Somanagouda and Others Vs. ShamshiddIn and Others - Court Judgment

(Prayer: This regular second appeal is filed under Section 100 of CPC, against the judgment and decree dated 21.04.2010 passed in R.A. No 13/2006. On the file of the Prl. Senior Civil Judge, Haveri, allowing the appeal, filed against the judgment dated 23.12.2005 and the decree passed in O.S. No. 60/2001 on the file of the Civil Judge (Jr. D.N.) Savanur. Dismissing the suit filed for specific performance.)

1. This second appeal by the aggrieved first defendant in OS No 60 of 2001. On the file of Civil Judge (Jr Dn) and JMFC, Savanur, who though successfully defended the suit for specific performance of the agreement dated 9.1.1989 and got the suit dismissed not on the ground of non-execution of the agreement but on the ground of want of readiness and willingness on the part of the plaintiff-agreement holder to perform his part of the agreement, but was not so successful in the appeal of the plaintiff before the lower appellate court, wherein the adverse finding against the plaintiff came to be reversed and the suit came to be decreed and the first defendant was directed to execute registered sale deed in favour of the plaintiff within three months from the date of judgment i.e. 21.4.2010, which judgment is questioned in this second appeal.

2. While the memorandum of appeal, the following three substantial questions of law, are indicated:

a) Whether the Appellate Court is justified in not exercising proper discretionary powers?

b) Whether the Appellate Court is justified in reversing the Judgment and Decree of the Trial Court when there was no evidence regarding the execution of agreement?

c) Whether the Appellate Court is justified in not considering the hardship?

Submission of Sri Madanmohan M Khannur, learned counsel for the appellants is that when the defendant had denied execution of the agreement, the court below should have placed the burden on the plaintiff to prove the agreement, but both the courts below have failed to bestow their attention on this aspect of the matter; that it is a serious error in law; that the lower appellate court failed to see even when the trial court had recorded a finding on issuing No 2 in the negative, the lower appellate court has glossed over this specific finding in answering the point No 2 viz., ‘whether the evidence placed in the court discloses that the plaintiff is/was always ready and willing to perform his part of the contract?’ in the affirmative and also submits that this is a serious error committed by the lower appellate court and more importantly urges that the courts below having not bestowed their attention to the hardship the defendant may suffer, particularly having regard to the increase in the value of the property during the interregnum, the price/consideration as claimed by the plaintiff i.e. sum of Rs.50,000/- in respect of an extent of 5 acres 23 guntas of agricultural land situated in Gundur village of Savanur Taluk, which amount is an illusory one and when the agreement itself is claimed to be the date 9–1-1989, decreeing the suit for specific performance in the year 2010 is a gross injustice to the defendant, as the subject was of much more value by then and had vastly appreciated in the interregnum; that such question constitutes substantial question of law wrongly decided by the court below and therefore the second appeal deserves examination within the scope of Section 100 CPC by this court.

3. I have perused the judgment of the court below and considered the submissions made at the Bar.

4. Whether the agreement had been executed or not is a question of fact. The question as to whether the aspect of readiness or willingness on the part of the plaintiff is also a question of fact and the lower appellate court concludes that the trial court has not appreciated the evidence on record in its proper prospective and on a re-appreciation of the evidence arrives at the conclusion that there was both readiness and willingness on the part of the plaintiff, which factual finding is again is in the domain of the first appellate court, is not matter for further examination by this court in a second appeal

5. In so far as the ground of hardship relating to the question of price is concerned, while the price is as fixed between the parties, which is found to be an amount of Rs.50,000/- and a substantial part of this amount was paid even at the time of execution of the agreement, as it was the specific version of the plaintiff that a sum of Rs.48,000/- had already been paid by way of advance payment at the time of execution of the agreement and the balance amount of Rs.2,000/- alone was payable and non payment or delayed payment of this small portion of the sale price amount cannot make much difference to the outcome of the appeal.

6. With the plaintiff having been put in possession and the balance amount to be paid being only a sum of Rs.2,000/-, an inference that the plaintiff was not ready and willing to perform his part of the contract is more an illusory than a realistic finding and the lower appellate court has rightly reversed such decision of the trial court and in my opinion, no question is wrongly decided by the lower appellate court which arises for examination in this second appeal.

7. Even the question of limitation having been answered against the defendant, with there being no period of limitation and more importantly an agreement holder having been put in possession of the property and having remained in possession of the property, the question of limitation recedes to the background and I am of the view this question having been rightly answered by the courts below, there is no scope for interference on this ground also, in this Sec. 100 appeal.

8. In view of dismissal of the appeal itself, there is no need to consider the application in Misc Cvl No 100518 of 2011 for stay.

9. In the result, both Misc Cvl No 100518 of 2011 and the appeal are dismissed.