Md. Khalid v. Hamida — 1999 DIGILAW 1206 (PAT)

Judgment M.Y.Eqbal, J. 1. This second appeal under section 100 of the Code of Civil Procedure at the instance of the plaintiff/appellant is directed against the judgment and decree dated 18.3.91 passed by 2nd Addl. District Judge, Gumla allowing Title Appeal No. 57/87 and setting aside the judgement and decree dated 25th July, 1987 passed by Subjudge, Gumla in Title suit no. 56/84. 2. The plaintiff/appellant instituted the aforementioned title suit no. 56/84 for a decree for specific performance of contract in respect of the properties mentioned in schedule A to the plaint (hereinafter referred to as the suit property) and for a direction to the defendant/respondent to execute the sale deed in favour of the plaintiff. Plaintiffs case, inter alia, was that the suit property belonged to the defendant who, in need of money, wanted to sell the same and for that he approached the plaintiff in 1981 and it was agreed between the parties to transfer the suit property on a consideration of Rs. 17,000/-. Plaintiffs further case was that in pursuance of the settlement two agreements were prepared on 22.10.81; one on the stamped paper and the other on a sada paper. The agreements were signed by the defendant and two witnesses. On the date of agreement a sum of Rs. 7500/- was advanced by the plaintiff to the defendant. Plaintiff further asserted that he was allowed to continue possession of the suit property in part performance of the contract as he was a tenant in the said property prior to that. The plaintiff pleaded that since the date of agreement he repeatedly requested the defendant to execute and register the sale deed but the defendant evaded the same on one pretext or the other and insisted him to pay the rent of the suit premises till registration is effected. However, the plaintiff regularly tendered rent but no rent receipt was granted. It is alleged that on 1.7.83 the defendant took a further sum of Rs. 3000/- and made an endorsement to that effect on the back of the agreement. In the month of April, 1984 he again took a further sum of Rs. 1200/- in two instalments which could not be endorsed on the agreement as by that time the same was misplaced. Thus, it is alleged, that the plaintiff has already paid a sum of Rs. 11,700/- out of Rs. In the month of April, 1984 he again took a further sum of Rs. 1200/- in two instalments which could not be endorsed on the agreement as by that time the same was misplaced. Thus, it is alleged, that the plaintiff has already paid a sum of Rs. 11,700/- out of Rs. 17,000/- to the defendant towards the consideration money. Lastly, it is pleaded that the plaintiff was and is always ready to perform his part of contract but the defendant always evaded the same on one pretext or other. Ultimately a pleaders notice was sent but even then the defendant did not register and execute the sale deed and hence the suit. 3. In the written statement, besides taking usual pleas, the defendant stated that his daughter Minat Ara had developed some heart trouble and for her treatment he had taken loan from the plaintiff ranging from Rs. 100 to 300 upto Rs, 4500/-. The plaintiff had obtained the defendants signature on a sada paper saying that when the money will be refunded, he would tear that. The money could not be returned. On 1.7.83 the defendant again took Rs. 3000/- for treatment of his daughter which was noted in the back of the sada paper. The defendant could not return that money as his said daughter died on 23.12.84. It is alleged that the plaintiff, taking advantage of the defendants signature on the sada paper converted the same into a stamped document which the defendant denied. He stated that he never desired to sell the suit property to the plaintiff nor there was any negotiation for sale of the same. It was alleged that the aforesaid two alleged agreements were never prepared for the sale of the suit property. The payment of Rs. 7500/- to the defendant by the plaintiff on 22.10.81 was also denied by the defendant. It was said that the plaintiff stopped payment of rent of the suit property in which he was a tenant from October, 1983. It is further alleged that the defendant determined the tenancy of the plaintiff and asked him to vacate the house and to pay the arrears of rent. When the house was not vacated the defendant brought title suit No. 14/84 in the court of Munsif, Gumla for eviction of the defendant on the ground of default and also personal necessity. It is further alleged that the defendant determined the tenancy of the plaintiff and asked him to vacate the house and to pay the arrears of rent. When the house was not vacated the defendant brought title suit No. 14/84 in the court of Munsif, Gumla for eviction of the defendant on the ground of default and also personal necessity. When the plaintiff knew about the said suit, he fabricated the documents, as aforesaid, and filed the instant suit for specific performance of contract. 4. The trial court framed as many as nine issues which are as follows: 1. Is the suit as framed maintainable? 2. Has the plaintiff got cause of action for the suit? 3. Is the suit barred by law of limitation, estoppel and acquiescence? 4. Is the suit undervalued and court fee paid insufficient? 5. Is the suit hit by the provisions of Specific Relief Act? 6. Is the deed of agreement legal, valid and for consideration? 7. Is the plaintiff entitled for a decree for specific performance of contract and is the defendant bound to execute the sale deed for schedule A property in favour of the plaintiff? 8. Is the plaintiff entitled to the decree as claimed? 9. To what other relief or reliefs, if any, is the plaintiff entitled to? 5. The trial court, after considering the evidences, both oral and documentary, as also the pleadings of the parties, decided all the issues in favour of the plaintiff and, accordingly, decreed the suit. 6. The defendant preferred title appeal No. 57/87 against the judgment and decree of the trial court. The appellate court allowed the appeal and set aside the judgment and decree of the trial court decreeing the suit in part only for recovery of Rs. 7500/- from the defendant. The appellate court recorded its own finding on the issues formulated by the trial court. While deciding issue nos. 6 and 7, the appellate court arrived at a finding that the deed of agreement (Ext.1) was not executed by the defendant/appellant and even if the same was executed, the same is not enforceable in law and hence this second appeal at the instance of the plaintiff/appellant. 7. While deciding issue nos. 6 and 7, the appellate court arrived at a finding that the deed of agreement (Ext.1) was not executed by the defendant/appellant and even if the same was executed, the same is not enforceable in law and hence this second appeal at the instance of the plaintiff/appellant. 7. This court while admitting the appeal for hearing on 22.1.92 formulated the following substantial questions of law: "(A) Whether in view of the fact that the defendant admitted his signature in Ext.1, the agreement, the onus was on him to prove that he had put his signature on a blank stamp paper. (b) Whether the court below was correct in holding that under section 20 of the Specific Relief Act, it was the discretion of the court to enforce specific performance of contract even if Ext. 1, the agreement was proved by the defendant?" 8. Mr. Debi Prasad, learned Sr. counsel appearing on behalf of the appellant assailed the impugned judgment and decree of the lower appellate court as being illegal, contrary to facts and evidence on record. Learned counsel firstly submitted that the court of appeal below has committed serious illegality in reversing the judgment and decree of the trial court without meeting the reasonings given by the trial court while recording findings of facts. Learned counsel submitted that the finding recorded by the appellate court on issue nos. 6 and 7 with regard to validity of the agreement is contrary to law inasmuch as the reasonings given therein are totally against the evidences particularly the admission made by the defendant about execution of the agreement. Learned counsel then submitted that the trial court discussed the entire evidence in detail while deciding issue about execution of the agreement but the lower appellate court has reversed the said finding on mis-appreciation of law and facts. Learned counsel further submitted that the lower appellate court has further committed error of law in refusing to exercise discretion in favour of the plaintiff under section 20 of the Specific Relief Act. In this connection learned counsel has relied upon a decision reported in AIR 1965 S.C. 1405 . 9. On the other hand, Mr. N.K. Prasad, learned Sr. Learned counsel further submitted that the lower appellate court has further committed error of law in refusing to exercise discretion in favour of the plaintiff under section 20 of the Specific Relief Act. In this connection learned counsel has relied upon a decision reported in AIR 1965 S.C. 1405 . 9. On the other hand, Mr. N.K. Prasad, learned Sr. counsel appearing on behalf of the respondent firstly submitted that the lower appellate court, after analysing the entire evidence on record, has come to a finding of facts that the agreement was not executed by the defendant and, therefore, this court is not supposed to interfere with the finding of facts in second appeal under section 100 of the Code of Civil Procedure. In this connection reliance was placed on a decision reported in 1999 S.C. 1104. Learned counsel further submitted that the trial court neither framed any issue nor recorded any finding with regard to readiness and willingness of the defendant in performing the contract since the date of agreement till passing of the judgement by the trial court. On the contrary, the lower appellate court has come to a finding of facts regarding absence of readiness and willingness on the part of the defendant to perform the contract and even no evidence was led regarding tender of the balance amount. Learned counsel, therefore, submitted that the lower appellate court rightly refused to pass a decree for specific performance of contract. In this connection learned counsel relied upon a decision reported in 1999 SC 2213. 10. From perusal of the trial court judgment it appears that the issues formulated by the trial court, as quoted hereinabove, do not relate to readiness and willingness in the performance of contract which was the mandatory requirement of law. The trial court has also not recorded any finding with regard to readiness and willingness and in the entire body of the judgment of the trial court there is nothing to show that the plaintiff either pleaded or proved tender of balance consideration amount after execution of the agreement till the date of institution of the suit and there is also nothing to show his readiness and willingness to perform his part of the contract. The lower appellate court, after re-appreciating the entire evidence has, therefore, come to a finding that the plaintiff never uttered a word by way of a written letter or by way of notice asking the defendant to receive the balance consideration amount and to execute and register the sale deed. The lower appellate court further found that the plaintiff has failed to produce any witness to the effect that he ever tendered the balance consideration amount to the defendant and asked him for execution and registration of the sale deed save and except serving a legal notice (Ext.A) before institution of the suit. Learned counsel for the appellant has not been able to satisfy me about the incorrectness of the finding recorded by the lower appelfate court. 11. From perusal of the records it appears that the plaintiff has been in occupation of the suit property as a tenant under the defendant and for his eviction the defendant/respondent instituted Eviction Suit No. 13/84. It appears that the agreement in question alleged to have been executed on 22,10.81 whereas the respondent/defendant filed the said Eviction Suit no. 13/84 on 4.4.84 and it was only after institution of the said Eviction suit that the plaintiff/appellant served a legal notice on 25.4.84 and the suit for specific performance was instituted on 28.7.84. In this view of the matter, it appears that there is no reliable evidence to show that before institution of the Eviction suit by the defendant/respondent any step was taken by the plaintiff/appellant in furtherance of the agreement. I do not find any reason to differ with the findings recorded by the lower appellate court with regard to readiness and willingness of the plaintiff to perform his part of agreement. 12. It is weif settled that in order to sustain a decree for specific performance it is not only necessary for the plaintiff to plead readiness and willingness but to prove the same by sufficient evidence that he was always ready and willing to perform his part of the agreement till the date of institution of the suit. There is no need to multiply the decisions in this regard rendered by the Supreme Court and different High Courts: Suffice it to refer only one decision of the Apex Court in the case of N.P. Thirugnanam V/s. Dr. There is no need to multiply the decisions in this regard rendered by the Supreme Court and different High Courts: Suffice it to refer only one decision of the Apex Court in the case of N.P. Thirugnanam V/s. Dr. R.Jagan Mohan Rao and others reported in [(1995) 5, Supreme Court Cases 115] where it was held: "It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under section 20 of the Specific Relief Act, 1963 (for short the Act). Under section 20 the court is not bound to grant the relief just because there was a valid agreement of sale. Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him other than those terms the performance of which has been prevented or waved by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Rights from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract." 13. So far issue nos. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract." 13. So far issue nos. 6 and 7 with regard to legality and validity of the agreement are concerned, the lower appellate court has dealt the said issues in detail in para 7 and onwards of the judgement. After discussing the evidences in detail and other documentary evidences it has come to the conclusion that the agreement in question is a vague one inasmuch as the description of the property is not fully mentioned nor is there anything to suggest that the defendant put his signature after he was fully made to understand the contents of the document. The appellate court further recorder a positive finding that there was never an agreement to sell executed by the defendant in respect of the suit property. The appellate court has further come to the conclusion that it is not a fit case where the court should exercise discretion under section 20 of the Specific Relief Act. The said finding of facts recorded by the lower appellate court after re-appreciation of entire evidences, needs no interference by this court under section 100 C.P.C. 14. So far exercise of powers by this court under section 100 CPC is concerned, the Apex court has settled the law. In the case of Satya Gupta V/s. Brijesh Kumar [ 1998 (6) SCC 423 ] it was held that the findings of facts recorded by the lower appellate court as a final court of fact, are based on appreciation of evidences and the same cannot be treated as perverse or based on no evidence. That being the position, this court, after re-appreciating the evidences, cannot reverse the findings of fact on the ground that the view taken by it was also possible view on the facts. 15. In the case of Arunugham and others V/s. Sundarambal and another reported in 1999(4) SCC 350 , the Apex Court reiterated the principle and held that it is open to the first appellate court to consider the evidences adduced by the parties and give its own reasons for accepting the evidences on one side or rejecting the evidences on the other side. It is not permissible for the second appellate court to interfere with such finding of the first appellate court only on the ground that the first appellate court had not come to grips with the reasonings given by the appellate court. 16. In the case of Kondiba Dagadu Kadam V/s. Savitribai Sopan Gujar and others ( AIR 1999 S.C. 2213 ) it was held as follows :- "It has been noticed time and again that without insisting for the statement of such substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under S. 100 Code of Civil Procedure. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and substantial question of law. In exercise of the powers under this section the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts howsoever erroneous, cannot be disturbed by the High Court in exercise of the powers under this section. The substantial question of law has to be distinguished from a substantial question of law." 17. Having regard to the entire facts and circumstances of the case and the discussions made hereinabove, I am of the view that the substantial questions of law formulated at the time of admission of this appeal, do not arise as the finding recorded by the lower appellate court is a finding of facts which needs no interference by this court. 18. In the result, I find no merit in this appeal which is, accordingly, dismissed.