Specific performance requires the written agreement to be marked in evidence; mere admissions are insufficient to establish enforceable terms.

JUDGMENT :

SURAJ GOVINDARAJ, J.

1. The appellants are the defendants Nos.1 to 3 before the Trial Court in O.S.No.171/2007, which was a suit filed for specific performance of the agreement of sale deed dated 27.03.2003. The Trial Court having decreed the said suit, defendant Nos.1 to 3 had filed an appeal in R.A.No.336/2012 wherein the judgment of the Trial Court came to be confirmed. It is challenging the concurrent findings of the Trial Court and the First Appellate Court that defendants Nos.1 to 3 are before this Court.

2. The above appeal was admitted on 14.01.2016 for answering the following substantial questions of law:

i) Whether the judgment and decree of both the Courts below are perverse in decreeing the suit for specific performance in the absence of an agreement of sale?

ii) Whether the evidence of the plaintiff was misread while holding that the readiness and willingness to execute the alleged agreement of sale?

iii) Whether the judgment and decree of Trial Court suffers from lack of pecuniary jurisdiction to try the suit?

3. Sri. Ramesh Chandra, learned counsel for the appellants, would submit that both the Trial Court and the First Appellate Court have completely misapplied themselves inasmuch as the Trial Court has gone on to hold that the agreement of sale is admitted and the terms of sale as contended in the plaint are admitted even though the agreement of sale was itself not marked in evidence. Without an agreement of sale being marked in evidence, the question of a suit for specific performance being decreed would not arise.

4. The First Appellate Court has completely misapplied itself by holding that Ex.P1 is an agreement of sale when, infact of Ex.P.1 is not an agreement of sale but is a sale deed in favour of the plaintiff as regards the adjoining land from certain other persons. Thus, he submits that the First Appellate Court, having wrongly misconstrued Ex.P1 to be the subject agreement of sale, there being no agreement of sale, which has been marked in evidence. The First Appellate Court could not have again confirmed the judgment and decree passed by the Trial Court.

5. Learned counsel for the respondent would submit that the agreement of sale was on the record of the Court, but however, inadvertently, the said document had not been marked in evidence. There being an admission in the written statement filed by the defendants, more particularly in paragraph '2' of the written statement, that the agreement of sale had infact been entered into and the terms were more or less admitted in the written statement. This admission was sufficient for the Trial Court to decree the suit for specific performance even if the agreement of sale has not been marked.

6. Alternatively, he submits that since the agreement of sale was already on record before the Trial Court, this Court could remit the matter to the Trial Court by permitting the plaintiff to mark this document and also permitting the defendants to cross-examine the witnesses of the plaintiff in regard thereto, and the Trial Court could pass fresh orders on the said matters.

7. Heard Sri. Rameshchandra, learned counsel for the appellants, Sri. Manmohan P.N., learned counsel for the respondent and perused papers.

8. A suit for specific performance would essentially entitle the performance to be granted or decreed as regards which the specific performance is sought for. A suit for specific performance can also be filed for enforcing an oral agreement, but when the contention of the plaintiff is that the specific performance is sought for as regards the written agreement. It would but be required for the plaintiff, who has produced the said document and marked the same in evidence for the said doc