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2013 Supreme(Bom) 2218
High Court of Judicature at Bombay
A.P. BHANGALE, J.
Kanhaiyalal Motilal Talera
Versus
Sarubai Narayan Mulik since deceased by Legal Heirs & Others
First Appeal No.2860 of 2007
Decided On : 29-10-2013
For the Appellant:Madhav Jamdar, Advocate.
For the Respondents:R1(a), Though served but absent. R1(b) Sumeet Kothari, (Absent), Advocate. R1(c) S.M. Gorwadkar, Advocate, R2 Though served but absent.
Headnote:EVIDENCE ACT, 1872 - Section 33 - Cross-examination by defendant. - Where cross-examination of evidence of plaintiff by defendant remained incomplete due to illness of plaintiff therefore case to be decided on basis of available evidence on record. - Unless the examination-in-chief is tested with touchstone of the cross-examination it cannot be considered. In the present case the plaintiff was permitted to lead evidence by his affidavit and was also cross-examined. Opportunity to cross-examine was availed of though not to the fullest extent. The present case is not the case of the evidence of the plaintiff without any cross-examination of the plaintiff so as to brush aside the entire evidence of the plaintiff. The single Judge ruling would not apply on all fours to the present case. The blame is imputable to the defendant for conduct of the refusal by the defendant to attend the Court to be available for cross-examination. In the case in hand the plaintiff was cross-examined partly when unfortunately his sugar level was increased due to acute diabeties and he became sick in trial Court. No prudent person would expect a witness who is senior Citizen and ill, and not in proper frame of mind at the relevant time to continue to withstand rigors of the cross-examination by a well-versed, refined lawyer despite physical inability of, a witness. The fact cannot be overlooked that the plaintiff had applied for the appointment of Court commissioner to record his further evidence. Defendant took objection to appoint commission for to complete the cross-examination. Hence the defendant had opportunity to cross-examine the plaintiff which was deliberately not availed of by the defendant. As observed in re Bora Narsimhulu AIR 1952 Mad 165, what is contemplated under Section 33 of the Evidence Act is an opportunity offered for cross-examination and not the effective use of it. Thus within the meaning of Section 33 of the Indian Evidence Act, the evidence of the plaintiff as available with the cross-examination conducted in the trial Court was bound to be considered on merits as it was admissible, it remained unchallenged and was not washed off the record. The trial Court was in gross error of law to overlook and brush aside the entire evidence of the plaintiff. Dismissal of the suit is unreasonable and unsustainable.
Section 33 of the Indian Evidence Act is therefore attracted and the case has to be decided on the basis of available evidence. The errors committed by the trial Judge while dismissing the suit needs, to be rectified in the facts and circumstances of the case by allowing this appeal.
Specific Relief Act, 1963 - Section 10 - Specific performance of contract. - Plaintiff ready and willing to perform his part of contract and also to pay real market value of property entitled to decree of specific performance and damages. - The specific performance of a contract is an equitable relief and equity of both the sides has to be weighed. As a general rule, one cannot say that ordinarily the plaintiff cannot be allowed to have, for him alone, the entire benefit of phenomenal increase of the value of the suit property during the pendency of the litigation. While balancing the equities, one of the consideration to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether any party is trying to take undue advantage over the other party as also the hardship that may be caused to the defendant by directing the relief of specific performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen. Ordinarily as a rule the relief of specific performance ought to be granted and only very rarely the relief of specific performance is to be denied. In the present case it was the defendant who was the defaulting party and who in any case was responsible for escalated cost.
If at all the remedy of specific performance of contract cannot be availed of, then only, the sum of damages may be considered as an alternative. But it must be ensured as sufficient and exemplary enough to discourage rampant breach of obligation in such cases, by way of grant of exceptionally higher interest. If for any reason specific relief of performance cannot be granted then trial Judge may certainly grant alternative relief.
It was clearly duty and obligation on the part of defendant to obtain all the requisite permissions to execute the sale deed as agreed and to inform the plaintiff about her readiness and willingness to execute the sale deed as agreed. She was in continuing breach of this obligation under the contract and therefore the limitation for the suit never really started to bar the suit. The defendant who chose not to lead evidence in rebuttal cannot be allowed to defeat the suit merely because prices of the suit property are rising when the plaintiff is ready and willing to pay the real market value of the property. It is reflection of bona fide intention on the part of the plaintiff to complete the transaction despite rise in market price.
1. Heard submissions at the Bar. Written submissions tendered on behalf of the Plaintiff and Defendant –Respondent no1 are also seen. Perused record and proceedings. The Appeal is against the Judgment and order dated 16.11.2007 passed by learned Jt. Civil Judge S.D., Pune whereby the suit was dismissed with Costs.
2. The Plaintiff had filed the suit for the specific performance of the Suit agreement being labeled as “Visar Pavati” dated 28.03.1979. The plaintiff had paid sum of Rs.600/- on 15.11.1985, Rs.2000/- on 07.01.1985 Rs.3000/- on 04.02.1985 towards part payment of the consideration. It is case of the Plaintiff appellant that Smt. Sarubai Narayan Mulik (Original Defendant no. 1) had agreed to sell the suit property described as all that piece and parcel of the agricultural land or ground situated at Survey No.16 admeasuring five Acres on Southern Side of village Vadgaon Sheri, Taluka Haveli District Pune (Now within limits of Pune Municipal Corporation) bounded on east by S.No.14, on west by village boundary of Vadgaon Sheri and Yeravada and village Road, On North by remaining portion of S. No.16/2 Vadgaon Sheri. The plaintiff averred in the plaint that Sarubai’s earlier Pending suit no.1102 of 1967 filed by her against her Husband in the Court of CJJD Pune, was decreed on 25.03.1970. Sarubai acquired absolute ownership of five acres (Suit land) in the later suit no. 955 of 1974. On 26.10.1987 Sarubai’s Advocate Shri V. G. Joshi had entered into correspondence with the Plaintiff. The plaintiff had replied the notice on 10.11.1987. The plaintiff received a letter from the Advocate Shri V. G. Joshi on 05.02.1988 informing about the pending suit no.955 of 1974 and about the readiness of sarubai to sell the suit land at enhanced price of Rs.50,000/-per Acre and Sarubai had acknowledged letter from the Plaintiff dated 25.01.1988 whereby the plaintiff had reminded Sarubai of her agreement to sell the suit land to Plaintiff and part payments received by her. Sarubai had informed the Plaintiff about the legal impediments for to complete the suit transaction and promised to complete the transaction. Due to longstanding relations with the defendant, the Plaintiff had raised the offer to Rs.50,000/- per acre and insisted clear title, removal of the impediment under the Urban land Ceiling Act, fixation of boundaries for to hand over the possession of the suit land. The Plaintiff had also agreed to bear expenses of the Sale Deed. The Plaintiff also came to know that Dyaneshwar Narayan Mulik, the step Son of Sarubai filed Special civil suit 217 of 1990 seeking declaration that Sarubai has no right, title and interest in the suit land and temporary injunction which was granted in favour of Dyaneshwar. The said suit was withdrawn by Dyaneshawar on 30.10.1996. Sarubai, thus could not legally execute the Sale Deed in favour of the Plaintiff and could not hand over possession of the suit land to the Plaintiff. The sale Deed was to be completed within three months after Sarubai’s obtaining all the necessary permissions required under the law for Sale of the suit property. The plaintiff was ready and willing to perform his part of the Contract but Sarubai had avoided to obtain necessary permissions according to law to execute the Sale Deed in favour of the Plaintiff. Sarubai had failed to obtain clearance under the Urban Land (Ceiling & Regulation) Act, 1976 and also demarcation certificate in respect of the measurement of the suit land. The Plaintiff came to know in May 1994 that Sarubai had entered in to another transaction in October 1989 with shri Bachulal Pukhraj Oswal (defendant no 2) and was in the process to sell suit land to him for Rs.900,000/- only. The plaintiff met Sarubai reminded her of her contractual obligation and objected for her attempt to defeat the right of the Plaintiff in respect of the suit property. Since Sarubai was attempting to back out of the transaction and willfully avoided to carry out her obligation
