Anil Kumar S/o Raja Ram Sharma v. Shailendra Kumar Agrawal S/o Rajendra Kumar @ Rajendra Prasad
2022-07-15
SUDESH BANSAL
body2022
DigiLaw.ai
JUDGMENT : SUDESH BANSAL, J. 1. Appellant-plaintiff has preferred this second appeal under Section 100 CPC against the judgment and decree dated 08.05.2018 passed in Civil First Appeal No. 56/2016 by the Court of Additional District Judge No. 3, Ajmer affirming the judgment and decree dated 23.02.2008 passed in Civil Suit No. 69/93 (405/91) by the Court of Additional Civil Judge (Senior Division) No. 2, Ajmer whereby and whereunder appellant-plaintiff’s suit for specific performance was dismissed on merits. 2. Heard counsel for appellant and perused the record. 3. The relevant facts in brief are that appellant-plaintiff claims to have an agreement dated 21.12.1983 (date in the agreement wrongly mentioned as 21.10.1983) to purchase the disputed plot against the sale consideration of Rs. 34,125/- and against which alleged to pay Rs. 2,500/- to respondents-defendants. Plaintiff has instituted the civil suit for specific performance dated 11.12.1991, taking a stand that the disputed plot was part of the agricultural land and hence before transfer of the said plot, it was necessary to get no objection from the competent authority under the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred as the Urban Land Ceiling Act, 1976). Plaintiff averred that as per agreement, defendants are also agreed to get the N.O.C. and furnished information to the plaintiff and thereafter, plaintiff was required to get the sale deed registered after making payment of balance sale consideration in pursuance to the agreement dated 21.12.1983. The plaintiff alleged his readiness and willingness and submitted that no information was furnished by respondents, regarding N.O.C. from the competent authority, hence the suit has been instituted. 4. Respondents-defendants has submitted written statement and have not denied the execution of agreement in question. Defendants have taken a plea that in order to seek approval from the competent authority under the Urban Land Ceiling Act, 1976, plaintiff and defendants jointly submitted an application dated 30.03.1984 under Section 26(1) of the Urban Land Ceiling Act, 1976. The application was produced on record as Exhibit-A1. Defendants contend that as per Section 26 of the Urban Land Ceiling Act, 1976, after expiry of 60 days with effect from submitting the application on 30.03.1984, there is a presumption of having approval of the competent authority hence thereafter, the plaintiff never agreed to purchase the disputed plot and hence the agreement has come to an end automatically with lapse of time.
Defendants categorically denied that the plaintiff was ever ready or wiling to pay the balance sale consideration and to get the sale deed registered in pursuance to the agreement in question. It may be noticed here that though defendants disputed the date of agreement as 21.12.1983 and contended that the agreement was executed on 21.10.1983, however, in view of admission of defendants about the execution of agreement to sale in question, the date is not of much material importance. 5. The trial court after framing issues and recording evidence of both parties, has observed that as far as agreement in question is concerned, the same is not disputed between the parties but it appears through Exhibit-A1 that a joint application dated 30.03.1984 was submitted by and on behalf of plaintiff and defendants before the competent authority under Section 26 of the Urban Land Ceiling Act, 1976 and thereafter even on expiry of 60 days, the plaintiff has not proceeded to get executed the sale deed. The agreement has come to an end after lapse of limitation. The plea taken by plaintiff that defendants did not inform about the N.O.C. from the competent authority under the Urban land Ceiling Act of 1976, was candidly declined in view of submission of the joint application dated 30.03.1984 under the signatures of plaintiff as well of defendants. In such factual matrix, the trial court dismissed the plaintiff’s suit for specific performance vide judgment and decree dated 23.02.2008. 6. Appellant-plaintiff preferred first appeal assailing the judgment and decree dated 23.02.2008. The first appellate court re-appreciated the evidence available on record and examined the issues involved in the suit. The first appellate court also concurred with the fact finding that in view of submission of joint application seeking approval from the competent authority, the plaintiff’s case for specific performance is highly belated and has been filed after expiry of the period of agreement. Hence the first appeal was dismissed on merits vide judgment and decree dated 08.05.2018. 7. Learned counsel for appellant has placed reliance on Section 26 of the Urban Land Ceiling Act, 1976. In order to appreciate the arguments, it is necessary to examine the provisions of law which are being quoted hereunder: “26.
Hence the first appeal was dismissed on merits vide judgment and decree dated 08.05.2018. 7. Learned counsel for appellant has placed reliance on Section 26 of the Urban Land Ceiling Act, 1976. In order to appreciate the arguments, it is necessary to examine the provisions of law which are being quoted hereunder: “26. Notice to be given before transfer of vacant land: (1) Notwithstanding anything contained in any other law for the time being in force, no person holding vacant land within the ceiling limit shall transfer such land by way of sale, mortgage, gift, lease or otherwise except after giving notice in writing of the intended transfer to the competent authority. (2) Where a notice given under sub-section (1) is for the transfer of the land by way of sale, the competent authority shall have the first option to purchase such land on behalf of the State Government at a price calculated in accordance with the provisions of the Land Acquisition Act, 1894 (1 of 1894) or of any other corresponding law for the time being in force and if such option is not exercised within a period of sixty days from the date of receipt of the notice, it shall be presumed that the competent authority has no intention to purchase such land on behalf of the State Government and it shall be lawful for such person to transfer the land to whomsoever he may like: Provided that where the competent authority exercises within the period aforesaid the option to purchase such land the execution of the sale deed shall be completed and the payment of the purchase price thereof shall be made within a period of three months from the date on which such option is exercised. (3) For the purpose of calculating the price of any vacant land under sub-section (2), it shall be deemed that a notification under sub-section (1) of section 4 of the Land Acquisition Act, 1894 (1 of 1894) or under the relevant provision of any other corresponding law for the time being in force, had been issued for the acquisition of such vacant land on the date on which the notice was given under sub-section (1) of this section.” 8. Both courts on the basis of the application dated 30.03.1984 (Exhibit-A1) have concurrently held that application is signed by the plaintiff as well as by defendants.
Both courts on the basis of the application dated 30.03.1984 (Exhibit-A1) have concurrently held that application is signed by the plaintiff as well as by defendants. The plaintiff (PW-1) has not denied his signatures and submission of application before the competent authority but has merely expressed his ignorance. Both courts have observed that once it is established on record that plaintiff himself submitted application with defendants for approval of the competent authority under Section 26(1) of the Urban Land Ceiling Act, 1976, there is no justification to contend that defendants have not informed about the N.O.C. The plaintiff himself, after submission of application on 30.03.1984, was well aware that as per deemed provisions of Section 26 of the Urban Land Ceiling Act, 1976, the approval by the competent authority to transfer the plot in question, is presumable. The plaintiff, after submission of application on 30.03.1984, could have proceeded for the execution of sale deed after expiry of 60 days, if was ready and willing to pay the balance sale consideration and to get the sale deed registered, pursuant to the agreement dated 21.12.1983. 9. Factually, it is clear from the record that after execution of the agreement dated 21.12.1983, the plaintiff has not even issued a single notice to defendants asking for performance of the agreement including seeking N.O.C. from the competent authority. First time the suit has been instituted on 11.12.1991. In the backdrop of factual matrix, which has come on record that plaintiff has himself submitted application seeking approval from the competent authority on 30.03.1984, there is no explanation from the side of plaintiff about his inaction thereafter. Rather it can be inferred that plaintiff has not approached the court with clean hands. In the civil suit for specific performance, bona fides and fairness of party may play an important role. In the present case, where the plaintiff has miserably failed to prove his readiness and willingness at least after expiry of 60 days from 30.03.1984, until institution of the suit on 11.12.1991, plaintiff is also sufferer from not approaching the Court with clean hands. 10. The Hon’ble Supreme Court in case of Ramachandra Kulkarni vs. Dinkar, (1993) 3 SCC 549, has observed that when plaintiff was not ready and willing to perform his part of the contract, which disentitled him to the equitable relief of specific performance.
10. The Hon’ble Supreme Court in case of Ramachandra Kulkarni vs. Dinkar, (1993) 3 SCC 549, has observed that when plaintiff was not ready and willing to perform his part of the contract, which disentitled him to the equitable relief of specific performance. The Hon’ble Supreme Court in case of Mohammadia Cooperative Building Society Limited vs. Lakshmi Srinivasa Cooperative Building Society Limited and Others, (2008) 7 SCC 310 , has observed as under: “71. Grant of a decree for specific performance of contract is a discretionary relief. There cannot be any doubt whatsoever that the discretion has to be exercised judiciously and not arbitrarily. But for the said purpose, the conduct of the plaintiff plays an important role. The courts ordinarily would not grant any relief in favour of the person who approaches the courts with a pair of dirty hands.” The Hon’ble Supreme Court in case of K.S. Vidyanadam and Others vs. Vairavan, (1997) 3 SCC 1 , has observed as under: “13. In the case before us, it is not mere delay. It is a case of total inaction on the part of plaintiff for 2 1/2 years in clear violation of the terms of agreement which required him to pay the balance, purchased the stamp papers and then ask for execution of sale deed within six months. Further, the delay is coupled with substantial rise in prices - accordingly to the defendants, three times - between the date of agreement and the date of suit notice. The delay has brought about a situation where it would be inequitable to give the relief of specific performance to the plaintiff.” The Hon’ble Supreme Court in another case of Man Kaur (Dead) by LRs. vs. Hartar Singh Sangha, (2010) 10 SCC 512 , has observed as under: “23. This Court further held that the averments relating to readiness and willingness are not a mathematical formula which should be expressed in specific words and if the averments in the plaint as a whole, do clearly indicate the readiness and willingness of the plaintiff to fulfill his part of the obligations under the contract, the fact that the wording was different, will not militate against the readiness and willingness of the plaintiff. The above observations cannot be construed as requiring only a pleading in regard to readiness and willingness and not “proof” relating to readiness and willingness.
The above observations cannot be construed as requiring only a pleading in regard to readiness and willingness and not “proof” relating to readiness and willingness. In fact, in the very next para, this Court clarified that Section 16(c) of the Act mandates the plaintiff to aver in the plaint and establish the fact by evidence aliunde that he has always been ready and willing to perform his part of the contract. Therefore, the decision merely reiterates the need for both pleadings and proof in regard to readiness and willingness of the plaintiff.” 11. Hence in the backdrop, two courts below have not committed any error in deciding to grant decree for specific performance and both judgments and decrees are infallible. 12. The substantial questions of law as proposed by appellant-plaintiff are essentially questions of fact which requires re-appreciation of evidence. None of the question of law, falls within purview of substantial question of law. In order to exercise the scope of Section 100 of CPC, involvement/formulation of substantial question of law is sine qua non. Otherwise also, it is a case of concurrent findings of facts even if erroneous cannot be disturbed in exercise of powers under Section 100 CPC as has been held in case of Kondiba Dagadu Kadam vs. Savitribai Sopan Gujar, (1999) 3 SCC 722 , Pakeerappa Rai vs. Seethamma Hengsu and Others, (2001) 9 SCC 521 , Thulasidhara and Another vs. Narayanappa and Others, (2019) 6 SCC 409 , Bholaram vs. Ameerchand, (1981) 2 SCC 414 , Ishwar Das Jain vs. Sohan Lal, (2000) 1 SCC 434 , State of Madhya Pradesh vs. Sabal Singh and Others, (2019) 10 SCC 595 , D. Doddanarayan Reddy and Others vs. C. Jayarama Reddy and Others, (2020) 4 SCC 659 . 13. The upshot of discussion made hereinabove is that the present second appeal does not give rise to any question of law much less substantial questions of law. In absence of involvement of any substantial question of law, the second appeal cannot be entertained. As a result, this second appeal deserves to be dismissed and the same is hereby dismissed. 14. All other pending applications, if any, also stands disposed of.