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2002 DIGILAW 395 (KAR)

Imamsaheb v. Sarojini

2002-06-21

V.GOPALA GOWDA

body2002
JUDGMENT V. Gopala Gowda, J.--This Regular Second appeal is filed by the Plaintiff questioning the legality and validity of the judgment and decree dated 3.3.1999 passed in Regular Appeal No. 5 of 1998 by the I Additional District Judge, Bijapur, in setting aside the judgment and decree dated 31.1.1998 passed in O.S. No. 146 of 1996 by the Additional Civil Judge (Senior Division), Jamakhandi, framing five substantial questions of law in the memorandum of appeal and urging various grounds in support of the same. 2. For the sake of convenience, parties are referred to in this judgment as per their ranking before the trial Court. 3. This Court at the time of admission of this appeal on 17.3.1999 has framed the following substantial questions of law for consideration of this Court and answer the same: Whether the reversal of the decree for specific performance by the appellate Court is proper on the basis of evidence? 4. The brief facts which are necessary for the purpose of considering and answering the substantial question of law framed by this Court are stated as hereunder: Plaintiff filed the suit for grant of judgment and Decree of specific performance in his favour against the Defendant directing Defendant to execute the sale deed in favour of the Plaintiff in respect of the suit shop premises; and also for grant of permanent injunction against the Defendant prohibiting her from dispossessing the Plaintiff from the suit shop premises till the execution of the sale deed and in the alternative to direct the Defendant to pay Rs.25,000/- being the purchase money and Rs.55,000/- by way of damages together of Rs.75,000/- to the Plaintiff in case, the plea of specific performance is disallowed by the Court and further to award future interest on Rs.75,000/- from the date of decree till the date of realisation. The case of the Plaintiff is that the suit shop belonged to late Sri Ganesh s/o. Narayana Vaidya of Jamakhandi, after his death, the succession has devolved upon the Defendant, who being the widow represents the estate as the Manager of the Joint Family; the suit shop was given to him on lease wherein he is running his business of repairing and hiring of bicycles; in HRC No. 39 of 1977 the order of eviction was passed against him by the learned Munsiff, Jamakhandi, at instance of the Defendant which order came to be confirmed in Civil Revision Petition No. 1627 of 1984 by this Court; despite the fact the Defendant is allowed to take possession of the suit shop, negotiations were held between the parties for about 10 years, thereby the tenancy of the Plaintiff was given a fresh lease of confirmation of possession of the suit premises, by an agreement of sale dated 2.1.1996 executed by the Defendant in his favour; under the said agreement the Defendant has agreed to sell the shop premises for a valuable consideration of Rs.75,000/- and on the very same day, Defendant received a sum of Rs.20,000/- as an earnest money from him; the stipulated period was fixed as 31.3.1996 for performance of the terms of the contract by the Plaintiff. However, Defendant extended the period upto the month of August, 1996, subject to payment of interest at 2% per month on the sale consideration amount; and as such he has stayed as a tenant of the suit shop became that of a prospective buyer with confirmation of possession casting relative liability on the Defendant to abandon the eviction decree obtained by her in the HRC proceedings stated supra; that he was ever ready and willing to perform his part of the agreement since 2.1.1996; that he requested the Defendant in the month of September 1996 to fix the date for execution of the sale deed; due to the sudden demise of Sri K.A. Parulekar, Advocate, Defendant asked him to wait for some time; believing the same, he was waiting for the response from the Defendant; thereafter, he came to know that in blatant violation of the agreement, the Defendant was pressing the execution petition for possession of the suit premises and as such he has filed the suit seeking for the reliefs as stated supra. 5. 5. The Defendant filed written statement inter alia contending that she is not the Manager of the Joint Hindu Family and admitted the facts regarding the devolution of property upon her; the execution proceedings which was confirmed by this Court in her favour; the execution of the agreement of sale in favour of the Defendant on 2.1.1996 to sell the property for a sum of Rs.75,000/- by accepting Rs.20,000/- as an earnest money deposit. It is further stated that as per the terms and conditions enumerated in the agreement, the Execution Petition No. 56 of 1993 should continue till he performs his part of contract and should pay all the arrears of rent accrued till then; despite the same, Plaintiff neither paid the arrears of rent nor shown his readiness and willingness to perform his part of contract as per the agreement of sale before 31.3.1996; she waited for a further period of three months upto June, 1996 expecting that he would pay the balance consideration amount of Rs.55,000/- but in vain; thereafter she got issued legal notice to him to put an end to the contract; despite the service of notice, the Plaintiff did not turn up; thereafter in the month of July 1996 Plaintiff exhorted her by touching her feet that he should be given further time to perform his part of contract; she being moved by his behaviour and on humanitarian grounds agreed to extend the time till 1.8.1996; thereafter the Plaintiff executed another agreement deed on 10.7.1996 agreeing to pay the balance consideration on or before 1.8.1996 making it as an essence of contract with condition that if he fails to perform his part of contract on or before 1.8.1996, the earnest money of Rs.20,000/- should be forfeited and the original contract dated 2.1.1996 should be deemed to be cancelled. It is the further case of the Defendant that even before the extended period of agreement, the Plaintiff did not perform his part of the contract; the Plaintiff neither gave notice nor informed the Defendant within the stipulated time that he is ready and willing to perform his part of contract; after waiting for three months from the date of issuance of the notice terminating the contract on 24.6.1996, thereafter she had no other alternative except to press for execution petition in E.P. 56 of 1993 on 26.10.1996 by filing an application for advancement of the case for issuance of the eviction warrant; even then, the Plaintiff instead of performing his part of the contract filed an application under Order 21, Rule 99 Code of Civil Procedure taking up a false plea that he has become the owner by principle of part performance under Section 53A of Transfer of Property Act; the said application was dismissed against which the Civil Revision Petition No. 3861 of 1996 was preferred, which also came to be dismissed at the stage of admission itself. It is therefore contended that the circumstances under which the contract was entered into, given the Plaintiff an unfair advantages over the Defendant and as such no decree for specific performance can be passed against her. Further, there is reference to various criminal cases which are extensively referred to in the judgment of the trial Court, which are not necessary in this case. The trial Court on the basis of the pleadings of the parties, framed nine issues for its consideration and answer the same. In support of their respective cases, Plaintiff himself got examined as PW-1 and got marked Exs.P-1 to P-140. Defendant examined himself as DW-1 and got marked documents as Exs.D-1 to D-21. On appreciation of the facts and evidence on record, the trial Court has answered the issues 1, 3, 4, 5 and 8 in the affirmative by recording its findings and reasons in its judgment. Issues 2 and 6 are answered in the negative and accordingly, granted the judgment and decree for specific performance. Aggrieved by the same, Defendant preferred Regular Appeal before the First Appellate Court urging various grounds. Issues 2 and 6 are answered in the negative and accordingly, granted the judgment and decree for specific performance. Aggrieved by the same, Defendant preferred Regular Appeal before the First Appellate Court urging various grounds. The first appellate Court formulated three points for consideration and has answered the points 1 and 2 in the negative and points 3 and 4 in favour of the Defendant and thereby allowed the appeal setting aside the judgment and decree passed by the trial Court. Aggrieved by the said judgment and decree, the Plaintiff has preferred this regular second appeal. 6. Sri Ravi S. Balikai, learned Counsel appearing for the Plaintiff submits with reference to the findings recorded by the trial Court on the contentious issues namely issue Nos. 1, 3, 4, 5 and 8 regarding the execution of the agreement of sale; extension of the time for performance of his contract as per the agreement of sale; readiness and willingness on the part of the Plaintiff to perform his part of the contract and also regarding the entitlement of the Plaintiff for grant of discretionary relief by the trial Court and that the trial Court on proper appreciation of facts and the evidence on record has answered the said issues in favour of the Plaintiff by recording its reasons at paragraphs 7, 8, 9 and 13 of its judgment and also issue No. 6 that the Defendant has failed to prove that the Plaintiff got breach of terms and conditions of agreement/agreements placing reliance upon the judgments of the Supreme Court, Patna High Court, Rajasthan High Court, Andhra Pradesh High Court and this Court by recording its findings with valid and cogent reasons holding that the Plaintiff has proved the execution of the saled agreement and further proved that the Defendant has extended the time for performance of contract by the Plaintiff and he was always ready and willing to perform his part of the agreement and that the Defendant has failed to prove that the Plaintiff committed breach of an agreement of sale. Further, it is submitted that the trial Court has rightly held that the Plaintiff is entitled for discretionary relief of specific performance, which are in accordance with the provisions of Sections 14, 15 and 22 of the Specific Relief Act and the law laid down by the Supreme Court reported in Motilal Jain Vs. Further, it is submitted that the trial Court has rightly held that the Plaintiff is entitled for discretionary relief of specific performance, which are in accordance with the provisions of Sections 14, 15 and 22 of the Specific Relief Act and the law laid down by the Supreme Court reported in Motilal Jain Vs. Smt. Ramdasi Devi and Ors., AIR 2000 SC 2408 and further he has urged that the findings have been set aside by the first appellate Court without proper appreciation of the evidence on record in exercise of its power and jurisdiction though the findings recorded by the trial Court on the contentious issues are not found to be illegal. Therefore, it is submitted that the findings recorded by the First Appellate Court is not based on evidence and as such the substantial question of law framed by this Court would arise for consideration and answer the same in favour of the Plaintiff. 7. Sri M.B. Nargund, learned Counsel appearing for the Defendant sought to justify the impugned judgment contending that the First Appellate Court in exercise of its power and jurisdiction has reappreciated the facts and evidence on record and has answered the first point formulated by it in favour of the Defendant by recording its elaborate reasons at paragraph (9) of its judgment and has referred to the judgments of the Supreme Court based on which, the findings are recorded by the trial Court with a view to answer as to whether the findings recorded by it is based on evidence or not and at Paragraphs 24 to 50 of the impugned judgment it has held that the findings of the trial Court are erroneous in law and also suffers from error in law which findings are supported with valid and cogent reasons and for the reasons recorded at Paragraph 51 of the judgment the first point is answered in the negative and the point No. 2 is answered by the first Appellate Court against the Defendant after having answered point No. 1 in favour of the Plaintiff. Further, point No. 3 is answered in favour of the Defendant holding that the Plaintiff is not entitled for the decree for specific performance and further held that he is entitled for refund of amount of Rs.20,000/- paid towards the earnest money without any interest in terms of the agreement of sale and further held that the Defendant has not committed any breach of contract and as such the Plaintiff is not entitled for damages from the Defendant and has accordingly allowed the Regular Appeal. Therefore, the learned Counsel for the Defendant submits that the impugned judgment does not call for interference with by this Court in exercise of its second Appellate power and jurisdiction. 8. This Court has very carefully examined the findings of the trial Court and the first appellate Court with reference to the legal submissions made at the Bar on behalf of the parties to answer the substantial question of law framed by this Court. 9. For this purpose, I have also examined the findings of the trial Court in the impugned judgment wherein the trial Court has considered the material on record and recorded a finding of fact with reference to the facts and evidence on record and the judgments of the Supreme Court and various High Courts referred to at Paragraph (7) of it's judgment and rightly held and answered the issue No. 1 in the affirmative holding that the Defendant has executed the agreement of sale dated 2.1.1996; and that the Plaintiff has proved that the Defendant has extended the time fixed in the agreement of sale for execution of the sale deed; the Defendant has failed to prove that the Plaintiff has committed the breach in answer to issue No. 6 by recording its reasons at Paragraph 11. Having answered the said contentious issues in favour of the Plaintiff, the trial Court has also examined as to whether the discretionary relief has to be granted in favour of the Plaintiff in answer to issue No. 8 and after referring to the various relevant facts and materials on record has held that there are equitable circumstances in favour of the Plaintiff to grant the relief of judgment and Decree for specific performance after accepting the case of the Plaintiff that except possessing the residential house, he did not own any other property; he has been in possession of the suit property for the last 35 to 40 years as a tenant and is a petty businessman doing hiring and repairing of bicycles and that the Plaintiff and his sons are only the earning members of the family comprising of 4 or 5 persons and as such he is entitled for exercise of the discretionary relief. This findings of the trial Court have been set aside by the first appellate Court by recording its findings and reasons at para 15 in answer to the contentious points. Therefore, this Court has to find out and record the findings with reference to the rival submissions made by the learned Counsel for the parties though the first appellate Court has got the power of re-appreciation of the evidence on record in reversing the findings recorded by the trial Court on relevant contentious issue in answer to the point No. 1 by it is based on the legal evidence and the questions of law which has been considered and answered by the trial Court. I have very carefully examined the findings of the First Appellate Court. The First Appellate Court at Paragraph 31 of its judgment has examined the correctness of the findings recorded by the trial Court on issue No. 4 regarding the readiness and willingness to perform his part of the agreement by the Plaintiff is totally erroneous or not and the same is answered against the Plaintiff. The First Appellate Court at Paragraph 31 of its judgment has examined the correctness of the findings recorded by the trial Court on issue No. 4 regarding the readiness and willingness to perform his part of the agreement by the Plaintiff is totally erroneous or not and the same is answered against the Plaintiff. No doubt, the learned trial Judge has referred to the provisions of Section 16(c) and the judgments of the Supreme Court and this Court upon which much reliance is placed at Paragraph (38) and at Paragraph (40) he has referred to the financial soundness and capacity of the Plaintiff with reference to his Savings Bank account in the Corporation Bank, Jamakhandi, as per the document at Ex.P135 and his evidence regarding the owning of the immovable properties and whether he has the capacity to raise the amount to show that he was ready and willing to perform his part of the contract to pay the remaining balance consideration amount of Rs.55,000/- to the Defendant as per the terms and conditions of the agreement of sale. The First appellate Court ignoring the material evidence on record in favour of the Plaintiff has recorded the finding at Paragraph 42 and wrongly held that the Plaintiff has not produced any document to show that he has got any house worth more than Rs.One Lakh so as to enable him to raise the funds at any time for payment of the amount required by him to perform his part of the contract to the Defendant as per the terms and conditions of agreement of sale placing reliance upon Ex.P.18, the property extract pertaining to the house property owned by the Plaintiff and the charge created on the said property during the years 1979, 1987 and also during November 1996 in respect of loan of Rs.2,000/-, Rs.6,000/- and the loan availed by him from the Jamakhandi Minority Urban Co-operative Credit Society during November, 1996 and further, it is held that the Plaintiff has not produced any material on record to show that he was able to raise the loan to the extent of Rs.65,000/- required by him for performance of his part of the contract and as such the trial Court should not have recorded the finding on the relevant aspect of readiness and willingness of the Plaintiff in answer to the issue No. 6 and further at paragraph 43, it has held that having regard to the nature of the business which the Plaintiff has been running namely the hiring and repairing of bicycles in the suit property as a tenant, the learned trial Judge could not have held that he being the petty businessman is capable of raising the amount required for performance of his part of the contract and as such the Appellate Court has held that the findings recorded by the trial Court are totally erroneous and contrary to the evidence on record. In this regard, this Court after perusal of the said findings has proceeded to answer as to whether the said findings recorded by the Courts below are based on evidence and are in conformity with the law. 10. The Supreme Court in the case of Syed Dastagir Vs. T.R. Gopalakrishnasetty, AIR 1999 SC 3029 after interpreting the provisions of Section 16(c) Explanation (i) of the Specific Relief Act regarding the readiness and willingness to perform the contract and compliance thereof at Paragraphs 9 and 10 has succinctly laid the law as hereunder: 9. 10. The Supreme Court in the case of Syed Dastagir Vs. T.R. Gopalakrishnasetty, AIR 1999 SC 3029 after interpreting the provisions of Section 16(c) Explanation (i) of the Specific Relief Act regarding the readiness and willingness to perform the contract and compliance thereof at Paragraphs 9 and 10 has succinctly laid the law as hereunder: 9. So whole gamut of issue raised is, how to construe a plea specifically with reference to Section 16(c) and what are the obligations which the Plaintiff has to comply with reference to his plea and whether the plea of the Plaintiff could not be construed to conform to the requirement of the aforesaid section, or does this section require specific words to be pleaded that he has performed or has always been ready and is willing to perform his part of the contract. In construing a plea in any pleading, Courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one's case for a relief. Such an expression may be pointed, precise, some times vague but still could be gathered what he wants to convey through only be reading the whole pleading, depends on the person drafting a plea. In India, most of the pleas are drafted by Counsels hence aforesaid difference of pleas which inevitably differ from one to other. Thus, to gather true spirit behind a plea it should be read as a whole. This does not distract one from performing his obligations as required under a statement. But to test, whether he has performed his obligations one has to see the pith and substance of a plea. Where a statute requires any fact to be pleaded then that has to be pleaded may be in any form. Same plea may be stated by different persons through different words then how could it be constructed to be only in any particular nomenclature or word. Unless statute specifically require for a plea to be in any particular form, it can be in any form. No specific phraseology and language is required to take such a plea. The language in Section 16(c) does not require any specific phraseology but only that the Plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. No specific phraseology and language is required to take such a plea. The language in Section 16(c) does not require any specific phraseology but only that the Plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of "readiness and willingness" has to be in spirit and substance and not in letter and form. So to insist for mechanical production of the exact words of an statute is to insist for the form rather than essence. So absence of form cannot dissolve an essence if already pleaded. 10. Returning to the facts of the present case, we find the aforesaid pleading recites that all balance amount of the consideration under the contract has been paid by the Plaintiff of which there is an endorsement by the Defendant except the balance amount of Rs.120/- about which also there is a specific plea that he has tendered the same in the Court. It is true in the pleading the specific word "ready and willing to perform" in this nomenclature is not there but can aforesaid plea, could be read that Plaintiff was not ready and willing to perform his part of the obligation? In other words, can it be said he has not pleaded that he is "ready and willing" to perform his part? Courts cannot draw any interference in abstract or to give such hyper-technical interpretation to defeat a claim of specific performance which defeats the very objective for which the said Act was enacted. The section makes it obligatory to a Plaintiff seeking enforcement of specific performance, that he must not only come with clean hands but there should be a plea that he has performed or has been and is ready and willing to perform his part of the obligation. Unless, this is there, Section 16(c) creates a bar to the grant of this discretionary relief. As we have said for this it is not necessary to plea by any specific words, if through any words it reveals the readiness and willingness of the Plaintiff to perform his part of obligation then it cannot be said there is non-compliance of the said section. 11. As we have said for this it is not necessary to plea by any specific words, if through any words it reveals the readiness and willingness of the Plaintiff to perform his part of obligation then it cannot be said there is non-compliance of the said section. 11. By a careful reading of the law laid down the aforesaid case, it is clear that the payment of balance consideration amount in Court without Court's order cannot be construed adversely against the Plaintiff. In fact, he has pleaded that he was ready and willing to perform his part of the contract. In that regard, evidence has been adduced by him before the trial Court and further the Supreme Court after interpreting the Explanation part of Section 16(c) of the Specific Relief Act where a contract involves the payment of money, it is not essential for the Plaintiff to actually tender the remaining consideration amount as agreed upon to the Defendant or deposit in Court any money except when so directed by the Court, but the Plaintiff must as per Explanation (ii) atleast aver performance of, or his readiness and willingness to perform, the contract according to its true construction. In this regard, the trial Court while answering Issue No. 6 in its judgment at Paragraph (11) has referred to the pleadings of the parties and the evidence on record and held that though the Plaintiff has not produced any document to show that infact he was ready to pay the balance consideration amount and arrears of rent said to be settled at Rs.3,000/-, it has come in his evidence that he has got house property in Jamakhandi; that the entries in the property extract got produced and marked by the Defendant with regard to the proof to show that he has borrowed and repaid loan by the Plaintiff over his property speaks of his capability to pay the remaining sale consideration amount to the Defendant. Further, with reference to the legal notice dated 24.6.1996, the trial Court has held that the Plaintiff has denied the receipt of such notice got issued by the Defendant on the said date and has accordingly, answered the Issue No. 6 in favour of the Plaintiff holding that he has not committed any breach of contract as contended by the Plaintiff and the said issue is rightly held against the Defendant. The first appellate Court in answer to the Point No. 1 has held that though there is evidence as per Ex.P. 135 to show that the Plaintiff has sold four acres of land prior to Ex.P-135 and that he withdrew the amount from the Bank which was the sale proceeds of the said land and paid has held that the Plaintiff has not stated in his evidence as to when exactly he sold the said land and for what amount and when he deposited its sale proceeds into the said account to which the pass Book Ex.P-135 pertains and when he withdraw the amount from the said account for making payment to the Defendant; towards the remaining sale consideration amount to perform his part of contract in terms of the sale agreement that he has even stated as to whether he sold the said land earlier to or after 2.1.1996 i.e., the date of suit agreement; he has not produced the sale deed executed by him in favour of the purchaser of his said land; a perusal of Ex.P-135 pass book it is clear that the account itself was closed on 24.7.1996 and the entries therein from 12.1.1996 to 24.7.1996 clearly show that he did not maintain more than Rs.20,000/- as balance to his credit on any date during the said period. Further, it has held that the oral evidence of PW-1-the Plaintiff and the documentary evidence as per Ex.P-135 the pass book are not sufficient to hold that he had with him Rs.65,000/- on any date during the period from 2.1.1996 being the date of suit agreement to 2.12.1996 i.e. the date of institution of the present suit so as to enable him to be ready and willing to pay to the Defendant Rs.55,000/- being the balance consideration amount, Rs.3,000/- being the arrears of rent and also to spend about Rs.6,000/- to Rs.8,000/- towards the expenses of registration. Further, at paragraph (42) of the impugned judgment, the first Appellate Court has recorded the finding holding that the Plaintiff has not produced any document to show that he has got any house property worth more than Rs.One Lakh despite the fact that the Defendant herself produced the house property extract of Jamkhandi and the said findings are recorded by the first appellate Court on certain surmises and conjectures ignoring the material evidence on record in favour of the Plaintiff whereas the trial Court has rightly accepted the case of the Plaintiff while answering the contentious issues on this relevant aspect of the matter on proper appreciation of the evidence on record holding that the Plaintiff was ready and willing to perform his part of the contract. Further, the trial Court has also taken into consideration the undisputed fact that the Plaintiff deposited the remaining balance consideration amount of Rs.55,000/- before it on 9.12.1996. This important aspect of the matter has been very conveniently omitted by the first appellate Court which goes to show that the Plaintiff was ready and willing to perform his part of the contract in terms of the agreements of sale referred to supra. 12. Further, with regard to the finding recorded by the First Appellate Court on Point No. 1 regarding the delay in not performing the contract by the Plaintiff, the learned Counsel has rightly placed reliance upon the judgment of the Supreme Court reported in Motilal Jain Vs. Smt. Ramdasi Devi and Ors., AIR 2000 SC 2408 wherein interpreting Section 16 of the Specific Relief Act, law has been succinctly laid down at Paragraph (6) as follows: 6. The first ground which the High Court took note of is the delay in filing the suit. It may be apt to bear in mind the following aspect of delay which are relevant in a case of specific performance of contract for sale of immovable property: (i) delay running beyond the period prescribed under the Limitation Act; (ii) delay in cases where though the suit is within the period of limitation yet: (a) due to delay the third parties have acquired rights in the subject-matter of the suit; (b) in the facts and circumstances of the case, delay may give rise to plea of waiver or otherwise, it will be inequitable to grant a discretionary relief. Here none of the above mentioned aspects applies. Here none of the above mentioned aspects applies. That apart faculty also, the High Court proceeded on an incorrect assumption with regard to cause of action. Ext. 2 was executed on February 20, 1977 and under it the sale deed was to be executed on or before July 19, 1977. The last notice was issued on November 26, 1978 and from that date the suit was filed only after nine months and not after more than a year as noted by the High Court. Therefore, on the facts of this case the ground of delay cannot be invoked to deny the relief to the Plaintiff. 13. Therefore, the delay in filing the suit as contended by the learned Counsel for the Defendant placing reliance upon the provisions of Section 16(b) of Specific Performance Act, 1963 that the specific performance of the contract cannot be enforced in favour of the person who is incapable of performing or violates any essential terms of contract which remains to be performance and that this legal aspect of the matter has been taken into consideration by the First appellate Court in setting aside the judgment of the trial Court. The said contention is no longer res integra in view of the observations made by the Supreme Court in Motilal Jain's case referred to supra. Further, the Supreme Court dealing with the very same aspect of the matter, has laid down the law with reference to the provisions of Specific Relief Act, 1963, Section 10 Explanation (i) and Section 9 holding that the party must approach the Court within the reasonable time even if time is not an essence of contract. Further, the Supreme Court interpreting what is reasonable time has held that it means as the circumstances permit and has observed at Paragraph (6) that the trial Court has to consider what is reasonable time for the party to approach it for filing the suit seeking grant of judgment and decree for specific performance. Therefore, the contention urged in this regard by the Defendant's Counsel placing reliance upon the findings recorded by the first appellate Court are wholly untenable in law and the same cannot be accepted and accordingly rejected. 14. Therefore, the contention urged in this regard by the Defendant's Counsel placing reliance upon the findings recorded by the first appellate Court are wholly untenable in law and the same cannot be accepted and accordingly rejected. 14. The learned Counsel for the Defendant has also contended that the trial Court while granting the judgment and decree in favour of the Plaintiff has not considered the provisions of Section 14 of the Act having regard to the facts and evidence on record and has recorded the erroneous finding that the Plaintiff has not failed to perform his part of the contract in answer to the contentious Issue No. 6, that this alleged erroneous finding has been set aside by the first appellate Court in answer to the Point No. 1 for the reasons recorded at Paragraphs 41 to 43 of its judgment wherein it is held that the Plaintiff was not ready and willing to perform his part of the contract as he has not produced any evidence to show that he had money with him or was capable to raise the loan for payment of the remaining balance consideration amount of Rs.55,000/- placing reliance upon the judgments of this Court reported in C. Nazeer Ahmed Vs. S. Jahan Ara, ILR (2000) KAR 3536 . As I have already held that those findings recorded by the First Appellate Court for setting aside the findings on Issue No. 6 recorded by the trial Court are all erroneous in law as the First appellate Court had ignored the facts namely that the Plaintiff was ready and willing to perform his part of the contract and on that count only, the Defendant did not execute the H.R.C. decree obtained by her for quite a long time and he has deposited the remaining consideration amount payable to the Defendant before the trial Court. After careful reading of the aforesaid judgments upon which the Defendant's Counsel has placed reliance and the obiter dicta of the judgments referred to in the earlier paragraphs of this judgment upon which the learned Counsel for the Plaintiff has placed reliance upon, I am satisfied that the reliance placed upon by the Plaintiff's Counsel is well founded and the ratio laid down and the observations made in the aforesaid judgments with all fours applicable to the facts of the present case. Therefore, this Court has to accept the same in order to set aside the impugned judgment of the First Appellate Court and answered the substantial question of law framed by this Court in this case in favour of the Plaintiff holding that the findings and the reasons recorded by the First Appellate Court are erroneous and also suffers from error in law. 15. The Apex Court interpreting the jurisdiction and power of this Court under Section 100 Code of Civil Procedure placing reliance upon the judgments reported in Sir Chunilal V. Mehta and Sons, Ltd. Vs. The Century Spinning and Manufacturing Co., Ltd., AIR 1962 SC 1314 , Dr. Ranbir Singh Vs. Asharfi Lal, JT (1995) 6 SC 668 ; Panchugopal Barua and others Vs. Umesh Chandra Goswami and others, AIR 1997 SC 1041 and Kshitish Chandra Purkait Vs. Santosh Kumar Purkait and others, AIR 1997 SC 2517 has held that if the impugned judgment is vitiated on account of the erroneous findings and error in law, it amount to substantial question of law as it affects the right of the Plaintiff. For this reason also, the substantial question of law requires to be answered in favour of the Plaintiff and accordingly, it is answered. 16. The substantial question of law framed in this case required to be answered in favour of the Plaintiff for one more strong reason namely that the trial Court after referring to relevant facts and on appreciation of the evidence on record has recorded its findings on the relevant contentious Issue No. 8 in favour of the Plaintiff by assigning valid and cogent reasons was fully convinced that there is equity in favour of the Plaintiff while answering the Issue No. 8 at Paragraph 13 in exercise of its discretionary power under Section 20(2) of the Specific Relief Act which important aspect of the matter as I have already referred in the contentions urged by the Plaintiff in the earlier paragraph of this judgment; the first appellate Court while setting aside the said findings of the trial Court has not considered as to whether the exercise of its discretionary power is legal or not and has not at all adverted to the above said legal aspect of the matter with reference to the findings recorded by the trial Court keeping in view the evidence on record. The reliance placed by the Defendant's Counsel upon the judgment of the Supreme Court reported in 2001 SLT 739 in support of the contention that the exercise of power by the first appellate Court is in conformity with the judgment of the Apex Court referred to supra has no application to the facts of the present case, for the reason that the trial Court on appreciation of the evidence on record and having regard to the status of the Plaintiff and also the fact that if the discretionary relief is not granted in favour of the Plaintiff, he would be in most disadvantageous position than the Defendant and his family comprising of 4 to 5 persons are completely depending upon his livelihood are the relevant equitable grounds weighed in the mind of the trial Court and therefore it has granted the relief of specific performance in favour of the Plaintiff after due exercise of its discretionary power. Non-consideration of this important aspect of the matter by the first Appellate Court has also rendered the impugned judgment vitiated in law as it was the statutory duty cast upon it to examine this aspect of the matter also and pass appropriate order after recording its findings on this vital aspect of the matter in exercise of its power under Section 20(2) Specific Relief Act keeping in view the law laid down by the Apex Court on this question of law. 17. For the reasons stated supra, I proceed to pass the following order: ORDER This regular second appeal is allowed. The impugned judgment and decree passed in Regular Appeal No. 5 of 1998 by the First Appellate Court is set aside. The judgment and decree passed in O.S. No. 146 of 1996 by the trial Court is restored. The Defendant is directed to execute the sale deed within 60 days from the date of receipt of the judgment and Decree failing which the Plaintiff may approach the Executing Court to get the sale deed executed through the Court Commissioner. 18. The judgment and decree passed in O.S. No. 146 of 1996 by the trial Court is restored. The Defendant is directed to execute the sale deed within 60 days from the date of receipt of the judgment and Decree failing which the Plaintiff may approach the Executing Court to get the sale deed executed through the Court Commissioner. 18. After dictating the judgment, the learned Counsel for the Plaintiff submits that the relief of permanent injunction was not pressed by him by filing a memo at that time for the reasons stated in the memo; that as against judgment and decree passed by the first appellate Court in the Regular Appeal setting aside the judgment and decree of specific performance granted in his favour by the trial Court, he has filed this regular second appeal and this Court granted the stay of dispossession of the Plaintiff having regard to the fact that he has been in possession of the property; there was a prayer for grant of permanent injunction against the Defendant and also the fact that the execution petition filed by the Defendant as on the date of the filing of the original suit is still pending. Plaintiff has been in possession of the suit schedule premises as a tenant against whom the eviction order was obtained by the Defendant. The said eviction order was substituted by an agreement of sale as per Ex.D1 entered into between the parties on the basis of which, the trial Court has granted the judgment and decree of specific performance in his favour. Since the execution petition is still pending, this Court has stayed the dispossession of the Plaintiff by granting the interim order. Now, as this Court has allowed this Regular Second Appeal restoring the judgment and decree of specific performance granted by the trial Court in favour of the Plaintiff and since the Plaintiff has been in possession, in the interest of justice, the Defendant is directed not to dispossess the Plaintiff from the suit schedule property.