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SUPREME COURT OF INDIA
M.R. Shah, A.S. Bopanna, JJ.
K. Karuppuraj – Appellant
Versus
M. Ganesan - Respondents
Civil Appeal Nos. 6014-6015 of 2021
Decided On : 04-10-2021
(A) Civil Procedure Code, 1908 – Section 96 read with Order XLI Rule 31 – First Appeal – Without framing points for determination and considering both facts and law; without proper discussion and assigning reasons, First Appellate Court cannot dispose of first appeal under Section 96 CPC – Sitting as a Court of First Appeal, it is duty of Appellate Court to deal with all issues and evidence led by parties before recording its findings. (Paras 6.1 and 6.2)
(B) Specific Relief Act, 1963 – Section 16(c) – Agreement to sell – Suit for Specific Performance of Contract – First appeals are to be decided after following procedure to be followed under CPC – Affidavit, which was filed by plaintiff and which has been relied upon by High Court is just contrary to pleadings in plaint – There were no pleadings in plaint that he is ready and willing to purchase property and get sale deed executed of property with tenants and specific pleadings were to hand over peaceful and vacant possession after getting tenants evicted and to execute sale deed – Proper procedure would have been for plaintiff to move a proper application for amendment of plaint in exercise of power under Order VI Rule 17 CPC, if at all it would have been permissible in a first appeal under Section 96 read with Order XLI CPC – However, straightaway to rely upon affidavit without amending plaint and pleadings is wholly impermissible under law – Such a procedure adopted by High Court is disapproved – High Court has failed to exercise jurisdiction vested in it as a First Appellate Court; High Court has not at all re-appreciated entire evidence on record; and not even considered reasoning given by Trial Court, in particular, on findings recorded by Trial Court on the issue of willingness – As such, impugned judgment and order passed by High Court is unsustainable. (Paras 7 and 8)
(C) Agreement to sell – Suit for Specific Performance of Contract – For the purpose of passing decree for specific performance, plaintiff has to prove both readiness and willingness – Once it is found on appreciation of evidence that there was no willingness on part of plaintiff, plaintiff is not entitled to decree for specific performance – In present case, Trial Court was justified in refusing to pass decree for specific performance – Impugned judgment and order passed by High Court quashed and set aside and judgment and decree passed by Trial Court stands restored – However, appellant original defendant directed to refund amount of Rs.3,60,001/- with 18% interest. (Paras 8, 10 and 11)
Facts of the Case:
Feeling aggrieved and dissatisfied with the judgment and decree passed by Trial Court dismissing the suit for specific performance, the plaintiff filed the appeal suit before High Court. By impugned judgment and order, relying upon the affidavit filed before High Court in which for the first time the plaintiff stated that he is ready and willing to purchase the property with the tenants, High Court without even re-appreciating the entire evidence on record and even without framing the points for determination has allowed the appeal by impugned judgment and order and has set aside the judgment and decree passed by the learned Trial Court, and consequently has decreed the suit for specific performance of the contract.
Findings of Court:
For the purpose of passing the decree for specific performance, the plaintiff has to prove both the readiness and willingness. Therefore, once it is found on appreciation of evidence that there was no willingness on the part of the plaintiff, the plaintiff is not entitled to the decree for specific performance. Therefore, in the present case, Trial Court was justified in refusing to pass the decree for specific performance.
Result : Appeals allowed.
Based on the provided legal document, here are the key points:
JUDGMENT :
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 27.11.2017 passed by the High Court of Judicature at Madras in Appeal Suit No. 94 of 2010 by which the High Court has allowed the said appeal by quashing and setting aside the judgment and decree passed by the learned Trial Court dismissing the suit for specific performance and consequently decreeing the suit, the original defendant has preferred the present Civil Appeal No. 6014 of 2021.
1.1 Feeling aggrieved and dissatisfied with the judgment and order dated 06.01.2020 rejecting the Review Application No. 71 of 2019 in Appeal Suit No. 94 of 2010, the defendant as review applicant has preferred the present Civil Appeal No. 6015 of 2021.
2. The facts leading to the present appeals in a nutshell are as under :-
2.1 An agreement for sale of the property situated in Kaspa Coimbatore was entered into between the plaintiff and the defendant wherein the defendant agreed to sell the same for a sale consideration of Rs. 16.20 lakhs to the plaintiff. A part sale consideration of Rs.3,60,001/- was paid at the time of execution of the agreement to sell. There were certain conditions stipulated in the agreement to sell. One of the conditions was that the defendant as original owner was required to evict the tenants from the property in question and thereafter to execute the sale deed on receipt of the full sale consideration. The plaintiff sent a legal notice to the defendant asking to evict the tenants from the property in question and to execute the sale deed on receipt of the balance sale consideration vide notice dated 01.07.2006.
2.2 That thereafter the plaintiff filed the present suit before the learned Trial Court for specific performance of the contract. It was the case on behalf of the plaintiff that he was ready and willing to perform his part of the contract but the defendant did not evict the tenants and come forward to execute the sale deed. Therefore, it was averred in the plaint that the defendant has to evict the tenants and perform his part of the contract and execute the sale deed. It was pleaded on behalf of the plaintiff that he was ready with the cash in his savings account and, therefore, he was always ready to perform his part of the contract. The defendant contested the suit by filing the written statement. Readiness and willingness on the part of the plaintiff and to perform the specific part of the contract was specifically denied. It was submitted that vacant possession was already known to the plaintiff as the tenants had been vacated and inspite of such the plaintiff was not ready to pay the remaining consideration. The learned Trial Court framed the following issues :-
2. Whether the plaintiff was ready and willing to purchase the property?
3. To what relief?”
2.3 Both the sides led the evidence, documentary as well as oral. On appreciation of evidence and considering the pleadings in the plaint, the learned Trial Court held the issue of readiness on the part of the plaintiff in favour of the plaintiff, however, held that the plaintiff was not willing to get the sale deed executed as it is, and, therefore, held the issue of willingness against the plaintiff. The Trial Court also held that the defendant has failed to prove that tenants had vacated the suit property as claimed, however, the learned Trial Court held on willingness against the plaintiff by observing that the plaintiff has not shown the willingness to purchase the property with the tenants and there are no such pleadings in the plaint and that the plaintiff has not elected to purchase the property as its nature. Therefore, the Trial Court on appreciation of the evidence ultimately held that the plaintiff was not at all willing to purchase the property with the tenants. Accordingly, the learned Trial Court dismissed the suit and refused to pass the decree for specific performance of
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