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1998 DIGILAW 126 (KAR)

P. SRINWASAN v. NANJAMMA

1998-02-24

M.B.VISHWANATH

body1998
M. B. VISHWANATH, J. ( 1 ) THIS second appeal has been filed under Section 100 of the civil Procedure Code. The appellant (since deceased by L. Rs) is the defendant. First respondent is the first plaintiff and the second respondent (since deceased by L. Rs) is the second plaintiff. The plaintiffs are husband and wife. ( 2 ) THE plaintiffs (present respondents) filed the suit, Original Suit No. 232 of 1974 before the Additional II Munsiff, Bangalore, for specific performance of the agreement to reconvey the suit property bearing S. No. 108, situated in Nagaraja Layout, byappanahalli Village extension, K. R. Pura Hobli, Bangalore south Taluk, executed by the defendant (present appellant ). Ex. P-1 is the agreement to reconvey. ( 3 ) THE Trial Court decreed the suit. The defendant, aggrieved by the judgment and decree passed by the Trial Court, preferred appeal before the Civil Judge, Bangalore, in Regular Appeal No. 106 of 1978. ( 4 ) THE learned First Appellate Judge allowed the appeal and remanded the matter to the Trial Court. ( 5 ) THE Trial Court, after the remand, again decreed the suit ( 6 ) THE defendant preferred appeal in Regular Appeal No. 393 of 1980. The First Appellate Court allowed the appeal and dismissed the suit. ( 7 ) THE plaintiffs preferred Regular Second Appeal No. 276 of 1984 under Section 100 of the Civil Procedure Code before this court. This Court, at the admission stage, rejected the Regular second Appeal. ( 8 ) THE plaintiffs went to Supreme Court. The Supreme Court was pleased to set aside the judgments passed by this Court and the First Appellate Court at the admission stage and remanded the matter to the then First Appellate Judge (Principal City civil Judge, Bangalore) with a direction to restore to its file regular Appeal No. 393 of 1980. ( 9 ) THE learned First Appellate Judge, viz, the Principal City Civil Judge, by his judgment dated 27-6-1991 confirmed the decree of the Trial Court. He modified the decree by directing the plaintiffs to pay Rs. 13,000/- to the defendant. ( 10 ) FROM the facts and developments in the case, it is clear, the decree for specific performance to reconvey granted by the trial Court was confirmed by the First Appellate Court. He modified the decree by directing the plaintiffs to pay Rs. 13,000/- to the defendant. ( 10 ) FROM the facts and developments in the case, it is clear, the decree for specific performance to reconvey granted by the trial Court was confirmed by the First Appellate Court. ( 11 ) THUS there are concurrent findings regarding grant of decree in favour of the plaintiffs for specific performance. As I have already stated, the defendant has preferred the present second appeal under Section 100 of the Civil Procedure Code. ( 12 ) ARGUMENTS were heard on whether "the regular second Appeal should be admitted or not and whether it should be admitted on the ground that there is a substantial question of law. ( 13 ) IT is contended by the learned Counsel for the appellant-defendant that the First Appellate Judge has ignored the material evidence, viz, the evidence of the plaintiff (P. W. 1) nanjamma. The learned Counsel for the respondents-plaintiffs contended that the learned First Appellate Judge has appreciated the facts thoroughly and taking into consideration the circumstances of the case that the plaintiffs were poor coolies and vegetable vendors and that the defendant is a money lender, has correctly appreciated the evidence of P. W. 1. ( 14 ) IT is contended by the learned Counsel for the appellant-defendant that there is no evidence to show that the plaintiffs were at all times, from the date of the suit till the date of the decree, were ready and willing to perform their part of the contract and that they had not tendered the amount due under the agreement to reconvey, Ex. P-1. ( 15 ) IN this regard the learned Counsel for the appellant showed some discrepancies in the evidence of the first plaintiff p. W. 1. It should be remembered that P. W. 1 is a coolie and a vegetable vendor. The learned First Appellate Judge has rightly observed in Paragraph 16 of his judgment that the evidence should be considered as a whole along with the pleadings. The learned First Appellate Judge has clearly stated that the Court cannot pick one sentence here and another there in the evidence of P. W. 1 and decide the case. He has reminded himself that the plaintiffs are from the lower strata of the society. The learned First Appellate Judge has clearly stated that the Court cannot pick one sentence here and another there in the evidence of P. W. 1 and decide the case. He has reminded himself that the plaintiffs are from the lower strata of the society. The learned judge has put a question to himself: what was the intention of the plaintiffs in filing the suit, if they had no desire to repurchase the property? ( 16 ) THE learned First Appellate Judge has observed that the desire of the plaintiffs was to get back the property which they were forced to sell to the defendant due to financial constraints. The learned First Appellate Judge, after noticing the averment in Paragraph 16 of the plaint: "even now the plaintiffs are prepared to pay all such sums to which the defendant is in law entitled", and on the basis of the evidence, has come to the conclusion that the plaintiffs were always ready and willing to perform their part of the contract. He has, therefore, modified the decree directing the plaintiffs to pay or deposit Rs. 13,000/- payable to the defendant before taking the sale deed from the defendant in accordance with law. ( 17 ) THE conclusions reached by the Courts below are findings on fact. The conclusions are highly reasonable. They are neither illegal nor perverse. ( 18 ) THE Supreme Court has been pleased to lay down in ramanuja Naidu V. Kanniah Naidu and Another , that it is now well-settled that concurrent findings of fact of Trial Court and First Appellate Court cannot be interfered with by the High court in exercise of its jurisdiction under Section 100 of the Civil procedure Code. The Supreme Court has been pleased to observe that, "concurrent findings of the Courts below were findings of fact and were not open to challenge in second appeal". ( 19 ) I am of the opinion, no substantial question of law arises for decision by this Court in this appeal. ( 20 ) THE legal battle is between penurious Peter and prosperous Pal. The Courts below rightly refused to allow prosperous Pal to rob penurious Peter. The grant of decree for specific performance or otherwise is a discretionary relief. Both the Courts below have properly and correctly exercised their discretion in favour of the plaintiffs. That's that. This Court cannot substitute its discretion. The Courts below rightly refused to allow prosperous Pal to rob penurious Peter. The grant of decree for specific performance or otherwise is a discretionary relief. Both the Courts below have properly and correctly exercised their discretion in favour of the plaintiffs. That's that. This Court cannot substitute its discretion. ( 21 ) THE learned Counsel for the appellant-defendant showed some minor discrepancies in the case of the plaintiffs. The supreme Court has been pleased to deprecate the practice of some judges of the High Courts disposing of second appeals as if they were first appeals Deity Pattabhiramaswamy v S. Hanymayya and Others. ( 22 ) FOR the aforesaid reasons the regular second appeal is not admitted. It is rejected at the admission stage. --- *** --- .