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Madhya Pradesh High Court · body

2013 DIGILAW 1255 (MP)

Shashikala Bai v. Asharfi Devi

2013-10-18

M.K.MUDGAL

body2013
JUDGMENT 1. The appellant-defendant has filed this appeal under section 96 of the Code of Civil Procedure being aggrieved by the judgment and decree dated 31.3.2003 passed by the Court of Special Judge NDPS and Additional District Judge, Gwalior in Case No.23-A of 2002 whereby, the suit filed by the plaintiff-respondent Asharfi Devi pertaining to the house bearing No.502 (old) Halka No.6 and New No.575 and Halka No.21 situated at Pingle Sahab-ka-Bada, Chhatri Mandi, Janakganj, Lashker, Gwalior for specific performance of agreement and permanent injunction has been decreed. In this appeal, the appellant is referred as ‘defendant’ and respondent No.1 as ‘plaintiff’. 2. The admitted facts in the case are that the defendant No.1 Shashikala entered into an agreement on 20.10.1978 (Ex.P-1) pertaining to the house bearing No. 502 (old) Halka No.6 New No.575 and Halka No.21 situated at Pingle Sahab-ka-Bada, Chhatri Mandi, Janakganj which is called ‘disputed house’ in this case with the plaintiff for consideration of Rs.21,875/- and received Rs.1000/- as part consideration of the agreement wherein, it was also agreed that the defendants Shashikala and Ramarao Pingle will file an application before Urban Land and Ceiling Authority for permission to sell the disputed house to the plaintiff. The said permission was granted in Case No.214/78-79/B-121 vide order dated 2.4.1979. 3. The facts, in brief, of the plaint are that the appellant-defendant entered into an agreement to sell to the plaintiff-respondent no.1 and took Rs.1000/- as earnest money and thereafter took Rs.6,235/- total Rs.7,225/-. The plaintiff further stated that the defendant did not comply with the terms and conditions of the agreement to sell Ex.P-1 which were to be complied with by him before execution of the saledeed. It was further stated by the plaintiff that he had been ready and willing for getting the sale deed executed in her favour for which, she got the notices Ex.P-22 dated 6.6.1979, Ex.P-20 dated 20.6.1979 and Ex.P-24 dated 22.7.1979 issued to the defendant through her Advocate but the defendant did not perform the agreement and avoided to execute the sale deed on the false pretext. The defendant had taken the stand that she is not exclusive owner of the property for getting the sale deed executed in favour of the plaintiff. The defendant had taken the stand that she is not exclusive owner of the property for getting the sale deed executed in favour of the plaintiff. The plaintiff further pleaded that even if the defendant No.1 is not the owner of the property, it will not affect the agreement since the defendant No.1 has executed and signed the agreement and so, she is estopped from saying that she is not the owner of the property in dispute and bound to execute the sale deed in favour of the plaintiff. On the basis of above allegations, the suit was filed for specific performance of agreement dated 20.10.1978 or alternatively to refund Rs.40,000/-. 4. The defendant No.1 submitting written statement has contested the suit and stated that the document of agreement to sell was not signed by the plaintiff, owing to which, the said agreement is not legal agreement. It was further stated that the plaintiff had never been ready and willing to perform the agreement. On the other hand, she unnecessarily pressurized the defendant for construction of partition wall before execution of the sale deed whereas, there was no condition agreed between the parties for the same in the agreement to sell Ex.P-1. The defendant has further stated that the money advanced by the plaintiff to her was for construction of the house and not for execution of the sale deed in her favour. When the plaintiff was not ready to the get the sale deed executed in her favour, theagreement was canceled by the defendant, because of this, no relief of specific performance can be granted in favour of the plaintiff and even the suit so filed by the plaintiff is barred by limitation, hence, is liable to be dismissed. 5. The learned trial Court after framing the twenty five issues, recording evidence of both the parties and having considered the recorded evidence, decreed the suit filed by the plaintiff vide impugned judgment dated 31.3.2003 for specific performance of agreement and directed to pay the remaining amount of the consideration to the defendant and thereafter, the defendant shall execute the sale deed pertaining to the disputed house in favour of the plaintiff and the amount advanced by the plaintiff to the defendant no.1 shall be adjusted in the amount of sale consideration. 6. 6. The plaintiff got the three statements of witnesses Brijmohan Das (PW1), Jethamal (PW2) and Vitthal Das Singhal (PW3) examined. However, the defendant has not produced any witness in support of his defence. 7. Before adverting to the evidence of the parties, the application under Order 41 rule 27 of the Code of Civil Procedure is being considered. 8. Heard the arguments of both the parties. The respondent-plaintiff has filed the aforesaid application for taking the additional document on record i.e. the receipt whereby the respondent deposited the money in auction of the decree whereby, the disputed house was being auctioned by the Court. Considering the facts stated in the application, it is allowed and the document is taken on record. 9. The counsel for the appellant submits that the plaintiff has failed to prove before the trial Court that he was ready and willing to perform the agreement Ex.P-1. Despite this fact, the learned trial Court has not properly appreciated the recorded evidence in the right perspective and has committed error in decreeing the suit. The counsel further submits that only the issue regarding readiness and willingness for performance of the contract is being challenged by the appellant in this appeal. 10. Now the question for consideration is that whether the plaintiff has been ready and willing to perform the agreement for sale Ex.P-1 for getting the sale deed executed in his favour. 11. In the judgment of Shri Laxmi Narayan v. Brijlal [ 1999(2) MPLJ 199 ], the Hon’ble Supreme Court has held as under : “It is to be born in mind that readiness and willingness has to be determined on consideration of the facts in entirety of the circumstances which are relevant for the same.” 12. The counsel for the appellant argued that the plaintiff got the notice dated 6.6.1979 Ex.P-22 issued to the defendant for getting the partition wall constructed before the execution of the sale-deed while there was no such condition agreed between the parties in Ex.P-1. In this manner, the plaintiff herself was not willing to perform the agreement and avoided to perform it by imposing the new aforesaid condition for the compliance of the said agreement. In this manner, the plaintiff herself was not willing to perform the agreement and avoided to perform it by imposing the new aforesaid condition for the compliance of the said agreement. The counsel further pleaded that the plaintiff has reiterated the same condition in the notice dated 20.6.1979 Ex.P-20 and reply dated 22.7.1979 Ex.P-24 so it should be inferred that the plaintiff was at fault and was not at all willing to perform the said agreement whereas the defendant got the permission from the Urban Land and Ceiling Authority for selling the disputed property and duly intimated the plaintiff in this connection. Even in spite of it, the plaintiff did not get the sale deed executed in his favour. The counsel for the appellant further put forth that the possession of the ground floor was given to the plaintiff at the time of execution of the Ex.P-1. Although the condition for giving the possession of the first floor to the purchaser-plaintiff was embodied in the agreement Ex.P-1, yet it was not to be complied with, following which, the said condition was contrary to law as a tenant who was residing in the upper storey could have been evicted against the provisions of M.P. Accommodation Control Act which provides protection to the tenancy. In such circumstances, the defendant was not bound to evict the tenant and hand over the vacant possession to the plaintiff at the time of execution of the sale deed. 13. The counsel for the appellant further submitted that the defendant was not bound to get the property redeemed from the mortgage or any encumbrance as there was no liability to pay the amount stated in the agreement Ex.P-1. Besides, the plaintiff had no money for payment of remaining consideration to the defendant for getting the sale deed executed in his favour. The learned trial Court without taking into account the said facts, has erred in granting the decree in favour of the plaintiff. To bolster his submissions, the learned counsel has cited the judgment in Ammilal and Another v. Kamla Bai [ILR 2010 (MP) 243], and J.Samuel and others v. Gattu Mahesh and others [ (2012)2 SCC 300 ]. 14. Controverting the aforesaid arguments, supporting the impugned judgment and decree passed by learned trial Court, the learned senior counsel for the respondent submitted that the impugned judgment is based on proper reasonings and fair amount of rationality. 14. Controverting the aforesaid arguments, supporting the impugned judgment and decree passed by learned trial Court, the learned senior counsel for the respondent submitted that the impugned judgment is based on proper reasonings and fair amount of rationality. The plaintiff had always been ready and willing to perform the agreement Ex.P-1 and promptly came forward for the execution of the sale deed. Even the plaintiff gave Rs.6,875/- on 12.11.1978 to the defendant on her request when she was in dire need and the endorsement of the same has been stated in the agreement Ex.P-1 which was mutually signed and agreed by the defendant. The learned counsel further submits that the notice Ex.P-20 dated 20.6.1979 was issued by the plaintiff to the defendant for complying the terms and conditions of the agreement Ex.P-1 but in spite of receiving the said notice, the defendant neither got the disputed property redeemed from the mortgagor as stated in the agreement Ex.P-1 nor intimated with the assurance to the plaintiff that she was ready to comply with the terms and conditions of the agreement Ex.P-1. 15. The counsel further argued that the defendant did not act upon the terms and conditions of the agreement Ex.P-1 and he deliberately avoided to perform the execution of the sale-deed. The plaintiff has successfully proved his claim before the trail Court where from, the impugned judgment and decree have been passed in favour of the plaintiff after considering the entire recorded evidence and facts and circumstances of the case. Exercising the discretion, the learned trial Court has given the proper findings and passed the judgment and decree. No interference is as such required in this appeal unless the findings are found perverse to the recorded evidence particularly when the defendant has not produced any evidence for the rebuttal of the plaintiff’s evidence. The counsel further put forth that the submission made on behalf of the defendant is entirely against her pleadings as the defendant has never pleaded in the written statement that handing over vacant possession of the first floor to the plaintiff as per terms and conditions of the said contract would be unlawful and against the provisions of the M.P. Accommodation Control Act. To bolster his submissions, the learned counsel cited a few judgments. 16. Considered the arguments and perused the record. 17. The execution of the agreement to sell Ex.P-1 dated 20.10.1978 is not disputed. To bolster his submissions, the learned counsel cited a few judgments. 16. Considered the arguments and perused the record. 17. The execution of the agreement to sell Ex.P-1 dated 20.10.1978 is not disputed. Apart form it, Vitthal Das (PW-3) plaintiff’s husband being power of attorney holder vide Ex.P-2, has deposed in para 1 to 3 of his statement that the defendant contracted to sell the disputed property for the consideration of Rs.21,875/- out of which Rs.1,000/- was received by her as part consideration of the contract and she executed the document Ex.P-1 in his presence. The witness (PW3) elaborately deposing in the statement has proved the contents of Ex.P-1 and further stated that he signed the contract on his wife’s behalf. Although the statement of the plaintiff Smt. Shashikala Bai has not been recorded yet it does not affect the merit of the case as the husband of the plaintiff (PW3) is competent enough to depose on her behalf. In the judgment of ILR 2012 (M.P.) 730, Smt. Rajni Tiwari v. Smt. Bhagyawati, this Court has held that a husband is a competent witness to depose the facts which he knows personally on his wife’s behalf. In the instant case, the document was executed in the presence of (PW3) who signed the document as witness. The execution of the document Ex.P-1 by the defendant has been proved by Brij Mohan Das (PW1), Typist and Jethamal (PW2), the broker. To deny the contents of the Ex.P-1, the defendant has neither come forward in the witness box to depose her statement nor produced any evidence. 18. The execution of the document Ex.P-1 by the defendant has been proved by Brij Mohan Das (PW1), Typist and Jethamal (PW2), the broker. To deny the contents of the Ex.P-1, the defendant has neither come forward in the witness box to depose her statement nor produced any evidence. 18. On perusal of the Ex.P-1, the following terms and conditions crop up from the record which were obligatory for the parties to comply with : (i) Payment of total consideration for the sale Rs.21,875/- out of which Rs.1,000/- was received by the defendant as part consideration; (ii) The said agreement was to be complied with within three months; (iii) The defendant was to get NOC from the Urban Ceiling Land Department and it’s intimation was to be furnished to the plaintiff; (iv) The defendant had to redeem the disputed property from the mortgagee after paying Rs.6,000/- and Rs.3,000/- before execution of the sale-deed; (v) Vacant possession of the first floor to be given, was agreed upon between the parties at the time of execution of the sale deed; (vi) The defendant received Rs.6,875/- from the plaintiff on 12.11.1978 when he was in dire need. 19. Indisputably, the NOC was obtained by the defendant for selling the property and intimation in this regard was sent to the plaintiff by the defendant vide notice dated 19.4.1979 Ex.D-8, which was received by the plaintiff who replied the said notice on 6.6.1979 Ex.P-22. On perusal of both the aforesaid Ex.D-8 and Ex.P-22, it becomes clear that the defendant had obtained NOC from the Urban Ceiling Land Authority. However, the defendant has not mentioned in the Ex.D-8 that the disputed property had been redeemed from the mortgage by her and the vacant possession of the first floor was to be given at the time of execution of the sale deed. Hence, it is clear that the defendant herself was not ready to comply with the terms and conditions mutually agreed by the parties vide Ex.P-1. It is also true that the plaintiff asked the defendant to construct the partition wall vide para 2 of Ex.P-22 though the said condition was not agreed upon between the parties in Ex.P-1. On the basis of which, it cannot be inferred that the plaintiff was not willing to perform the execution of the contract. It is also true that the plaintiff asked the defendant to construct the partition wall vide para 2 of Ex.P-22 though the said condition was not agreed upon between the parties in Ex.P-1. On the basis of which, it cannot be inferred that the plaintiff was not willing to perform the execution of the contract. The plaintiff can be blamed here only when the defendant had fulfilled the terms and conditions of the document Ex.P-1. 20. The defendant got the notice dated 13.6.1979 Ex.D-9 issued through her Advocate, wherein it was stated by the defendant that only the symbolic possession of the first floor would be given as her tenant Rameshwar Dayal Bohare was residing in that portion. Here it comes to light that the defendant had backed out of the terms and conditions agreed upon earlier that the vacant possession of the first floor to the plaintiff would be given. Over and above, the defendant did not reveal the fact in Ex.D-9 that the said property was redeemed from the mortgage owing to which, it can be inferred that the defendant was not even willing to redeem the said property which was mortgaged for Rs.9,000/-. Replying the said notice Ex.D-9, the plaintiff has asked in para 4 of Ex.P-20 dated 20.6.1979 that the disputed property ought to be redeemed by the defendant before execution of the sale-deed. But, after receipt of Ex.P-20, the defendant neither got the property redeemed nor assured the plaintiff of doing so before execution of the sale-deed. 21. Furthermore, the plaintiff again issuing the notice dated 22.7.1979 Ex.P-24 has stated that symbolic possession of the first floor was not agreed upon between them instead of the actual possession of the said portion and further added that the property was not even redeemed from the mortgage so far. The plaintiff implored the defendant further that both the said conditions be fulfilled first and then she would get the sale-deed executed in his favour. In response to the Ex.P-24, the defendant reiterated vide Ex.D-11 dated 2.8.1979 that the plaintiff did not get the sale-deed executed within stipulated three months, resultantly, the defendant canceled the agreement to sell Ex.P-1 and asked the plaintiff to hand over the possession of the ground floor to her which the plaintiff had been occupying since the execution of the Ex.P-1. In view of the aforesaid facts and circumstances, it is obvious that the defendant had never been willing and desirous to fulfil both the said conditions which were obligatory on his part to be performed. 22. Thus for the non-compliance of the conditions, the defendant is to blame here rather than the plaintiff. The contention of the defendant that the plaintiff was not willing to perform the contract and had no money for getting the sale executed is totally false and baseless as the plaintiff deposited the mortgage money Rs.4,945/- in the Court when the disputed property was being auctioned by Court for execution of the mortgage money. In view of the facts, it transpires that if the plaintiff had not been willing to perform the agreement and purchase the disputed land, he would not have deposited the amount before the executing Court. Citing the judgment in J.Samuel v. Gattu Mahesh [ (2012)2 SCC 300 ] (supra), the learned counsel for the appellant submits that in a suit for specific performance of the contract, unless there is specific allegation that the plaintiff has performed or has always been ready and willing to perform essential terms of contract, the suit filed by him is liable to be dismissed. The said judgment does not corroborate the appellant’s case as the said case is based on quite distinct facts and circumstances as in this case the respondent/plaintiff has specifically pleaded in paras 8 to 12 of the plaint that she has been ready and willing to perform the terms and conditions of the contract. 23. The contentions of learned counsel for the appellant/defendant to this effect that the defendant was not required to get the disputed property freed from the mortgage as there was no liability to pay the debt money for its redemption, so the defendant did not violate the terms and conditions of the contract, is not acceptable since the defendant has specifically mentioned in the agreement for sell Ex.P-1 as follows:- ^^edku nks txg ds fy, :- 6]000@& o :- 3]000@ dk jgu gS fglkc djds o;ukek ds igys eqDr djkdj nawxhA** Moreover, the defendant has also admitted the above stated fact in para 3 of the written statement. Under these circumstances, it cannot be accepted that the defendant had no liability to get the property redeemed from the mortgage by making the payment of Rs.9,000/- to the mortgagee before execution of the sale-deed. As per the notices given by the defendant, it is evident that she was not willing at all to fulfil the said terms and conditions on her part for the execution of the sale-deed. 24. Further the contention of learned counsel for the defendant that handing over the actual possession of the first floor of the disputed property was not agreed upon between the parties cannot be conceded as it has been explicitly mentioned in Ex.P-1. Nevertheless the defendant repeatedly denied in her notice Ex.D-9 dated 13.6.1979 and Ex.D-11 dated 2.8.1979 for giving the actual possession of the first floor instead of symbolic possession because, a tenant was residing in the first floor of the said property. At the time of the agreement, it was agreed by the defendant that she would handover the vacant possession of the first floor to the plaintiff, therefore, it was obligatory on her part to give the vacant possession of the first floor. It cannot be an excuse for the defendant that a tenant was residing in the first floor of the said property so she was not liable to handover the vacant possession. Moreover, if the defendant was not in a position to get the possession of the first floor vacated from the tenant, she should not have contracted for handing over the vacant possession of the first floor. Under these facts and circumstances, it can be inferred that the defendant has willfully deviated from the terms and conditions of the said contract where the defendant herself did not keep her stand to fulfil the terms and conditions of the contract following which, the defendant cannot blame the plaintiff for not being ready and willing to perform the contract. The learned trial Court after considering the recorded evidence, has arrived at the conclusion in paras 25, 26 and 27 of the impugned judgment that the plaintiff had been ready and willing to perform the said contract before the filing for the suit. In view of the recorded evidence and said circumstances, the findings rendered by the learned trial Court are quite appropriate and convincing. 25. In view of the recorded evidence and said circumstances, the findings rendered by the learned trial Court are quite appropriate and convincing. 25. Over and above, the defendant has never turned up before the trial Court in person for getting her statement recorded for rebuttal of the plaintiff’s evidence and no sufficient reason has been tendered by the defendant in this regard. Thus, the presumption goes against her for not getting her statement recorded as well as not producing any evidence in her support. In this regard, the judgment in the case of Bank of India v. S.K.Mukherjee [ 2006(2) JLJ 439 = 2006(1) MPLJ 477 ], and Tarachand v. Taradevi Gupta [ 1981 MPWN 255 ], are relevant. 26. The contention of the learned counsel for the appellant-defendant that the said property was a joint one, so the defendant being not the sole owner of the property was not authorized to make the contract for sale to the plaintiff is not admissible here as the defendant had contracted for sale of the disputed property to the plaintiff in the capacity of the sole owner of the said property. So she is now estopped from saying that she is not the sole owner of the property. On this ground, the decree for specific performance of the contract cannot be denied. In this respect, the judgment in the case of Girdhari Lal (dead) through LRs Vimla Bai and others v. Dashrath and Others [ 2006(2) MPHT 484 ], may be perused. 27. Time, when essence of the contract is determined on the basis of facts of each case. In the matter of immovable property time is not normally an essence of the agreement. In M.P. Housing Board v. progressive Writers and Publishers [2010(1) JLJ 108=2009(4) MPJR 390 (SC)], the Hon’ble apex Court has held as under : “It is fairly well settled that the time is not normally an essence of any agreement qua immovable properties and even there was an express covenant of time being an essence, the overall agreement have to be looked at to determine whether the time was the essence. Whether, the time is the essence of the contract would, therefore, be a question of fact to be determined in each case and merely expression of the stipulated time would not make time an essence of the contract. Whether, the time is the essence of the contract would, therefore, be a question of fact to be determined in each case and merely expression of the stipulated time would not make time an essence of the contract. It depends upon the facts and circumstances of each case. In cases where notice is given making time of the essence, it is the duty of the Court to examine the real intention of the party giving such notice by looking at the facts and circumstances of each case. The intention can be ascertained from : (i) the express words used in the contract; (ii) the nature of the property which forms the subject matter of the contract; (iii) the nature of the contract itself; and (iv) the surrounding circumstances”. 28. In the instant case, time is not the essence of the contract as the plaintiff has been holding the possession of the ground floor of the said property since execution of the agreement. In such a situation, if the contract Ex.P-1 is not performed in favour of the plaintiff, it would cause more hardship to the plaintiff rather than to the defendant as only defendant is to blame for non-performance of the contract because of her perpetual denials in the notices transacted with the plaintiff as stated earlier. 29. The judgment in Ammilal v. Kamlabai [ILR 2010 (MP) 243] (supra), cited by the appellant’s counsel does not support the case of the appellant as in the aforesaid cited judgment, the plaintiff utterly failed to have proved his readiness and willingness to fulfill the terms and conditions of the contract whereas, in the instant case, the appellant/defendant did not comply with the terms and conditions on her part as discussed earlier, whereas, the respondent-plaintiff was ready and willing for getting the sale deed executed in her favour. 30. In the instant case, the approach of the learned trial Court in appreciation of the recorded evidence and consideration of the circumstances in which the said deal was done is absolutely justified and correct. An appellate Court should not normally interfere in the findings of the court below unless and until, they are perverse to the recorded evidence and against the provisions of law as held by the apex Court in Harvansh Singh and Another v. Bhagwan Das and another [ 2006(3) JLJ 284 = 2006(1) MPLJ 604 ]. 31. An appellate Court should not normally interfere in the findings of the court below unless and until, they are perverse to the recorded evidence and against the provisions of law as held by the apex Court in Harvansh Singh and Another v. Bhagwan Das and another [ 2006(3) JLJ 284 = 2006(1) MPLJ 604 ]. 31. Having taken into account all the facts and circumstances, affirming the findings of impugned judgment and decree, the appeal filed by the defendant having no substance and merit is hereby dismissed. The cost of this appeal shall be borne by the appellant. 32. Let the decree be drawn up accordingly.