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Ganesh Lal v/s Narain & Another

    Civil Second Appeal No. 33 of 1981

    Decided On, 25 April 2011

    At, High Court of Rajasthan

    By, THE HONOURABLE DR. JUSTICE VINEET KOTHARI

    For the Plaintiff: S.L. Jain, Advocate. For the Defendants: N.K Vyas, Advocate.



Judgment Text

Vineet Kothari, J.

1. This second appeal under Section 100 of Civil Procedure Code has been filed by plaintiff, who lost concurrently before the two Courts below in the suit for specific performance filed by him against the defendants in respect of an agreement to sell agriculture land for a consideration of Rs. 2500/- against which the plaintiff claims to have paid 7 1000/- as advance.

2. Learned trial Court rejecting the suit by the judgment and decree dated 22.8.1979, inter alia, deciding the issue of readiness and willingness against the plaintiff and discussing the evidence of his brother Bhanwar Lal and mother, noticed that the plaintiff himself had refused to purchase the agriculture land in question from the defendants and, therefore, finding with the statement of plaintiff himself against the pleadings, the learned trial Court rejected the suit.

3. The first appeal filed by the plaintiff also failed vide order dat

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ed 18.8.1980 passed by the learned Additional Civil judge, Udaipur and while reversing the finding of the learned trial Court on the time being the essence of the agreement in 'question and concurring with the learned trial Court against the plaintiff that he had readiness and willingness to perform his part of the contract, the appeal of the plaintiff also came to be dismissed.

4. While admitting the present second appeal of the plaintiff, this Court had formulated the two substantial questions of law vide order dated 5.2.1981. The questions are reproduced as under :

"(1) Whether the first appellate Court was right in holding that the plaintiff did not express his readiness and willingness to perform his part of the contract?

(2) Whether a notice was necessary to be given by the vendor before selling the property to a third party, when time was not essence of the contract?

5. The present second appeal has come up for hearing after long lapse of 29 years and, therefore, the matter was taken up for urgent hearing and refusing the request of any further adjournment, the learned counsels were asked to argue the matter and produce the case law in support of their arguments. Accordingly, the matter has been argued and certain judgments have been cited by both the learned counsels.

6. Mr. S.L. Jain appearing for the plaintiff-appellant urged that as against the advance of Rs. 1,000/- given by the plaintiff for the consideration of Rs. 2500/-, agreed for the transfer of two bighas and four biswas of land in Moja Veerdholia, Tehsil Mavli of Khasra Nos. 864 and 865 to plaintiff at advance of Rs. 1000/- under agreement Ex.1 and Rs. 400/- were due from the defendants No. 1 and 2 to the plaintiff and thus, after adjustment of the said sum of Rs. 400/- more than half of the consideration was paid by the plaintiff and the plaintiff was always ready and willing to pay the balance amount of consideration and since the defendants failed to execute the sale-deed in favour of the plaintiff, therefore, the present suit was required to be filed.

7. Relying upon the following judgments in support of his contentions, the learned counsel for the appellant-plaintiff submitted that even after lapse of long period, the decree of specific performance deserves to be granted in favour of the plaintiff and the Court below erred in rejecting such suit of the plaintiff. Learned counsel for the appellant-plaintiff relied upon decision of Hon'ble Supreme Court in Ramesh Chandra Chandlok v. Chuni Lal Sabharwal (dead), reported in AIR 1971 SC 1238 and submitted that the readiness and willingness cannot be treated as a strait-jacket formula and these have been determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned and the discretion to grant specific relief must be exercised in accordance with found and reasonable judicial principles.

8. Referring to para 18 of the decision of Mysore High Court in Devendra Basappa Doddannavar v. Smt. Sonubai Tujansa Kosandal, reported in AIR 1971 Mysore 217, the learned counsel for the plaintiff-appellant also submitted that where the specific performance for transfer of property is not granted damages ought to have been awarded in favour of the plaintiff by the learned trial Court.

9. Lastly, learned counsel for the appellant relied upon the decision of Hon'ble Supreme Court in Smt. Indira Kaur v. Shri Sheo Lal Kapoor, reported in AIR 1988 SC 1074 with respect to his submissions on the ground of readiness and willingness.

10. On the other hand, Mr. N.K. Vyas, learned counsel for the defendant- respondents relied upon the following judgments in support of his contentions :

(i) Manohar Lal v. Smt. Rajeshwari Devi & Anr., AIR 1977 Allahabad 36;

(ii) Uda Ram v. Pyare Lal, 2003 (1) WLC (Raj.) 687, and

(iii) Veerayee Ammal v. Seeni Ammal, (2002) 1 SCC 134.

11. In Manohar Lal v. Smt. Rajeshwari Devi & Anr. (supra), the Single Bench of Allahabad High Court held that where there is no specific pleading in the suit that the plaintiff was ready and willing to perform his part of the contract, the relief of specific performance could not be granted.

12. Similarly in Uda Ram v. Pyare Lal (supra), a Co-ordinate Bench of this Court delineated the scope of Section 100 of Civil Procedure Code held that the concurrent finding of fact could not be interfered in second appeal.

13. In Veerayee Ammal v. Seeni Ammal (supra), the Hon'ble Apex Court held that person seeking specific enforcement of agreement for sale of immovable property, must approach the Court within reasonable time even if time if not the essence of the contract and as far as scope of Section 100 of Civil Procedure Code for second appeal is concerned, the Apex Court held that the High Court cannot assume jurisdiction to interfere in second appeal upon re-appreciation of the evidence just because another view is possible on appreciation of such evidence. On the strength of these judgments, learned counsel for the respondent-defendants Mr. N.K. Vyas submitted that in fact no substantial question of law arose in the present second appeal and the findings of the Courts below about the plaintiff not having readiness and willingness to perform his part of the contract are findings of acts and no interference in the present second appeal is called for by this Court. Even otherwise, he submitted that the relief of specific performance is a discretionary relief, which after such a long lapse of time cannot be granted in favour of the plaintiff specially when two Courts below have dismissed the suit of the plaintiff returning the cogent finding of facts against the plaintiff.

14. I have heard the learned counsels at length and perused the record of the case and judgments cited at the bar.

15. It is well settled that the relief of specific performance is a discretionary relief as per Section 20 of the Specific Relief Act.

16. In the present case, two Courts below have concurrently held that the plaintiff was not ready and willing to perform his part of contract and as per the evidence discussed by both the Courts below, he himself had shown his unwillingness to purchase the agriculture land in question. Besides paying 21000/- as advance, the adjustment of Rs. 400/-, which was given as loan to the defendants was never shown to have been adjusted against the consideration for this agreement to sell. The findings of fact with respect to readiness and willingness of the plaintiff or rather absence of the same are findings of fact, which in fact did not give rise for any substantial question of law in the present second appeal. Therefore, question No. 1 as framed by this Court is required to be answered against the plaintiff and the Courts below were justified in returning the findings of fact against the plaintiff on the.basis of evidence before them that the plaintiff did not have readiness and willingness to perform his part of contract.

17. As far as second question is concerned, this is also required to be answered against the plaintiff because no such notice by vendor to the vendee- plaintiff before his selling property to third party is required because the learned First Appellate Court, on the basis of Ex.I - agreement to sell, has clearly held and rightly so that time was essence of the contract because the sale-deed in question was required to be executed before a particular date. The plaintiff having failed to perform his part of the contract prior to the said cut off date and in absence of readiness and willingness to do so, the requirement to give notice by the vendor before sale of property in question to third party cannot be fastened upon the vendor. Therefore, the second question is also required to be answered against the plaintiff-appellant and it is so answered.

18. In the final analysis also, this Court is of the opinion that the relief for specific performance being a discretionary relief and that having been refused by the Courts below concurrently after a long lapse of period of 29 years, granting such specific performance is bound to create serious complications for bonafide purchasers of the property in question. Therefore, the refusal to such relief by the Courts below is not required to be interfered with by this Court at this stage in present second appeal of plaintiff.

19. Consequently, this second appeal of the plaintiff-appellant is found to be devoid of merit and the same is accordingly dismissed. No order as to costs.

Appeal dismissed.
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