Research › Search › Judgment

Madhya Pradesh High Court · body

2018 DIGILAW 528 (MP)

Jai Prakash Agarwal v. Brahma Kumar Jutsi

2018-05-31

VIVEK AGARWAL

body2018
JUDGMENT 1. This first appeal under section 96 of CPC has been filed by the plaintiff being aggrieved by judgment and decree dated 17.9.2002 passed by the Court of Special Judge (NDPS) and Additional District Judge, Gwalior, in Civil Suit No. 5-A/2002 between Jai Prakash Agrawal and Brahma Kumar Jutsi and one another, whereby suit of the plaintiff for specific performance of the contract has been dismissed. 2. This Court would like to first decide the preliminary objection, which was taken by the learned counsel for the appellant on 25.1.2018 to the effect that learned Additional District Judge was not justified in hearing the suit in absence of counsel for the plaintiff and suit should have been dismissed in terms of the provisions contained in Order 9 rule 8 of CPC. Though, no assistance has been extended by Shri Pawan Vijayvargiya, who had sought time to bring some case law on the subject on 25.1.2018, but since Shri R.D. Jain, learned Senior Advocate has proceeded with the arguments, this Court is duty bound to decide the objection, which was taken by the learned counsel on earlier date. 3. It was submitted by Shri Santosh Agrawal, who had appeared on 25.1.2018 that when plaintiff’s counsel was not appearing on the relevant date when arguments were heard, then learned trial Court was obliged to dismiss the suit in terms of the provisions contained in Order 9 rule 8 of CPC and was not required to decide it on merits. 4. Proceedings from the trial Court will reveal that on 5.2.2001 plaintiff and defendant were represented and case was fixed for evidence of the defendant, who was absent. Time was sought but it was objected by the plaintiff’s counsel, as a result case was fixed for final arguments. It was noted that in terms of the order passed by the High Court Bench at Gwalior in MCP No. 88/2000 on 7.8.2000 final judgment was not to be passed, therefore, case was adjourned without hearing final arguments waiting for final order of the High Court. 5. On 31.7.2001, an application under Order 6 rule 17 CPC was decided as was filed by the plaintiff and same was rejected. 5. On 31.7.2001, an application under Order 6 rule 17 CPC was decided as was filed by the plaintiff and same was rejected. Thereafter, on 3.9.2002 it was noted that a copy of the order passed in Civil Revision No. 644/2000 between Jai Kumar v. Brahmakumar and others dated 14.8.2002 has been received, according to which, revision filed by the revision petitioner has been dismissed. In view of such order, it was noted that final arguments are to be heard and judgment is to be passed. Case was fixed for final arguments on 9.9.2002. 6. On 9.9.2002, learned counsel for the plaintiff had filed an application under Order 1 rule 10 read with section 151 of CPC on which arguments were heard and it was rejected holding that earlier similar application was rejected on 6.12.1999, a fact which was admitted by the learned counsel for the plaintiff also and thereafter case was fixed for final arguments on 14.9.2002. On 14.9.2002 nobody appeared for the plaintiff till 11.10 hours and therefore, case was directed to be listed after sometime. Case was taken up between 11.25 to 12.00 noon and as nobody appeared for the plaintiff, case was fixed for judgment on 16.9.2002 after hearing arguments of the defendant. On 16.9.2002, plaintiff had again appeared through counsel and had filed an application under section 151 of CPC. On this application, arguments were heard on 17.9.2002. On 17.9.2002, the trial Court noted that plaintiff’s counsel had filed such application under section 151 of CPC seeking time to challenge the order dated 9.9.2002 before the High Court whereby an application under Order 1 rule 10 read with section 151 of CPC was rejected and such time was refused by the trial Court and judgment was passed. 7. It is important to point out that neither on 16.9.2002 and 17.9.2002, learned counsel for the plaintiff made any prayer to give him any opportunity of advancing arguments in support of his plaint/case in which evidence was already complete. Thus, despite having sufficient opportunity, plaintiff never sought time to advance arguments before the trial Court. 8. At this stage, an objection has been raised by the learned counsel for the appellant/plaintiff that the trial Court should have dismissed the suit in terms of Order 9 rule 8 of CPC for nonappearance of plaintiff’s counsel instead of deciding it on merits. 9. 8. At this stage, an objection has been raised by the learned counsel for the appellant/plaintiff that the trial Court should have dismissed the suit in terms of Order 9 rule 8 of CPC for nonappearance of plaintiff’s counsel instead of deciding it on merits. 9. Rule 8 of Order 9 CPC deals with the procedure to be followed when the plaintiff does not appear and defendant alone appears. In fact, provisions of Order 9 rule 8 CPC are to be examined in terms of the provisions contained in Order 17 rule 2 CPC, inasmuch Order 17 rule 2 CPC deals with the procedure if parties fail to appear on day fixed. Rule 2 of Order 17 CPC provides that where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit. Thus, it is apparent that rule 2 of Order 17 CPC provides for procedure to be adopted where parties fail to appear on a day fixed. Three courses are open to the Court namely; (a) to act under Order IX though it is not bound to do so; (b) to grant further adjournment ; or (c) to make such other order as it deems fit. In case of Dayaldas Suraj Prakash (FIRM) v. Brij Mohan Kumar as reported in 1985 JLJ 223 = 1985 MPLJ 177 it has been held that Rule 2 of Order 17 of CPC has to be read along with the provisions of Order 9 That order IX deals that failure of the parties to appear at the first hearing of the suit while this rule 2 of Order 17 of CPC deals with their failure to appear at the adjourned hearing of the suit. The provisions of Order IX by themselves do not apply to a case in which plaintiff or defendant has already appeared but has failed to appear at the adjourned hearing of the case. For such a case, the procedure is laid down in Order 17 rule 2 of CPC. The provisions of Order IX by themselves do not apply to a case in which plaintiff or defendant has already appeared but has failed to appear at the adjourned hearing of the case. For such a case, the procedure is laid down in Order 17 rule 2 of CPC. Since Order 17 rule 2 of CPC gives option to the Court to either pass an order under Order 9 or grant an adjournment or to make such order as it deems fit and the proceedings of the trial Court reveals that the matter was pending for passing of the final order, inasmuch as suit was filed in the year 1984 and there was stay from the High Court in Civil Revision No. 644/2000 and thereafter plaintiff’s counsel had appeared and was aware of the fact that arguments are to be advanced as pleadings were complete but did not choose to appear before the trial Court, therefore, it cannot be said that trial Court has committed any error in passing an order invoking the provisions under Order 17 rule 2 CPC, rather dismissing it in terms of the provisions contained in Order 9 rule 8 CPC. 10. Now this Court will deal with merits of the appeal. 11. Certain facts are admitted in this case that the suit property is of the ownership of the defendants situated at Risala Bazar, Morar, bearing No. 21/900 (old No. 21/779). On 29.1.1992 an agreement was executed between the plaintiff and defendant No.1 Brahm Kumar acting on behalf of self and defendant No. 2 for a sum of Rs.4,25,000/- to sell the suit property. 12. It is plaintiff’s allegation that plaintiff was given to understand by defendant No. 1 that he shall obtain concurrence of defendant No. 2 and he is entering into agreement as per authorization of defendant No. 2 and defendant No. 1 shall get the sale-deed executed by defendant No. 2 at the time of execution of such sale-deed. 13. It is also an admitted fact that a cheque of Rs.25,000/- bearing No.UTI299170 drawn at PNB, Branch Morena, was issued by the plaintiff in joint names of defendants No. 1 and 2. 14. 13. It is also an admitted fact that a cheque of Rs.25,000/- bearing No.UTI299170 drawn at PNB, Branch Morena, was issued by the plaintiff in joint names of defendants No. 1 and 2. 14. As per the plaint averments, plaintiff after few days of executing such agreement discovered that there was some element of greed in the minds of defendants and they are trying to sell such property at a higher rate, therefore, he had given notice dated 8.2.1992 and 9.2.1992 to the defendants. It is submitted that plaintiff was always ready and willing with remaining amount of Rs.4,00,000/- but defendant No. 1 returned the cheque through registered post and refused to honour the agreement, therefore plaintiff had filed a suit for declaration and permanent injunction before the Court of 3rd Civil Judge, Class I, Gwalior. That suit was dismissed and the 3rd Civil Judge, Class I, ordered that plaintiff in fact should have filed a suit for specific performance and in accordance of such direction suit for specific performance was filed. 15. It is the contention of the plaintiff that even after defendant No. 2 did not agree to sell his portion of the property but plaintiff is entitled to get sale-deed for half portion of the suit property executed in his favour from defendant No. 1 and contention of defendant No. 1 that he had paid a sum of Rs.1,000/- towards interest to the plaintiff is factually incorrect. Plaintiff submits that in fact he had paid a sum of Rs.1,000/- to defendant No. 1 for out of pocket expenses, and therefore, it cannot be said that return of cheque and Rs.1,000/- through bank draft amounted to cancellation of the agreement and there was no agreement subsisted between the parties for which suit for specific performance cannot be filed. 16. Defendant in its written statement denied all the contentions of the plaintiff and submitted that no assurance was given on the part of defendant No. 2. Defendant No.1 was not competent to execute an agreement on behalf of defendant No. 2 and such fact was brought to the knowledge of the plaintiff but the plaintiff got the agreement executed under force and compulsion and assured that he shall get defendant No. 2 ready to sign on the sale-deed. It is also submitted that defendant No. 1 had returned the cheque of Rs. It is also submitted that defendant No. 1 had returned the cheque of Rs. 25,000/- on 3rd February, 1992 and plaintiff has drawn that amount of Rs. 25,000/- from his bank and in addition had paid a sum of Rs.1,000/- towards interest which too has been received by the plaintiff, therefore, after dismissal of the suit of the plaintiff for declaration and permanent injunction before the Court of 3rd Civil Judge, Class I, against which appeal was filed before the Court of Additional District Judge, which too has been dismissed, this suit has been filed suppressing such facts, and therefore, such suit for specific performance is not maintainable. 17. Learned trial Court framed following issues : Þ¼1½ D;k izfroknh Ø-1 us izfr- Ø-2 dy vksj ls lgefr trkrs gq, 25000@& :i;s ,Mokal jkf'k ysdj 29-1-1992 dks oknxzLr Hkou ds foØ; dk vuqca/k fd;k Fkk\ ¼2½ D;k oknh us izfroknh Ø- 1 ls 25000@& :i;s e; 1000@& :i;s C;kt ds lkFk okil izkIr dj vuqca/k lekIr dj fy;k Fkk \ ¼3½ D;k izfroknhx.k us fnus'kpanz uked O;fDr dks vf/kd dher ij oknxzLr Hkou foØ; djus dh fu;r ls oknh ds lkFk gqbZ lafonk dks foQy djuk pkgrk gS \ ¼4½ D;k izfroknhx.k lafonk v/khu jkf'k ysdj lafonk dk ikyu dj foØ; djus ds fy;s ck/; gS\ ¼5½ D;k r`rh; O;- U;k;k- oxZ&1 ds ;gk¡ O;ogkj Ø- 33,@92 ds yafcr jgrs gq, izLrqr Lo:i esa nkok izpyu ;ksX; ugha gS \ ¼6½ vuqrks"k ,oa okn O;; \ß 18. The first issue was whether defendant No.1 had entered into an agreement for sale of the suit property on 29.1.92 on behalf of defendant No. 2 and had accepted an advance of Rs.25,000/-, trial Court has held that execution of agreement by defendant No.1 is proved but acceptance of amount is not proved. Similarly issue No. 2 was whether defendant No. 1 after paying a sum of Rs.25,000/- with interest of Rs.1,000/- had got the agreement cancelled, a finding has been recorded that such amounts were returned but cancellation of the agreement could not be proved. Third issue was whether defendants have entered into an agreement to sell with a person named Dinesh Chandra at a higher rate so to defeat the agreement with the plaintiff, the finding is that such issue was not found to be proved. Third issue was whether defendants have entered into an agreement to sell with a person named Dinesh Chandra at a higher rate so to defeat the agreement with the plaintiff, the finding is that such issue was not found to be proved. The next issue was whether defendants are duty bound to carry out specific performance of the contract and this issue has been. decided in negative. Similarly, next issue that whether filing of the present suit for specific performance was barred during pendency of Civil Suit No. 33-A/92 has been decided in negative. However, in totality the suit as has been filed by the plaintiff has been dismissed. 19. It is the contention of learned counsel for the appellant that judgment and decree passed by the trial Court is contrary to the law and facts of the case. It is submitted that no opportunity of hearing arguments of the plaintiff was afforded, and, therefore, the trial Court erred in dismissing the suit without hearing the arguments of the parties. It is also submitted that during pendency of the suit, an application was filed to summon the record of competent authority maintained under section 27 of the Urban Ceiling Act vide which permission was sought to sell the property in favour of Dinesh Chandra, but such application was illegally rejected and review petition was too illegally rejected by the trial Court. It is further submitted that application before the trial Court under Order 1 rule 10 CPC for impleading the purchaser Radhadevi was illegally rejected by the trial Court. It is further submitted that finding of the trial Court that though it found the agreement to have been executed but negated payment of any consideration of Rs.25,000/- is perverse and illegal. In view of such facts, it is submitted that judgment and decree passed by the Court of Special Judge (NDPS) and Additional District Judge, Gwalior, needs to be set aside. 20. Learned counsel for the appellant has placed reliance on the judgment of the Supreme Court in the case of Commissioner of Income Tax, Bombay v. Ogale Glass Works Ltd., Ogale Wadi, as reported in AIR 1954 SC 429 to submit that giving of cheque by the plaintiff amounted to giving of consideration, and therefore, findings recorded by the trial Court that no payment was proved because cheque was not encashed is perverse. In this judgment, it has been noted that a cheque unless dishonoured is payment. This judgment has referred to Benjamin on Sale, 8th Edition, P.787 : “the payment takes effect from the delivery of the bill, but is defeated by the happening of the condition, i.e. non-payment at maturity. Thus, it is submitted that unless and until cheque is dishonoured the situation will be that if cheques were accepted unconditionally as payment, then there will be implied agreement and even if the cheques were taken conditionally, the cheques not having been dishonoured but having been cashed, the payment related back to the dates of the receipt of the cheques and in view the dates of payment were the dates of the delivery of the cheques. In view of such judgment of the Supreme Court, it is submitted that since cheque was admittedly given to defendant No.1, therefore, there was a consideration for the agreement which was executed on 29.1.1992. 21. Reliance has also been placed by learned counsel for the appellant to the judgment of the Supreme Court in the case of Kammana Sambamurthy (Dead) By L.Rs. v. Kalipatnapu Atchutamma (Dead) and others as reported in (2011)11 SCC 153 to submit that appellant was entitled at least to half portion in the suit property belonging to defendant No. 1 to get specific performance of the agreement to the extent of such share of the property. It is submitted that where agreement of sale was in respect of entire property but it later appeared that vendor executant of agreement had only half-share and his wife, who was not executant, held remaining half-share in property and she had not given any authority to her husband to sell it, vendee would be entitled to decree for specific performance of agreement only to the extent of half-share of vendor, though this was not a case which fell under section 12 of the Specific Relief Act. In para 4 of the aforesaid judgment, it has been noted that the vendor in the agreement represented that he was absolute owner of the property, and therefore, such finding in regard to eligibility of suit for specific performance to the extent of share of the vendor has been passed by the Hon’ble Supreme Court. 22. In para 4 of the aforesaid judgment, it has been noted that the vendor in the agreement represented that he was absolute owner of the property, and therefore, such finding in regard to eligibility of suit for specific performance to the extent of share of the vendor has been passed by the Hon’ble Supreme Court. 22. Reliance has also been placed on the judgment of the Supreme Court in the case of Sardar Singh v. Krishna Devi (Smt.) and another, as reported in (1994) 4 SCC 18 , wherein it has been held that grant of decree for specific performance is discretionary. Emphasis has been placed on para 14 and 17 of such judgment wherein it has been held that though grant of relief of specific performance is discretionary, the Court is duty bound to take into consideration circumstances in each case the conduct of the parties and the respective interest under the contract. Similarly, in para 17 it has been held that if the property is divisible and the appellant being not a consenting party to the contract, equity and justice demand partial enforcement of the contract, instead of refusing specific performance in its entirety which would meet the ends of justice. 23. Reliance has also been placed on the judgment of the Supreme Court in the case of Etwari Devi and others v. Parvati Devi as reported in 2006(2) MPWN 17= (2006)2 SCC 327 , wherein reliance has been placed on para 4 wherein it has been held that “there is no quarrel with the proposition that in a suit for specific performance of the contract, the plaintiff must prove that he was ready and willing to perform his part of the contract continuously between the date of the contract and the date of hearing of the suit. But the finding that plaintiff has not proved his capacity to perform his part of the contract as he was not even ready to deposit the money in terms of the trial Court’s order is factually wrong. It appears that no such plea was raised by the defendant before the first appellate Court”. 24. But the finding that plaintiff has not proved his capacity to perform his part of the contract as he was not even ready to deposit the money in terms of the trial Court’s order is factually wrong. It appears that no such plea was raised by the defendant before the first appellate Court”. 24. Similarly, reliance has been placed on decision of the Supreme Court in the case of Nathulal v. Phoolchand as reported in [ (1969)3 SCC 120 ], wherein the ratio is that in considering whether a person is willing to perform his part of contract sequences under which the obligations under the contract are to be performed must be taken into account. If under the terms of the contract the obligations of the parties have to be performed in a certain sequence, one of the parties to the contract cannot require compliance with the obligations of the other party without in the first instance, performing his own part of the contract which in sequence of obligations is performable by him earlier. 25. Reliance has also been placed on the judgment of the Supreme Court in the case of Motilal Jain v. Ramdasi Devi (Smt.) and others as reported in (2000)6 SCC 420 , wherein it has been held that an averment of readiness and willingness in the plaint is not a mathematical formula which should only be in specific words. If the averments in the plaint as a whole do clearlyindicate the readiness and willingness of the plaintiff to fulfill his part of the obligations under the contract which is the subjectmatter of the suit, the fact that they are differently worded will not militate against the readiness and willingness of the plaintiff in a suit for specific performance of contract for sale. 26. Reliance has also been placed on the judgment of the Supreme Court in the case of Bibi Jaibunisha v. Jagdish Pandit and others, as reported in (1997)4 SCC 481 . 26. Reliance has also been placed on the judgment of the Supreme Court in the case of Bibi Jaibunisha v. Jagdish Pandit and others, as reported in (1997)4 SCC 481 . The ratio of this judgment is that there was no consideration by the Courts below as to whether the appellant had capacity to pay the money as offered, and therefore, the findings recorded by the trial Court were set aside and on an offer to pay the amount in lump sum for reconveyance deed to be executed, Supreme Court directed the respondent to produce the title deeds before the Court and reconvey the property in favour of the appellant. Further it was directed that costs of execution and also the cost of the stamp duty and registration fee will be borne by the appellant. 27. Reliance has been placed on the judgment of this High Court in the case of Godavari Bai v.Pandit and others, as reported in 2004(1) MPLJ 502 , wherein considering the aspect of readiness and willingness, it has been held that when no plea was taken by the defendant in the written statement and no issue was framed by the trial Court, then such plea of readiness and willingness could not have been adjudicated. 28. Reliance has also been placed on the judgment of this High Court in the case of Zubeda and others v. Najma Afzal, as reported in 2008(1) MPLJ 638 , wherein in para 10 this aspect of readiness and willingness has been dealt with and it has been held referring to Supreme Court judgment in the case of N.P.Thirugnanam v. R.Jagan Mohan Rao as reported in AIR 1996 SC 116 that 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 filing the suit along with other attending circumstances. 29. Learned counsel for the appellant has also placed reliance on the judgment of the Supreme Court in the case of Vidhyadhar v. Manikikrao and another as reported in AIR 1999 SC 1441 submitting that as per section 114 of the Evidence Act if a party to the suit is not entering the witness box, then adverse inference should be drawn against such party. Reliance has also also been placed on the judgment of the Supreme Court in the case of Adivekka and others v. Hanamavva Kom Venkatesh (deceased by LRs.) and another reported in AIR 2007 SC 2025 , It is also submitted that power of attorney was not authorized and cannot be a witness if he has no personal knowledge of the transaction, and therefore, prays for setting aside the judgment and allowing the appeal. 30. Learned counsel for the respondents submits that suit for specific performance cannot be sought for half portion of the property as agreement was for the complete property. It is submitted that after return of the sale consideration, which is an admitted fact, so also costs in the form of interest, which has been encashed by the plaintiff, another admitted fact, no agreement subsisted, specific performance of which has been sought by the appellant. It is further submitted that clause 7 of the agreement (Ex.P-1) clearly stipulates that for any defect of the title or for any other reason, party No. 1 fails in executing saledeed, then party No. 2 shall be entitled to recover the paid consideration with interest and damages. Drawing attention to this clause of the agreement, which is reproduced herein below : Þ;fn fdlh LokfeRo dh =qfV ds dkj.k vFkok vU; fdlh dkj.k i{kdj Øekad 1 jftLVªh o;ukek lEikfnr djus esa vleFZk jgrk gS rks i{kdkj Øekad 2 dks laiw.kZ /kujkf'k e; C;kt o gtkZ&[kpkZ olwy djus dk vfèkdkj gksxkß it is submitted that after return of the cheque and payment of interest and damages in the form of Rs.1000/- through demand draft, agreement did not subsist and plaintiff was not entitled to file suit for specific performance. 31. Learned counsel for the defendants also submits that in fact vide Ex.P-12 a new offer was extended by the plaintiff to the defendant. He had categorically mentioned in Ex.P-12 that if defendant has received higher offer, then he should intimate the same to the plaintiff and should not become greedy. With such hope of communication of such higher offer, he had re-transmitted account payee cheque of Rs. 25,000/- in favour of the defendant. This communication is dated 9.2.1992. 32 Thus, it is submitted that with this new offer earlier agreement came to an end, and therefore, specific performance of the earlier agreement could not have been sought by the appellant. With such hope of communication of such higher offer, he had re-transmitted account payee cheque of Rs. 25,000/- in favour of the defendant. This communication is dated 9.2.1992. 32 Thus, it is submitted that with this new offer earlier agreement came to an end, and therefore, specific performance of the earlier agreement could not have been sought by the appellant. It is also submitted that even if defendant has not entered into witness box, the plaintiff shall require to stand on his own legs. It is further submitted that C.S.Jutsi, defendant No. 2, has died and his legal heirs have not been brought on record. 33. Reliance has been placed on the judgment of the Supreme Court in the case of Jayakantham and others v. Abaykumar as reported in 2017(1) MPWN 80 = (2017)5 SCC 178 , wherein referring to section 20(2) of the Specific Relief Act, 1963, it has been held that following are the cases in which the Court may properly exercise discretion not to decree specific performance - (a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or (b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; or (c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance. 34. Reliance has also been place on the judgment of the Supreme Court in case of Nahar Singh v. Harnak Singh, as reported in (1996) 6 SCC 699 , wherein it has been held that if property is not identifiable, no decree of specific performance can be granted. 35. Reliance has also been placed on the judgment of Delhi High Court in case of M/s. Mirahul Enterprises and others v. Mrs. Vijaya Sirivastava, as reported in AIR 2003 Delhi 15, wherein referring to section 10 of the Contract Act, it has been held that section 10 of the contract Act defines as to what agreements are contracts. 35. Reliance has also been placed on the judgment of Delhi High Court in case of M/s. Mirahul Enterprises and others v. Mrs. Vijaya Sirivastava, as reported in AIR 2003 Delhi 15, wherein referring to section 10 of the Contract Act, it has been held that section 10 of the contract Act defines as to what agreements are contracts. All agreements are contracts, if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. A true contract thus requires the agreement of the parties freely made with full knowledge and without any feeling of restraint. 36. Placing reliance to the judgment of Supreme Court in case of Ganesh Shet v. Dr.C.S.G.K. Setty, as reported in AIR 1998 SC 2216 , it has been held that if contract on which relief is based is found to be not a concluded contract, relief cannot be given on the basis of subsequent agreement. 37. Reliance has also been placed to the decision of this Court in case of Bapulal Pawar v. Smt. Durgibai and another, as reported in 1997(2) Vidhi Bhasvar 154, wherein it has been held that in terms of section 44 of the Transfer of Property Act in case of joint property no specific portion can be sold by any of the coowners and in case of agreement of sale in favour of plaintiff, plaintiff has to seek partition first and thereafter can file suit for specific performance. 38. The issue which emerges in this first appeal is two fold; whether the agreement dated 29.1.1992 in terms of the provisions contained in Clause 7 of the agreement after performance of return of cheque by the defendant in favour of the plaintiff, which appears to be admitted in terms of Ex.P-12 and payment of cost and interests by way of demand draft for Rs. 1000/-, could not have been enforced, especially when there was an un- concluded contract as sought to be established in terms of offer extended in terms of narration in Ex. P-12 offering higher amount of sale consideration and reconveying the same cheque as a consideration for new agreement. 39. 1000/-, could not have been enforced, especially when there was an un- concluded contract as sought to be established in terms of offer extended in terms of narration in Ex. P-12 offering higher amount of sale consideration and reconveying the same cheque as a consideration for new agreement. 39. When judgments cited by the appellant are viewed in this light, then it is apparent that law laid down by the Supreme Court in the case of Commissioner of Income Tax (supra), to the effect that cheque unless dishonoured is payment is to be extended to the point that where a cheque return will also constitute payment as has been discussed above and admitted by the plaintiff vide Ex.P-12. Once the cheque was returned in terms of the provisions contained in para 7 of the agreement (Ex.P-1), then the cheque was no more a consideration, and therefore, the findings recorded by the trial Court cannot be held to be perverse. 40. The ratio of the judgment in the case of Kammana Sambamurthy (supra), that a vendee would be entitled to decree of specific performance of contract only to the extent of half-share of vendor as vendor of half of the share i.e. wife was not executant of the agreement is not applicable to the facts and circumstances of the present case inasmuch as in para 4 Supreme Court has noted that vendor in the case of Kammana Sambamurthy represented himself to be absolute owner of the property and in that context, it has been held that even if the vendor who represented himself to be absolute owner of the property is found to be owner of half of the property, then plaintiff is entitled to seek specific performance of the agreement to the extent of share of the vendor in the suit property. But in the present case, there is no such misrepresentation, on the contrary, para 7 of Ex.P-1, agreement, as reproduced above, clearly demonstrates that there is a clause that in case of any hardship if agreement could not be executed, then party No. 2 i.e. the plaintiff will be entitled to seek recovery of the consideration paid along with interest and damages. Admittedly, such consideration was already returned on 3.2.1999 and thereafter a draft of Rs.1,000/- was paid and encashed by the plaintiff in the shape of costs, interests and damages. 41. Admittedly, such consideration was already returned on 3.2.1999 and thereafter a draft of Rs.1,000/- was paid and encashed by the plaintiff in the shape of costs, interests and damages. 41. Ratio of the judgment in the case of Sardar Singh (supra), too is not applicable inasmuch as no evidence has been led by the plaintiff that house was divisible, and therefore, partial enforcement of the contract was possible against defendant No. 1. When this too is read in the context of stipulation in the agreement as reproduced above, it will be apparent that in absence of evidence to show that suit property was divisible and also in the light of stipulation in the agreement Ex.P-1, ratio of the judgment in the case of Sardar Singh (supra), is not applicable to the facts and circumstances of the case. In the present case, appellant’s counsel has placed reliance on several decisions in regard to the aspect of readiness and willingness of the plaintiff. In fact this was not an issue before the trial Court, and therefore, trial Court has also not recorded any finding and this Court in this first appeal is also not required to delve into such aspect of readiness and willingness, therefore, reliance on such judgments is superfluous. 42. As far as reliance on the judgment of the Supreme Court in the case of Vidhyadhar (supra), in regard to the aspect of section 114 of the Evidence Act is concerned, it is true that a party not entering into the witness box has to suffer the consequences, but at the same time, it is equally true that in any case plaintiff is required to stand on his own legs and cannot take advantage of the weakness of the opposite party. A party claiming equitable relief is required to show that under the facts and circumstances of the case, such party is entitled to claim relief of specific performance. This Court is of the opinion that in the light of the law laid down by the Supreme Court in the case of Jayakantham (supra) when clause 7 of the agreement, Ex.P-1, is read, it is apparent that it is a fit case in which decree of specific performance should not have been passed as has been done by the trial Court. Once the cheque was returned, compensation was paid which was encashed, a new offer was made vide Ex.P-12, and such offer was not accepted, then the only course open to the plaintiff so to have reconciled the fact that there subsists no contract between the parties and he is not entitled to any relief, but on the contrary plaintiff first unsuccessfully filed a suit for declaration and permanent injunction and thereafter when it was dismissed filed first appeal and in the appeal when observation was made that suit for specific performance is to be filed, filed suit for specific performance but has failed to point out that once the contract has failed and there existed no concluded agreement between the parties as has been held by the Supreme Court in the case of Ganesh (supra), as referred to by Delhi High Court in the case of M/s. Mirahul Enterprises (supra), whether he is entitled to relief on the basis of second agreement ? Thus, this Court is of the opinion that trial Court has rightly dismissed the suit for specific performance and impugned judgment and decree does not call for any interference in the first appeal as trial Court has rightly discussed and appreciated the evidence on record. The appellant has failed to substantiate the plea that in his non- appearance the suit should have been dismissed for want of prosecution under Order 9 rule 8 of CPC as has been decided above. In fact, every tactics available in the law book was adopted by the plaintiff to get the suit adjourned. As far as plea of the appellant that application under Order 1 rule 10 CPC was not allowed is concerned, that plea cannot be taken again inasmuch as in the first round of litigation after dismissal of such application in 1999 plaintiff had already travelled to High Court and could not get any substantial relief, and therefore, after dismissal of such petition, this issue could not have been raised again. Thus, the appeal fails and is dismissed.