not the first appellate Court committed a grave illegality in not
\ndismissing  the  suit in the absence of any averment in the plaint that he was
\nready and willing to perform his part of the contract?\n<\/p>\n
2.Whether or not the absence of an averment in the plaint that  the  plaintiff
\nwas  ready  and willing to perform his part of the contract amounts to failure
\nto disclose a cause of action in regard to the relief for specific performance
\nand as such the suit is liable to be dismissed?\n<\/p>\n
3.Whether or not the finding of the first  appellate  Court  contrary  to  the
\nfinding  of  the  trial  Court  is not vitiated by its failure to consider the
\npleading and the evidence?\n<\/p>\n
                11.  During arguments, the learned counsel appearing on behalf
\nof the appellants besides bringing forth the facts of the case as  pleaded  on
\nthe  part  of the appellant and the respondent as well, the evidence placed on
\nrecord and the decisions arrived at by the courts below, would lament  against
\nthe  first  appellate  Court  having  not given credence to the sentiments and
\nlegality of the trial Court in arriving at its conclusion  to  hold  that  the
\nagreement  was genuine but at the same time dismissing the suit on ground that
\nsince  it  was  a  mandatory   obligation   on   the   part   of   the   first
\nrespondent\/plaintiff  to  be ready and willing to perform his part of contract
\nthus giving effect to Section 16(c) of the  Specific  Relief  Act.    At  this
\njuncture,  the  learned  counsel  would cite a judgment of the Honourable Apex
\nCourt rendered in MAJUNATH ANANDAPPA urf SHIVAPPA HANASI vs.    TAMMANASA  AND
\nOTHERS<\/a> reported in 2003 (2) CTC 109 wherein it has been held:\n<\/p>\n
“Pleading  regarding readiness and willingness is mandatory and that the Court
\nshould cull out readiness and willingness from reading all averments in plaint
\ncoupled with materials brought on record  during  trial  only  in  exceptional
\ncases.”\n<\/p>\n
                12.   The  learned  counsel for the appellants would also cite
\nyet another  judgment  of  the  Division  Bench  of  this  Court  rendered  in
\nARUNACHALA MUDALIAR  vs.  JAYALAKSHMI AND ANOTHER<\/a> reported in 2003 (1) CTC 355
\nwherein the Division Bench has laid emphasis on the point that  the  purchaser
\nmust always be ready and willing to perform his part of the contract.\n<\/p>\n
                13.   On  such  arguments,  the  learned counsel would seek to
\nallow the appeal setting aside the judgment and decree  passed  by  the  first
\nappellate Court further restoring the trial Court’s judgment.\n<\/p>\n
                14.  On the part of the learned counsel appearing on behalf of
\nthe first respondent\/plaintiff, he would dwell on facts without bringing forth
\nany  new  fact  or  circumstance  or  law  and  hence  it would be only a time
\nconsuming factor to repeat the arguments of the learned counsel for the  first
\nrespondent\/plaintiff.\n<\/p>\n
                15.   In  consideration of the facts pleaded, having regard to
\nthe materials placed on record and upon hearing the learned counsel for  both,
\nwhat  comes  to be known is that it is a suit for specific performance and for
\ndelivery of possession of the suit properties and the case of the plaintiff is
\nthat under Ex.A.1 agreement, the first  defendant  agreed  to  sell  the  suit
\nproperty  in  his favour for a sale consideration of Rs.5,000\/= and on receipt
\nof an advance amount of Rs.2,000\/= further agreeing to execute the  sale  deed
\nin favour of the first respondent\/plaintiff within a period of ten months from
\nthe  date  of  Ex.A.1  and  in  fact even in the grounds of second appeal, the
\nappellant himself has averred that though  initially  the  plaintiff  has  not
\npleaded his readiness and willingness to perform his part of contract, when he
\nrealised  during  the  pendency  of the suit, he effected necessary amendments
\ninto the plaint to the said effect and therefore the question of not  pleading
\nthe  readiness  and willingness on the part of the plaintiff does not arise at
\nall.  Moreover, Courts have held, particularly the Apex Court in the  judgment
\ncited  on  the  part of the appellant himself, that even in the absence of any
\nspecific pleading to that effect, in exceptional cases, the intentment of  the
\nparty  being  ready  and  willing  to  perform, would be inferred on a careful
\nperusal of the pleadings  and  therefore  so  far  as  the  case  in  hand  is
\nconcerned,  this  Court  is  of  the view that the plaintiff has not committed
\ndefault in his readiness and willingness to perform his part of  the  contract
\nregarding Ex.A.1 agreement.\n<\/p>\n
                16.  Further, it is relevant to point out here that though the
\nlaw  is  that  time  is  the  essence  of  the  contract, the Courts have held
\nuniformly that time is not the essence of the contract so far as the contracts
\nregarding immovable properties  are  concerned  and  therefore  the  plaintiff
\ncannot  be  said  to have committed the fault of not being ready or willing to
\nperform his part of the contract regarding the time taken by him in the case.\n<\/p>\n
                17.  Even  the  trial  Court,  which  has  found  that  Ex.A.1
\ndocument  is  a genuine agreement entered into, has concluded holding that the
\nfirst respondent\/plaintiff was not ready and willing to perform  his  part  of
\nthe contract  and has dismissed the suit.  However, the first appellate Court,
\non valid and tangible reasons assigned, would find that the plaintiff was  not
\nslack in his readiness or willingness to perform his part of the contract as a
\nresult  of  which  ultimate  decision  has  been  at  on the part of the first
\nappellate Court not only to allow the appeal preferred by  the  plaintiff  but
\nalso to decree the suit as prayed for.\n<\/p>\n
                18.   In answering the substantial questions of law, so far as
\nthe first and second substantial questions of law  are  concerned,  they  have
\nbeen  framed  taking  it  for  granted  that on the part of the plaintiff, the
\nreadiness and willingness to perform his part of the  contract  has  not  been
\npleaded  and  while  so, the first appellate Court has erroneously decreed the
\nsuit, both of which are not correct.  As already brought forth, it is  glaring
\nfrom  the  grounds of appeal that the plaint has been amended to the effect of
\npleading the plaintiff’s readiness and willingness and hence the question that
\n`in the absence of pleading’ does not arise  at  all.    Moreover,  the  lower
\nappellate  Court  only  after  coming to know that factually the readiness and
\nwillingness on the part of the plaintiff coming to be  established,  based  on
\nsuch  foundation,  has  validly decreed the suit allowing the appeal, in which
\nevent, it cannot be held that the lower  appellate  Court  has  committed  any
\nillegality  in  its decision and hence these substantial questions of law have
\nto be decided in favour of the respondent and against the appellant.\n<\/p>\n
                19.  The third substantial question of law is  concerned  with
\nconsidering the pleadings and evidence.  The lower appellate Court has clearly
\nconsidered the pleadings and the evidence as it comes to be seen on perusal of
\nthe  judgment  of  the  lower  appellate Court and since the decision has been
\nfactually arrived at in due consideration of the pleadings  and  evidence,  it
\ncan never be held that the judgment would become vitiated in law and therefore
\neven  under this substantial question of law, the appellant does not score any
\npoint and the same is decided only in the negative.\n<\/p>\n
                20.  This Court is in perfect  agreement  not  only  with  the
\ndecision  arrived  at  by  the first appellate Court in this case but also the
\nmanner in which the same has been arrived at and therefore the interference of
\nthis Court sought to be made into the well considered and merited judgment  of
\nthe   first  appellate  Court  is  neither  necessary  nor  warranted  in  the
\ncircumstances of the case and hence the following judgment:\n<\/p>\n
In result,\n<\/p>\n
(i)the above second appeal is without merit and the same is dismissed.\n<\/p>\n
(ii)The judgment and decree dated 30.9.1991 rendered in A.S.No.35 of  1990  by
\nthe  Court of I Additional Subordinate Judge, Coimbatore thereby setting aside
\nthe judgment and decree dated 10.8.1989 rendered in O.S.No.878 of 1979 by  the
\nCourt of I Additional District Munsif, Coimbatore is hereby confirmed.\n<\/p>\n
                However,  in  the circumstances of the case, there shall be no
\norder as to costs.\n<\/p>\n
Index:  Yes
\nInternet:  Yes
\nRao
\nTo\n<\/p>\n
1.  The I Additional
\nSubordinate Judge, Coimbatore<\/p>\n
2.  The I Additional District Munsif,
\nCoimbatore<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Kaliappan (Died) vs Venkatachalam on 27 June, 2003 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-29782","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nKaliappan (Died) vs Venkatachalam on 27 June, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kaliappan-died-vs-venkatachalam-on-27-june-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kaliappan (Died) vs Venkatachalam on 27 June, 2003 - 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