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Gujarat High Court
Judgename :A.N.Divecha
NARANJI MAKANJI - Appellant
Versus
BHAGWANJI MAKANJI PATEL - Respondent
C.A.158 of 1981
Decided On : 07/09/1993
The plaintiff in the present case, by his conduct, has become disentitled to the equitable relief of specific performance of the suit agreement on account of his approaching the court with a false representation about the subsequent payment of Rs. 2500/-. The plaintiff could be said to have known that he would not be able to establish his case of his subsequent payment of Rs. 2500/- towards the consideration for the suit land at trial if the litigation was required to be instituted for specific performance of the suit agreement. In that case, he ought not to have approached the court with a case which he could not have established at trial, more particularly when he was praying in his suit for an equitable relief from the court. As the settled principle of equity would require a party to approach the court with clean hands. An untrue assertion in his pleadings while approaching the court would certainly amount to not approaching it with clean hands. In that view of the matter, the conduct of the plaintiff in that regard would certainly disentitle him from claiming the equitable relief of specific performance.
[Paras 9 & 10]
Specific Relief Act, 1963 - Sec. 20 - Civil Procedure Code, 1908 - Sec.100 - Appellate powers of High Court - Exercise of discretion by lower Courts - High Court does not possess the power under Sec.100 of the Code to upset the findings of fact recorded by lower appellate court but where lower courts have not exercised discretionary powers on sound and reasonable Judicial principles as required under Sec.20 of the Act - High Court could interfere.
The position of law regarding the further appellate powers of the High Court under Sec. 100 of the Code is well-settled. It cannot be disputed that the High Court does not possess the power under Sec. 100 of the Code to upset the findings of fact recorded by the lower appellate court unless they are found to be perverse. No finding of fact recorded by the lower appellate court is sought to be upset in this appeal. What is sought to be done is to interfere with the exercise of discretion by the lower court on proved facts. It is found by this Court that the exercise of discretion by the lower courts was not sound and reasonable and it was not guided by judicial principles as required by Sec. 20 of the Act.
[Para 15]
( 1 ) WHAT should be the effect of inability on the part of a party approaching the Court for the equitable relief of specific performance to establish its case in toto at trial ? Will inability to establish the case in toto at trial not amount to the falsity of the case ? In such a case, should the Court grant to that party the relief of specific performance ? these are the main questions arising in this appeal preferred before this Court by original defendant No. 2 in Regular Civil Suit No. 166 of 1975 questioning the correctness of the decision given by the learned District Judge of Valsad at Navsari on 31/01/1981 in Regular Civil Appeal No. 18 of 1976. Thereby the decision given by the learned Joint Civil Judge (J. D.) at Valsad on 30/01/1978 in Regular Civil Suit No. 166 of 1975 came to be affirmed. It is needless to say that the trial Court decreed the suit for specific performance of the agreement of sale of one immovable property executed between the respondents herein on 16/11/1972. Incidentally, the parties to the litigation culminating into this second appeal are brothers.
( 2 ) RESPONDENT No. 1 was the original plaintiff, respondent No. 2 original defendant No. 1 and the appellant original defendant No. 2 in the suit before the trial Court. For the sake of convenience I shall refer to them as they were arraigned in the suit proceedings.
( 3 ) THE facts giving rise to this second appeal are not many and not much in dispute. One piece of land bearing Survey No. 98 admeasuring 1 acre and 231/2 Gunthas situated in village Vashiar, District Valsad (the suit land for convenience) belonging to defendant No. 1 herein was agreed to be sold for Rs. 8,000. 00 to the plaintiff. The document representing the agreement of sale was executed on 16/11/1972. It is at Exh. 93 on the record of the case (the suit agreement for convenience ). An amount of Rs. 4,000. 00 was paid on the date of the agreement and the balance amount of the consideration in the sum of Rs. 4,000. 00 was agreed to be paid at the time of execution of the sale deed. No time-limit was fixed for performance of the contract. It appears that defendant No. 1 later on agreed to sell the suit land together with a small parcel of land bearing Survey No. 95/1 admeasuring only 7 Gunthas to defendant no. 2 in all for Rs. 8,001. 00. The document recording the agreement of sale was executed on 20/04/1973. It is at Exh. 53 on the record of the case. Thereunder defendant No. 2 paid to defendant No. 1 Rs. 5. 001. 00towards the consideration amount and the balance amount was agreed to be paid at the time of execution of the sale deed. It appears that possession of the suit land was handed over to defendant No. 2 pursuant to the agreement of sale at Exh. 53 on the record of the case. It appears that the plaintiff came to know of handing over possession of the suit land to defendant No. 2. He thereupon caused to serve both the defendants with one notice through his Advocate on 18/06/1973 indicating therein that the agreement of sale of the suit land was entered into between the plaintiff and defendant no. 1 on 16/11/1972 and warned the addressees of the notice not to make any attempt to frustrate the said agreement in any manner. It appears that defendant No. 2 caused his reply to the said notice on 6/07/1973. Its copy is at Exh. 87 on the record of the case. Thereby he denied to have any knowledge of any agreement between the plaintiff and defendant No. 1 for sale of the suit land. It appears that the matter rested there at till the plaintiff instituted one suit on 15/11/1975 in the court of the Civil Judge (J. D.) at Valsad for specific performance of the suit agreement or in the alternative for repayment of the consideration paid till that date with interest at the rate of 9% per annum. It came to be registered as Regular Civil Suit No. 166 of 1975. The suit was originally filed only against defendant No. 1. On service of the summons he appeared and filed his written
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