JUDGMENT
Ajit J. Gunjal, J.
1. The plaintiff-respondent has filed a suit for enforcement of an agreement dated 07.04.1986. The learned Trial Judge decreed the suit and the same has been confirmed by the learned Appellate Judge. Hence, the second appeal.
2. During the course of this judgment, the parties would be referred to as per their ranking in the Trial Court.
3. The facts leading to filing of the second appeal can be summarised as follows:
It is the case of the plaintiff that the defendant is the absolute owner of the suit schedule property and he had agreed to sell the same for a sum of Rs. 25,000/-. The defendant agreed to sell the land on 07.04.1986 after receiving earnest money of Rs. 7,100/- and has executed a document. The said document IB dated 07.04.1986 and the said document was executed by the defendant in front of the witnesses. It is the case of the plaintiff that the balance amount of Rs. 17,900/- was required to be paid at the time of execution of the regular sale deed and the expenses were to be borne equally by both plaintiff and the defendant. Pursuant to the said agreement, the plaintiff was put in possession and he has grown potato and groundnut for the relevant agricultural year. It is also averred that the plaintiff is ready and willing to perform his part of the contract and the same was intimated to the defendant, calling upon him to execute the sale deed. But however, the defendant did not do so, but went on postponing the execution of the sale deed. In the circumstance, a notice was issued on 28.04.1989 calling upon the defendant to execute the said sale deed. Since there was no response, the plaintiff was constrained to enforce the said sale agreement.
4. The defendant entered appearance and has resisted the suit. The entire allegations in the plaint are denied. The defendant further has denied the sale transaction for an amount of Rs. 25,000/- and also receipt of Rs. 7,100/- as earnest money. He has denied the issuance of notice and plaintiff is ready and willing to perform his part of the contract. He would state that he is rich and is unmarried. Consequently, there is none who depends upon him and there was no family necessity to sell the suit property. The alternate contention is that the said agreement is stated to have been executed for security of loan and it was never intended to be acted upon. The suit is barred by tune and the plaintiff is not entitled for the relief sought for.
5. The learned Trial Judge on the basis of the pleadings has framed six issues. On the relevant issue the learned Trial Judge has recorded a finding that the said suit document is proved and defendant No. 1 agreed to sell the suit schedule property for a sum of Rs. 25,000/- and in turn he had received Rs. 7,100/- as earnest money. The learned Trial Judge has also recorded a finding that the plaintiff is ever ready and willing to perform his part of the contract. The learned Trial Judge has also recorded a finding that pursuant to the said agreement, the plaintiff was put in possession and as on the date of the suit he was in possession. The said Judgment and decree was assailed by the defendant by way of an appeal in R.A.No. 191/2004 (old No. R.A.No. 5/2000). The learned Appellate Judge having scrutinized the evidence both oral and documentary has confirmed the Judgment and decree of the Trial Court.
6. Mr. R.L. Patil, learned Counsel appearing for the defendant would submit that a specific contention was taken by the defendant that the suit was barred by time inasmuch as the suit document was executed on 07.04.1986 and the suit is filed on 19.09.1989 i.e., after a lapse of three years. The second contention urged is that the alleged notice stated to have been issued by the plaintiff was not at all served on the defendant. He would also submit that the Courts below have not considered Section 20 of the Specific Relief Act. According to him, a reading of the plaint averments as well as the evidence does not give an indication that the plaintiff was ready and willing at any point of time to perform his part of the contract. He would also submit that an application under Order 41 Rule 27 was filed before the learned Appellate Judge to produce additional evidence but however, the same was rejected. He would submit that if these contentions are cumulatively looked into, the plaintiff was not entitled for the relief, which he has sought.
7. In so far as the first contention regarding the suit is barred by limitation is concerned, it is to be noticed that the suit agreement is dated 07.04.1986 marked as Ex.P1 during the course of trial. It is also reflected in the suit agreement, as can be gathered from the findings recorded by the Courts below that the total consideration to be paid was Rs. 25,000/- out of which a sum of Rs. 7,100/- was received as advance. Apparently, a notice was issued on 28.04,1989 and the suit is filed on 19.09.1989. It is no doubt true that a specific contention is taken by the defendant that the said notice was not served on the defendant. But however, it is to be noticed that the limitation in relation to the Specific Relief Act is governed by Article 54 of the Limitation Act. Article 54 would read as under:
For specific performance of a contract, the period of limitation is three years and the date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that the performance is refused.
8. Apparently, it is to be noticed that in the case on hand, the notice was issued on 28.04.1989 and since there was no response from the defendant, it was presumed that the defendant has declined to come forward to perform his part of the contract. Even assuming from the date of notice i.e., 28.04.1989 till the suit filed by the plaintiff on 19.09.1989 is well within time. In so far as the notice is concerned, a copy of the notice is Ex.F2 and Ex.P3 is the postal cover with an endorsement “refused” and Ex.P4 is the original notice. There is a presumption under Section 114 of the Evidence Act in respect, of existence of certain facts. Apparently, notice issued to the defendant was returned with a postal endorsement as “refused”. The same postal cover is marked as Ex.P3. The said date of refusal can be treated as cause of action and can be treated as a date of refusal. Even if the said date of refusal is to be reckoned, the suit which was filed on 19.09.1989 is in time.
9. In so far as the contention regarding readiness and willingness on the part of the plaintiff to perform his part of the contract, it is to be noticed that a perusal of the Judgments would clearly disclose wherein the pleadings are summarised, it is clearly stated that the plaintiff was ready and willing to perform his part of the contract. That also has come in evidence of the plaintiff. In fact it is useful to refer to the observations made by the Court below white re-appreciating the said evidence.
It is further case of the plaintiff that defendant was to execute a regular sale deed as and when called upon by the plaintiff. The plaintiff was all along ready and willing to perform his part of contract. He was ready to pay balance amount of Rs. 17,900/- to take regular sale deed whereas, the defendant has avoided the same. In this regard, Plaintiff-P.W.1 has deposed in his evidence about his readiness and willing to perform his part of contract to get the regular sale deed by paying the balance consideration amount. The plaintiff has also produced the notice copy said to have been issued to the defendant, calling him to execute registered sale deed. It is stated that, defendant has refused the notice.
10. When the plaintiff has made a clear statement in the pleadings that he is ready and willing to perform his part of the contract that has been reiterated in the evidence, it cannot be said that he is not willing and ready to perform his part of the contract. It is no doubt true that the said agreement was executed on 07.04.1986 and the suit is filed on 19.09.1989, the fact that the suit is filed after three years after the execution of the agreement to sell, it cannot be inferred that the plaintiff was not ready and not willing to perform his part of the contract. What is requited to be looked into is the totality of the circumstances, where the plaintiff was ready and willing to perform, his part of the contract. When the specific pleadings are there, it cannot be said that the plaintiff was not ready and willing to perform his part of the contract. It is to be noticed that pursuant to the said agreement plaintiff was put in possession. That is the finding recorded by both the Courts below. In the circumstances, I am of the view that the plaintiff was ready and willing to perform his part of the contract.
11. In so far as the non-consideration of Section 20 of the Specific Relief Act, where the granting of decree for specific performance is a discretionary relief, is concerned, undoubtedly, even assuming that the agreement is proved, it is not necessary that the Court is bound to grant such a relief, merely because it is lawful to do so. But however, that such granting or declining to grant such relief cannot be arbitrary but will have to be sound and reasonable and guided by judicial principles. The provisions of Sub-section (2) of Section 20 would enumerate as to in what circumstances a decree for specific performance would be refused. But however, explanation (1) to Section 20 would also give an insight into the fact as to, what circumstances will not come in the way of the Court in granting a decree for specific performance.
12. Apparently, in the case on hand, it is to be noticed that the defendant has taken two different sets of defence. One is that there is a total denial of the execution of the document or in the alternate that it was a loan transaction and the circumstances warranted execution of the said agreement. Apparently, by a reading of the defence, which is summarised by the Courts below, there is no averment regarding inadequacy of consideration, that it is onerous or imprudent in its nature. Apparently, the Courts cannot in a vacuum examine whether discretionary relief can be denied under Section 20 of the Specific Relief Act There must be enough pleading and enough evidence to show that the defendant, who is trying to avoid the contract would fall under any of the circumstances enumerated under Sub-section (2) of Section 20 of the Specific Relief Act. Another factor which is required to be looked into while considering Section 20 of the specific relief Act is, that by refusing the decree for specific performance, where the plaintiff has done certain substantial acts or will suffer loss in consequence of the contract.
13. In the case on hand, it is to be noticed that both the Courts below have concurrently found that the plaintiff is in possession of the suit property pursuant to the agreement dated 07.04.1986. The plaintiff has also improved the land considerably and has grown potato and other crops. This would certainly attract Sub-Section (3) of Section 20 of the Specific Relief Act. It is also to be noticed that there is no specific defence taken by the defendant in the written statement that if a decree for specific performance is granted, undue hardship would be caused. This has been specifically observed by the Lower Appellate Court during the course of its judgment.
14. The last contention is that the Lower Appellate Court ought to have entertained the application which is filed under Order 41 Rule 27 of the Code of Civil Procedure for additional evidence. Apparently, the Lower Appellate Court has considered the said application and was of the opinion that those applications are not at all germane For proper disposal of the controversy in question, Apparently, what was sought to be produced before the Lower Appellate Court are the documents, which are in the nature of Land Revenue receipts to establish that he is in possession. The Lower Appellate Court was of the opinion that the said application cannot be entertained on two grounds. One is that there is no explanation forthcoming in the application as to why the said documents could not be produced in the Trial Court and assuming that they are directly taken on record as additional evidence, the said Land Revenue receipt will not help as they are after filing of the suit and another document, which is sought to be produced is a private document. In fact, the learned Appellate Judge has found that even assuming that the said application is allowed, it really does not advance the case of the defendant. In fact the Apex Court in the case of Wadi v. Amilal and Ors. reported in ILR 2003 KAR 4637 has observed that the application can be entertained only if the Courts feel that pronouncing a Judgment in the absence of such evidence would result in a defective decision and to pronounce an effective judgment admission of such evidence is necessary. Apparently, in the case on hand, the Appellate Court has opined that to pronounce the effective Judgment, these documents are not necessary. I am of the view that no different view can be taken by this Court.
15. Both the Courts below have concurrently found that the defendant has executed the said document and pursuant to thereof, the plaintiff was put in possession and the plaintiff was ready and willing to perform his part of the contract and the said concurrent findings are question of fact and cannot be interfered under Section 100 of the Code of Civil Procedure.
16. Since all the contentions urged by (sic) Mr. Patil fail, there is no merit in this appeal. No substantial question of law arises for consideration in this appeal.
Appeal stands dismissed.