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2020 DIGILAW 214 (AP)

Mulla Nowman v. Mulla Mohammad Ismail

2020-03-10

M.VENKATA RAMANA

body2020
JUDGMENT : This second appeal is preferred under Section 100 CPC against the decrees and judgments of the Courts below, recording concurrent findings. 2. The defendant is the appellant. Respondent is the plaintiff. Since both the learned counsel for the appellant and the respondent requested this Court to dispose of this matter at the admission stage itself, which in fact has not been admitted so far, now it is being disposed of by this judgment. 3. The respondent laid the suit for specific performance of contract under an agreement for sale dated 28.01.2009, to direct the appellant to execute a regular sale deed and to register, upon receiving balance sale consideration and in the event of failure of the appellant to do so, to get the sale deed executed through process of the Court. Alternatively, relief of refund of Rs.1,58,208/-with future interest at 24% per annum thereon, was also sought. 4. For the purpose of this judgment, it is desirable to consider the case set up by both the parties in their respective pleadings, viz., in the plaint and in the written statement before adverting to effect of evidence let-in by them and if they require admission of the second appeal, making out substantive questions of law for determination under Section 100 CPC. 5. The respondent stated in his plaint that the appellant agreed to sell the plaint schedule plot for Rs.2,76,800/-on 28.01.2009 in his favour and upon receiving an advance of Rs.70,000/-towards sale consideration, he executed an agreement for sale there for. It was the further case of the respondent in the plaint that the appellant had agreed to receive balance sale consideration within one year from the date of agreement, i.e., on or before 28.01.2010 while further agreeing to get the plaint schedule site measured at his expense and assure that there is no litigation or dispute in respect thereof. 6. It was the further case of the respondent that on 08.04.2009, the appellant received Rs.60,000/-towards part-payment, out of the balance sale consideration and made an endorsement on the reverse of the agreement for sale. 6. It was the further case of the respondent that on 08.04.2009, the appellant received Rs.60,000/-towards part-payment, out of the balance sale consideration and made an endorsement on the reverse of the agreement for sale. The respondent further averred that he was always ready and willing to perform his part of contract at all relevant times and in spite of his demands to perform his part of contract under the agreement for sale, the appellant failed, including refusing to receive the balance sale consideration on 25.01.2010, which led him to institute the suit. 7. Resisting this claim of the respondent, the appellant filed a written statement, admitting that he agreed to sell the plaint schedule site to the respondent for Rs.2,76,800/-, received advance sale consideration of Rs.70,000/-and executed an agreement for sale on 28.01.2009 subject to condition that the respondent should pay the balance sale consideration within an year there from. While asserting that he was always ready and willing to perform his part of contract, he averred further that when he approached the respondent on 08.04.2009 and requested to pay the balance sale consideration offering to execute a regular sale deed in his favour, the respondent was not ready, who, however paid Rs.60,000/-only while promising to pay the balance sale consideration on or before 28.01.2010. Denying that the respondent was ready and willing to perform his part of contract to pay the balance sale consideration, denying that he ever refused to perform his part of contract nor he was approached by the respondent for such purpose nor that he committed breach of its terms and further denying that there was any demand for such purpose from the respondent, he averred that the respondent stood disentitled to seek specific performance of the agreement for sale. He also denied that the respondent is entitled for refund of sale consideration in the circumstances, for want of cause of action. He also questioned the status of the wife of the plaintiff to represent him in the suit under the Special Power of Attorney. 8. Basing on the above pleadings, the trial Court settled the following issues for trial: 2. Whether the plaintiff is entitled for Specific Performance of agreement of sale? 3. Whether the plaintiff is entitled for alternative relief of refund of amount? 4. To what relief?” 9. 8. Basing on the above pleadings, the trial Court settled the following issues for trial: 2. Whether the plaintiff is entitled for Specific Performance of agreement of sale? 3. Whether the plaintiff is entitled for alternative relief of refund of amount? 4. To what relief?” 9. At the trial, the wife of the respondent was examined as P.W.1, her brother as P.W.2 and the respondent relied on Ex.A1 to Ex.A5. Since the respondent then was not in this country and was in abroad, on the strength of Ex.A1 Special Power of Attorney, his wife represented him in the suit and also deposed. 10. The appellant examined himself as D.W.1 and no documents were marked on his behalf, at the trial. 11. Basing on the material, learned trial Judge observed that the suit was not premature though was instituted on 27.01.2010 since the time stipulated under the agreement for sale was to lapse on 28.01.2010, since the appellant failed to comply with the terms of agreement for sale, in getting the land measured. The trial Court also held that the respondent was always ready and willing to perform his part of contract, who was ready with necessary cash for such purpose and took into consideration show of cash of Rs.1,50,000/-by P.W.1 when she was in the box, in the course of trial and also considering that the appellant failed to issue a notice to the respondent demanding to pay the balance sale consideration while expressing his ready and willingness to execute the sale deed, ultimately decreed the suit for specific performance in favour of the respondent accepting his version. 12. In the first appeal, learned appellate Judge considered the material on record, reevaluated the evidence and concurred with the findings of the learned trial Judge, holding that the trial Court was right in decreeing the suit in favour of the respondent and thus the first appeal was dismissed. 13. 12. In the first appeal, learned appellate Judge considered the material on record, reevaluated the evidence and concurred with the findings of the learned trial Judge, holding that the trial Court was right in decreeing the suit in favour of the respondent and thus the first appeal was dismissed. 13. Sri G.V.Shivaji, learned counsel for the appellant adverting to the pleadings as well as the evidence on record, strenuously contended that there is no proof worth acceptance, to hold that the respondent was always ready and willing to perform his part of contract and who did not issue a notice before institution of the suit expressing his readiness and willingness to perform her part of contract subject to the appellant getting the land measured and that there is no evidence that the appellant was unwilling to execute a sale deed and to perform his part of contract. Thus, it is contended that there is no compliance with Section 16(c) of Specific Relief Act, 1963 (as un-amended). It is further contended that mere proof of agreement for sale and the contract there under and evidence relating to ready and willingness on the part of the appellant are not sufficient to exercise discretion in terms of Section 20 of Specific Relief Act, 1963 (as unamended). Thus, learned counsel requested that subject to framing appropriate substantive questions in respect thereon as is adverted to the grounds in the second appeal, the same may be allowed. 14. Sri P.Veera Reddy, learned Senior Counsel appearing for Sri K.Murali Krishna, learned counsel for the respondent, referring to the material and evidence on record contended that the entire case is based on fact situation and that there is no question of any substantive law involved. Supporting the reasons assigned by the trial Court as well as the first appellate Court, learned Senior Counsel contended that on the material on record, since there is sufficient proof to attract Section 16(c) of Specific Relief Act and exercise of discretion being in tune with Section 20 of Specific Relief Act, it is contended that there is neither a substantive question of law involved in this appeal nor deserves any consideration. Thus stating, it is requested to dismiss the second appeal. 15. The substantive questions of law referred to in the grounds of memorandum of appeal are as under: “1. Whether the suit is premature? Thus stating, it is requested to dismiss the second appeal. 15. The substantive questions of law referred to in the grounds of memorandum of appeal are as under: “1. Whether the suit is premature? “(a) Whether both the courts below are right in coming to conclusion to decree the suit. Especially when there is no notice issued? (b) Whether the courts below are right in decreeing the suit though the suit is filed one day prior to the date of one year for registration which is the time fixed in the agreement? (c) Whether the Courts below have appreciated the evidence in true perspective? (d) Whether the suit instituted by the respondent/plaintiff without issuing any notice as required under Section 16(c) of the Specific Relief Act?” 16. Questions ‘a’ & ‘d’ relate to the fact situation of failure to issue notice by the respondent before institution of the suit. Therefore, both of them need to be considered together, to consider if there are substantial questions of law involved in this case, along with two other questions raised. 17. The factual background with reference to the questions referred to above by the appellant as substantive questions of law within the scope of Section 100 CPC, needs consideration at this stage to the extent required only for limited purpose of appreciating whether in the circumstances Section 100 CPC is attracted. 18. The property in dispute is described in the plaint schedule as under: “The open place is situated within the village limits of Kanala, Nandyal, Nandyal Sub-Registration District, Kurnool Registration District within the following particulars:- Survey No. Extent (1) 964/1 Pyki Ac.0.05 cents 640 square links (2) 964/1 Pyki Ac.0.10 cents 250 square links Boundaries:- East Subramanyam’s land, West 12 feet width of rastha, North Arabbi Madarsa’s open place, South Gadvala @ Khatvala Mahaboob Sab’s land.” 19. It is an extent of Ac.0.15 cents of land. It belonged to the appellant. He agreed to sell the same for Rs.2,76,800/-on 28.01.2009 in favour of the respondent subject to such terms including getting this extent measured and to assure the respondent that this site was not a subject matter of any litigation or dispute. Holding such promise, he entered into a contract under Ex.A2 agreement for sale upon receiving an advance amount of Rs.70,000/-. The terms of contract as seen from the material on record, are not in dispute. Holding such promise, he entered into a contract under Ex.A2 agreement for sale upon receiving an advance amount of Rs.70,000/-. The terms of contract as seen from the material on record, are not in dispute. Execution of Ex.A2 agreement for sale by the appellant in favour of the respondent, is not in dispute. 20. It is also not in dispute that there was a part payment of Rs.60,000/-by the respondent to the appellant, out of the sale consideration payable on 08.04.2009 and therefore he also made an endorsement on Ex.A2 agreement for sale under Ex.A3. 21. It was the case of the appellant at the trial that he demanded the respondent on 08.04.2009 to pay the entire balance sale consideration expressing his ready and willingness to execute a sale deed and that the respondent had come forward for such purpose. Thus, he claimed that there was failure on the part of the respondent to perform his part of contract there-under and that, he was not ready and willing to perform his part of contract. 22. It is the contention now on behalf of the appellant that the respondent did not call upon the appellant to perform his part of contract showing his readiness and willingness to abide by the terms of Ex.A2, issuing a notice before the institution of the suit. 23. The version of the respondent in this respect was that Ex.A2 incorporated an obligation, for measuring the land and to handover the site free from disputes or litigation and that there was no assurance from the appellant in respect thereof. 24. With reference to issuing a demand notice by the respondent to the appellant, it is a contention advanced for the first time in this second appeal. It was never the version of the appellant at the trial or in the first appellate Court. Nor there was any pleadings in the written statement in respect thereof nor supporting evidence from the appellant as D.W.1 nor any suggestion was given to P.W.1 and P.W.2 in this respect, on his behalf. Therefore, when it predominantly relates to a question of fact, it cannot be permitted to be adverted to in this second appeal, for the first time. 25. Therefore, when it predominantly relates to a question of fact, it cannot be permitted to be adverted to in this second appeal, for the first time. 25. Even otherwise, in view of the contention of the respondent referring to the terms of Ex.A2, whereby the appellant was under an obligation to perform his reciprocal promise, as stated above, when his pleadings as well as the evidence are completely silent, the version of the appellant that the respondent was not ready and willing to perform her part of contract, by the date of Ex.A3 endorsement, viz., 08.04.2009, cannot be accepted nor can be believed. In fact, payment of Rs.60,000/-on that day towards balance sale consideration, acceptance of the same silently by the appellant without raising any protest indicated his conduct and to hold that he subjected himself to the stand of the respondent. In fact, it should have been the obligation of the appellant to issue a notice to the respondent in those circumstances, calling upon him to perform his part of contract within the stipulated time, pointing out that the time was the essence of the contract and that in the absence of payment of balance sale consideration by the agreed date, the contract would get rescinded. 26. As seen from the versions of both the parties, it appears that they did not advert to the time being the essence of contract. 27. In this factual backdrop, when the testimony of P.W.1 supported by P.W.2 clearly indicated that the respondent was always ready and willing to perform his part of contract, in compliance of Section 16 (c) of Specific Relief Act, it cannot be stated that this question involved any substantial issue of law for determination in this appeal. 28. Filing a suit on 27.01.2010 when the date fixed under Ex.A2 for performance was to lapse on 28.01.2010, in the circumstances, strengthens the case of the respondent that he being ready and willing to perform his part of contract under Ex.A2 when the efforts of P.W.1 failed to get a regular sale deed executed in terms thereof, demonstrating his conduct. 29. Thus, the facts and circumstances as are available on record, did not make out any substantive question of law for determination in the second appeal. Neither there was any delay nor reflection of any indifference on the part of the respondent to abide by the terms of Ex.A2. 29. Thus, the facts and circumstances as are available on record, did not make out any substantive question of law for determination in the second appeal. Neither there was any delay nor reflection of any indifference on the part of the respondent to abide by the terms of Ex.A2. On the other hand, the conduct of the appellant itself demonstrated that he did not come clean to abide by the terms of Ex.A2 agreement. In fact, the material on record clearly shows that upon receiving advance sale consideration under Ex.A2 and a part under Ex.A3 he invested in purchasing a plot, as his testimony reflects, supported by Ex.A4 and Ex.A5. 30. All these circumstances were considered in right perspective by the trial Court and also the first appellate Court. Learned appellate Judge went to the extent of considering the conduct of the respondent, with reference to time lines fixed under Ex.A2 and holding that though the time was not essence of the contract, the respondent did measure up to the terms of Ex.A2 contract. 31. Thus, when learned trial Judge in his discretion, within terms of Section 20 of Specific Relief Act held that the respondent stood entitled to have a decree as sought, which, on reappraisal of the material, was confirmed by the first appellate Court, as the last Court of facts, this Court now cannot sit in judgment over the same. 32. Thus, the questions of law suggested, as referred to above, in ‘a’ and ‘d’, need not require to consider. In respect of other substantive questions referred to in ‘b’ and ‘c’, since they are dependant on the findings relating to ‘a’ and ‘d’, they cannot be termed as substantive questions of law by themselves. Thus, finding no justification to entertain this second appeal under Section 100 CPC, for want of any substantial questions of law requiring consideration of this Court, the second appeal has to be dismissed at admission stage. 33. In the result, the Second Appeal is dismissed confirming the decrees and judgments of both the Courts below, without costs. Interim orders, if any, stand vacated. All pending petitions, stand closed.