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2019 Supreme(Mad) 1562
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
R. HEMALATHA, J.
M. Abdul Wahab and Ors. - Appellants
Versus
V. Jeyaram - Respondent
S.A. (MD) No. 729 of 2004
Decided On : 01-04-2019
Advocate Appeared:
For the Appellant : K. Srinivasan, Senior Counsel for M.P. Senthil
For the Respondents: V. Radha Krishnan, Senior Counsel for S. Kadarkarai
Headnote:
Code of Civil Procedure - Section 100 - Specific Relief Act – tenant - sale deed executed as evidenced - suit for specific performance of the Contract - Northern portion of the suit property was not leased out in favour of the respondent/plaintiff and the respondent/plaintiff forcibly broke open the lock of the northern veranda portion of the property on 13.10.1992 and occupied the same for which, a criminal complaint was preferred by the first appellant before the Dindigul North Police Station - During the pendency of the first appeal the sole defendant died and therefore his legal heirs were brought on record as respondents 2 to 6 in the first appellate court – Held, Furthermore, the defendant had also lodged a complaint with the Inspector of Police, Dindigul Town Police Station, for the alleged encroachment made by the plaintiff in a portion of the suit property on 13.10.1992 (Ex. B4). When it is so, the first appellate court had observed that “the plaintiffs friendly nature and attitude is evident from his notice dated 22.04.1992 (Ex. A10)”. It has further observed that the plaintiff wanted to have “cordial relationship” with the defendant even after filing R.C.O.P. by the defendant - A comparison of the signature of the defendant found on Ex. A1 to Ex. A5 with that of his admitted signatures on written statement and vakalat would clearly go to show that the signature found on Ex. A5 is not the signature of the defendant. Merely based on the evidence of P.W. 2 and P.W. 3 it cannot be held that Ex. A5 is a genuine document especially when P.W. 2 and P.W. 3 are admittedly closely related to the plaintiff. Though the close relationship of P.W. 1 and P.W 2 with the plaintiff alone may not be the sole ground to discard their evidence, the facts and circumstances of the present case are such that their evidence cannot be considered to be a gospel truth to hold that Ex. A5 is true and valid - Learned counsel appearing for the first respondent/plaintiff contended that since the first appellate court had himself compared the signatures of the defendant and found that the signature on Ex. A5 is that of the defendant, this Court cannot interfere with the said finding under Section 100 of the Code of Civil Procedure. It has already been observed that the signature found on Ex. A5 when compared with the admitted signatures of the defendant/first appellant clearly shows that it is not the signature of the defendant. Even assuming that Ex. A5 is true and valid, the plaintiff has not proved his readiness and willingness to perform his part of the contract - appeal is allowed
JUDGMENT :
R. Hemalatha, J.
1. The first appellant in A.S. No. 250 of 1999 is the defendant in O.S. No. 544 of 1993 on the file of the learned Subordinate Judge, Dindigul. The respondent/plaintiff filed the above suit for specific performance of the Contract.
2. The case of the respondent/plaintiff in nutshell is as follows:-
2.1. The respondent/plaintiff is a tenant in the suit property since 1977 under the appellant/defendant and also entered into a sale agreement, dated 20.12.1989 (Ex. A5) with the first appellant/defendant (since deceased) for purchase of the suit property for a consideration of Rs. 1,10,000/- out of which a sum of Rs. 31,000/- was paid on different dates and a sum of Rs. 75,000/- was paid on the date of the sale agreement (Ex. A5). According to him, the defendant (first appellant) did not execute the sale deed after receiving the balance sale consideration of Rs. 4,000/-, even though the plaintiff was always ready and willing to pay the said amount and get the sale deed executed as evidenced by the notice (Ex. A6) and Ex. A8 issued by him to the defendant. He therefore filed the above suit for specific performance of the Contract.
3. The suit was resisted by the first appellant/defendant (since deceased) on the following grounds:-
(i) The sale agreement, dated 20.12.1989 (Ex. A5) is a rank forgery and the first appellant/defendant did not sign the said agreement
(ii) The actual value of the suit property was Rs. 4,00,000/- even on the date of the sale agreement i.e. 20.12.1989 and there was no necessity for the first appellant/first defendant to sell his property for such a low value of Rs. 1,10,000/- in favour of the respondent/plaintiff.
(iii) Northern portion of the suit property was not leased out in favour of the respondent/plaintiff and the respondent/plaintiff forcibly broke open the lock of the northern veranda portion of the property on 13.10.1992 and occupied the same for which, a criminal complaint was preferred by the first appellant before the Dindigul North Police Station on 15.10.1992.
(iv) There is no privity of contract between the respondent/plaintiff and the first appellant/defendant and the suit filed by the respondent/plaintiff is liable to be dismissed.
4. During the pendency of the first appeal the sole defendant died and therefore his legal heirs were brought on record as respondents 2 to 6 in the first appellate court.
5. The respondent/plaintiff also filed a suit for bare injunction against the first appellant/defendant in O.S. No. 30 of 1997 before the same Court. Therefore, O.S. No. 30 of 1997 and O.S. No. 544 of 1993 were tried jointly and the learned Subordinate Judge, Dindigul, vide his decree and judgment, dated 22.10.1997 dismissed the suit filed by the respondent/plaintiff for specific performance of contract in O.S. No. 544 of 1993 and decreed the suit in O.S. No. 30 of 1997, which was filed by the respondent/plaintiff for bare injunction.
6. Aggrieved over the same, the respondent/plaintiff preferred an appeal in A.S. No. 250 of 1999 before the Principal District Judge, Dindigul against the decree and judgment passed in O.S. No. 544 of 1993 by the learned Subordinate Judge, Dindigul.
7. The learned Principal District Judge, Dindigul, after analysing the oral and documentary evidence adduced on both sides allowed the appeal filed by the respondent/plaintiff vide decree and judgment, dated 28.11.2003.
8. Now, the present second appeal is filed under Section 100 of the Code of Civil Procedure by the appellants herein/respondent 2 to 6 in A.S. No. 250 of 1999 and the following substantial questions of law were framed by this Court:-
(i) when admittedly none of the ingredients under the Specific Relief Act are complied with by the respondent seeking to enforce Ex. A5 for specific performance, whether the lower court is right in holding that the respondent is entitled for specific performance?
(ii) When the defendant has specifically alleged that the signature contained under Ex. A5 is not h
