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2019 DIGILAW 1574 (KAR)

Rehana Begum v. C. Venkateshappa

2019-07-04

K.S.MUDAGAL

body2019
JUDGMENT : K.S. Mudagal, J. This second appeal of defendant No.1 arises out of the judgment and decree dated 23.07.2018 in Regular Appeal No.95/2017 passed by the Senior Civil Judge & Principal JMFC., K.G.F. 2. By the impugned judgment and decree, the First Appellate Court allowed the appeal of the plaintiff, reversed the judgment and decree dated 14.9.2017 in O.S.No.393/2011 passed by the Principal Civil Judge & Addl. J.M.F.C., K.G.F., and decreed the suit of the plaintiff for specific performance of agreement of sale on payment of additional consideration of Rs.1,00,000/-. 3. Respondent No.1 herein was the plaintiff. Appellant was defendant No.1 and respondent No.2 was defendant No.2 in O.S.No.393/2011. For the purpose of convenience, parties will be referred to henceforth as per their rankings before the Trial Court. 4. Subject matter of the suit was the house property bearing V.P.Katha No.151/1 measuring East to West 36 feet and North to South 15 feet of New Town, Bethamangala, Bangarpet Taluk. 5. Initially plaintiff filed suit against the first defendant. Defendant No.2 is the younger sister of the first defendant. Pending the suit, defendant No.1 entered into a registered agreement of sale with defendant No.2 as per Ex.P9 on 18.04.2011 in respect of the suit schedule property. Therefore, she was impleaded in the suit subsequent to sale. Second defendant did not appear and contest the suit. 6. Case of the plaintiff in brief is as follows: That defendant No.1 entered into an agreement of sale as per Ex.P1 on 27.10.2009 for a consideration of Rs.1,50,000/- and received Rs.1,00,000/- as the earnest money. Defendant No.1 agreed to execute the sale deed by receiving balance consideration of Rs.50,000/- within eleven months. Later on 28.4.2011 further sum of Rs.35,000/- was paid, however, defendant No.1 failed to perform her part of contract. Notice as per Ex.P7 was issued to defendant No.1 on 15.06.2011 calling upon her to perform her part of contract, which she did not comply. He was always ready and willing to perform his part of contract and thus claimed for decree for specific performance of the agreement. 7. Defendant No.1 denied the execution of the agreement of sale and contended that the plaintiff took her signatures on blank papers in the pretext of providing her cooking gas service and manipulated the document. She denied the receipt of advance consideration and other terms of the agreement. 7. Defendant No.1 denied the execution of the agreement of sale and contended that the plaintiff took her signatures on blank papers in the pretext of providing her cooking gas service and manipulated the document. She denied the receipt of advance consideration and other terms of the agreement. She further contended that the suit property was the only property and if suit is decreed, she becomes houseless. 8. On the basis of such pleadings, the trial court framed the following issues: 1. Whether the plaintiff proves that the defendant No.1 has executed a registered sale agreement dated 27.10.2009 for a consideration of Rs.1,50,000/- agreeing to sell the suit schedule property in favour of the plaintiff? 2. Whether the plaintiff proves that the defendant No.1 has received Rs.1,00,000/- and Rs.35,000/- towards part performance of the contract? 3. Whether the plaintiff proves that he is always ready and willing to perform his part of the contract? 4. Whether the plaintiff proves that the registered sale agreement executed by defendant No.1 on 18.4.2011 in favour of the second defendant is not binding on the plaintiff? 5. Whether the plaintiff is entitled for the reliefs claimed? 6. What order or decree? 9. The parties adduced evidence. On behalf of the plaintiff, PWs-1 to 3 were examined and Exs.P1 to P9 were marked. On behalf of the defendants, DWs-1 and 2 were examined and Exs.D1 and D2 were marked. 10. The trial court after hearing the parties partly decreed the suit on the following grounds: (i) The execution of agreement of sale Ex.P1, receipt of advance consideration and terms of the agreement were proved; (ii) The readiness and willingness on the part of the plaintiff to perform his part of contract was proved. (iii) There is appreciation of the value of the property in course of time, therefore, sale consideration agreed between the parties is inadequate. Thus the prayer for specific performance has to be rejected and plaintiff is entitled to decree for refund of earnest money of Rs.1,35,000/- with interest @ 6% per annum payable by defendant No.1 and decreed the suit accordingly. 11. Aggrieved by the rejection of his claim for specific performance, plaintiff challenged the trial court's judgment before the Senior Civil Judge & Principal JMFC., K.G.F., in R.A.No.95/2017. 11. Aggrieved by the rejection of his claim for specific performance, plaintiff challenged the trial court's judgment before the Senior Civil Judge & Principal JMFC., K.G.F., in R.A.No.95/2017. The first appellate court by the impugned judgment and decree reversed the decree of the trial court regarding rejection of the prayer for specific performance. 12. The first appellate court further ordered that in view of the appreciation of the value of the property, the plaintiff shall pay an additional consideration of Rs.1,00,000/-. 13. Aggrieved by that, the first defendant is before this Court in this appeal. Sri.Y.R.Sadashiva Reddy, learned Senior Counsel appearing for Sri.Rahul S.Reddy for the appellant submits that though the first defendant pleaded hardship, the first appellate court did not consider that in granting decree for specific performance, therefore, that becomes a substantial question of law in this case. In support of his contentions, learned Counsel relies on the following judgments: (i) Shamsher Singh 7 Ors. vs. Rajinder Kumar & Ors., (2014) AIR SC 2253; (ii) Damacherla Anjaneyulu and Another vs. Damacheria Venkata Seshaiah and another, (1987) AIR SC 1641; & (iii) S.Kugashankar vs. Subhash Chand Goel and Others, (2006) ILR(Kar) 3689. 14. Per contra, Sri.Papi Reddy, learned Counsel for the plaintiff/respondent No.1 seeks to support the impugned judgment on the following: (i) First defendant's contention that if the suit schedule property is sold she becomes houseless is falsified by her own conduct of entering into Ex.P9 the registered agreement of sale with defendant No.2 pending the suit; (ii) There is no substantial question of law in the case. 15. This being a second appeal under Section 100 CPC can be admitted for hearing only if the appellant makes out a substantial question of law in the case. On the question of facts, the first appellate court is the last court. The Hon'ble Supreme court in Gurnam Singh (Dead) by LRs & Others vs. Lehna Singh (Dead) by LRs., 2019 AIR SC 1441 while considering the powers of the High Court under Section 100 CPC to substitute its opinion with that of the first appellate court, in para-13.1 of the judgment held as follows: "13.1 . . . . . . . . . . . . . . . . . . . . . As per the law laid down by this Court in a catena of decisions, the jurisdiction of High Court to entertain second appeal under Section 100 CPC after the 1976 Amendment, is confined only when the second appeal involves a substantial question of law. The existence of 'a substantial question of law' is a sine qua non for the exercise of the jurisdiction under Section 100 of the CPC. As observed and held by this Court in the case of Kondiba Dagadu Kadam, (1999) AIR SC 2213 (supra), in a second appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous being: (i) Contrary to the mandatory provisions of the applicable law; OR (ii) Contrary to the law as pronounced by the Apex Court; OR (iii) Based on in-admissible evidence or no evidence." (emphasis supplied) 16. In the light of the above judgments, this Court has to see now whether the judgment and decree of the first appellate court is contrary to any applicable provisions of law, any precedents rendered by the Hon'ble Supreme Court or the judgment is based on inadmissible evidence or no evidence. 17. Though the execution of agreement of sale was disputed, the trial court on appreciating the evidence held that execution of agreement of sale and readiness and willingness on the part of the plaintiff to perform his part of contract were proved. The defendants did not challenge the said judgment and decree before the first appellate court, either by filing any appeal or cross-objections. Therefore, those findings attained finality. 18. Then the only short question is whether the first appellate court, in reversing the judgment and decree of the trial court and granting the relief for specific performance acted contrary to any of the norms laid down in Gurnam's Singh's case. 19. The grant of relief for specific performance is a discretionary relief and Court may not exercise that discretion, if any of the grounds specified in Section 20(2) of the Specific Relief Act, 1963 are proved. Even rejection of the relief of specific performance contemplated under Section 20(2) is discretionary and not mandatory. 20. 19. The grant of relief for specific performance is a discretionary relief and Court may not exercise that discretion, if any of the grounds specified in Section 20(2) of the Specific Relief Act, 1963 are proved. Even rejection of the relief of specific performance contemplated under Section 20(2) is discretionary and not mandatory. 20. The only ground set up by the first defendant was that the suit property is her only house property and if that is sold, she becomes houseless which causes her hardship. 21. Section 20(2)(b) of the Specific Relief Act reads as follows: "20. Discretion as to decreeing specific performance.- 1. ........... 2. The following are cases in which the court may properly exercise discretion not to decree specific performance:- (a) ......... (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) . . . . . ." Thus, it is clear that the hardship pleaded by the defendants should not have been foreseen by the defendants at the time of the agreement of sale and not her perception at the stage of filing of the written statement. 22. Further, at one breath, defendant No.1 contended that if relief of specific performance is granted, she becomes houseless, but her evidence as well as Ex.P9 abundantly showed that after the institution of the suit, under Ex.P9 on 18.4.2011 she again agreed to sell the same property to defendant No.2. That itself falsifies her case of hardship. The first appellate court appreciating this fact and evidence in detail rejected the contention of hardship and granted the decree. 23. In Shamsher Singh's case and S.Kugashankar's case (supra), the question that fell for consideration was regarding Section 20(2)(a) of the Specific Relief Act, i.e., agreement conferring an unfair advantage on the defendant. That was not the case of the defendants here. 24. In Damacherla Anjaneyulu's case (supra), based on the facts of the said case, defendant was asked to compensate the plaintiff by paying some additional sum and decree for specific performance was rejected. No ratio was laid down in the said judgment. Therefore, the said judgments relied upon by appellant's Counsel are not applicable to the facts of the present case. 25. No ratio was laid down in the said judgment. Therefore, the said judgments relied upon by appellant's Counsel are not applicable to the facts of the present case. 25. Though there was no defence of the agreement conferring unfair advantage over the plaintiff, the first appellate court considering the appreciation of the value of the property, while granting decree for specific performance directed the plaintiff to pay additional consideration of Rs.1,00,000/-. 26. Under these circumstances, it cannot be said that first appellate court failed to exercise its discretion in accordance with Section 20(2)(a) and (b) of the Specific Relief Act. 27. This Court does not find any substantial question of law in the matter to admit the appeal. Therefore, the appeal is dismissed with costs. In view of disposal of the appeal, I.A.No.1/2018 stands disposed of.