Back
2009 (1) UAD 696
SUPREME COURT OF INDIA
Hon’ble Mr. Justice S.B. Sinha and Hon’ble Mr. Justice Mukundakam Sharma
Civil Appeal No. 1077 of 2009
AZHAR SULTANA – Appellant
Versus
B. RAJAMANI & ORS. – Respondents
Decided on : 17.02.2009
(B) Specific Relief Act, 1963, Sec. 16(c) — Readiness and willingness of plaintiff to perform his part of contract — Averments in plaint regrding — Necessary to be made and established. (Para 12)
(C) Civil Procedure Code, 1908, Order 8, Rule 9 — Replication to written statement — Leave of court for filing is necessary — Filing thereof after 8 years of filing of W.S. — Not permissible in law.
(Paras 15, 16)
(D) Specific Relief Act, 1963, Sec. 16(c) — Expression readiness and willingness — Imports of — Some does not mean that the plaintiff should keep entire amount of considering ready throughout and must adduce evidence in proof of the same. (Paras 18, 20)
(E) Specific Relief Act, 1963, Sec. 16(c) — Readiness and willingness of plaintiff to perform his part of contract — Contention disputing the same — Both the original as also the subsequent purchaser are entitled to raise. (Para 19)
(F) Specific Relief Act, 1963, Sec. 16(c) and Evidence Act, 1872, Sec. 20 — Proving of her readiness and willingness by Muslim lady plaintiff — Non-examination of herself as witness and instead examing of her husband for the purpose — Sufficient compliance of law. (Para 20)
(G) Specific Relief Act, 1963, Sec. 16(c) — Plea of subsequent purchaser being a bonafide one for value and without notice — Entering into the consideration of — Necessary of — Such question need not be entered into if the plaintiff has failed to establish his/her readiness and willingness to perform his part of the contract.
(Para 21)
(H) Specific Relief Act, 1963, Sec. 20 — Grant of decree of specific performance — Refusal of — Property of — Subsequent purchasers continuing to live in suit property for last 30 years in their own rights — Refusal to grant such dfecree being in discretionary jurisdiction of court, in such circumstances, and grant of relief of refund of earnest money with certain other amount — Justified. (Paras 22, 24)
¼v½ fod; vuqcU/k ds fofufnZ"V ikyu gsrq okn & U;k;ky; ds fy;s vo/kkj.k gsrq vis{krk,sa & U;k;ky; dks ;g r; djuk vko';d gS fd D;k vuqca/k oS/k gS rFkk nksuksa i{kksa] dsrk o fodsrk ij ck/; dkjd gS & U;k;ky; dks ;g Hkh vo/kkj.k djuk gS fd D;k oknh lnSo vuqcU/k ds vius Hkkx dk vuqikyu djus dks rS;kj o bPNqd jgk gS tSls fd fofufnZ"V vuqrks"k vf/kfu;e dh /kkjk-16(c) esa okafNr gSA ¼izLrj 7½ ¼c½ fofufnZ"V vuqrks"k vf/kfu;e] 1963] /kkjk-16(c) & fod; vuqcU/k ds ikyu ds fy;s ;ksftr okn esa oknh ds vius Hkkx dk ikyu djus gsrq lnSo rS;kj o bPNqd jgus dk vfHkdFku okn esa fd;k tkuk rFkk mldks fl) fd;k tkuk vfuok;Z gSA ¼izLrj 12½ ¼l½ nhokuh izfd;k lafgrk] 1908] vkns'k 8] fu;e 9 & izfrokn i= ds izR;qRrj izLrqr djus gsrq U;k;ky; dh vuqefr vko';d gS & mlds fyf[kr dFku ds nkf[ky fd;s tkus ds 8 lky ckn izLrqr fd;k tkuk U;k;fgr esa vuqKs; ugha gSA ¼izLrj 15] 16½ ¼n½ fofufnZ"V vuqrks"k vf/kfu;e] 1963] /kkjk-16(c) & vfHkO;fDr] ^rS;kjh o bPNqd jguk* dk vFkZ ;g ugha gS fd oknh dks lnSo izfrQy dh dqy /kujkf'k vius ikl j[kuh pkfg;s rFkk mDr gsrq mldk lk{; izLrqr djuk pkfg;sA ¼izLrj 18] 20½ ¼;½ fofufnZ"V vuqrks"k vf/kfu;e] 1963] /kkjk-16(c) & oknh ds vuqca/k ds vius Hkkx ds ikyu gsrq rS;kj o bPNqd jgus ds vfHkdFku dks pqukSrh nsus dk vf/kdkj ewy rFkk i'pkrorhZ nksuksa dsrkvksa dks gSA ¼izLrj 19½ ¼j½ fofufnZ"V vuqrks"k vf/kfu;e] 1963] /kkjk-16(c) rFkk Hkkjrh; lk{; vf/kfu;e] 1872] /kkjk&120 & eqfLye L=h oknh ds fy;s ;g vko';d ugha gS fd og vuqcU/k ds vius Hkkx ds ikyu ds fy;s lnSo rS;kj o bPNqd jgus ds vfHkdFku dks fl) djus ds fy;s Lo;a dks lk{kh ds :i esa ifjf{kr djs cfYd mlds fy;s mlds }kjk vius ifr dks lk{kh ds :i esa ifjf{kr djuk dkuwu dk i;kZIr vuqikyu gSA ¼izLrj 20½ ¼y½ fofufnZ"V vuqrks"k vf/kfu;e] 1963] /kkjk-16(c) & ;fn oknh vius bl dFku dks fd og lnSo vuqca/k ds vius Hkkx ds ikyu dks rS;kj o bPNqd jgk gS] fl) djus esa vlQy jgk gS rks i'pkrorhZ dsrk dks bl dFku ds fl) djus dh vko';drk ugha gS fd og ewY; ds fy;s lnHkkoh o fcuk uksfVl dk dsrk gSA ¼izLrj 20½ ¼o½ fofufnZ"V vuqrks"k vf/kfu;e] 1963] /kkjk&20 & fofufnZ"V vuqrks"k dh fMdh ikfjr djuk U;k;ky; ds foosdkf/kdkj gS & ;fn i'pkrorhZ dsrk vius Lo;a ds vfèkdkjkèkhu 30 o"kks± ls okne; lEifRr esa jg jgk gS rks U;k;ky; }kjk fofufnZ"V vuqrks"k iznku djus ls bUdkj & fof/k v/khu mfpr gSA ¼izLrj 22] 24½
S.B. Sinha, J. — Leave granted.
2. Subsequent purchasers who were arrayed at a later stage in a suit for Specific Performance of Contract are before us aggrieved by and dissatisfied with a judgment and order dated 21.12.2004 passed by a learned Single Judge of the High Court of Andhra Pradesh at Hyderabad allowing the appeal from a judgment and order dated 21.7.1993 passed by the First Additional Judge, City Civil Court, Hyderabad in OS No. 1436 of 1981 dismissing the suit of the plaintiff-appellant herein.
3. The factual matrix involved herein is as under :
The property in question admittedly belonged to one Ramesh Chand Khanna, the original defendant. An agreement of sale was entered into by and between the appellant and the said Ramesh Chand Khanna in terms whereof the suit land was agreed to be sold at the rate of Rs. 325/- per sq. yd. A sum of Rs. 30,000/- was paid by way of advance.
4. It now stands admitted that on or about 7.12.1981, an application was filed in terms of Section 27 of the Urban Land Ceiling and (Regulation) Act, 1970. The said application was rejected.
It is also not in dispute that a suit was filed by one Bahadur Hussain against the original defendant. The said suit was decreed in favour of the said Shri Bahadur Hussain.
5. Defendant Nos. 5 and 6 entered into a deed of sale dated 31.10.1981 with the said Ramesh Chand Khanna (since deceased) for a land measuring 217 sq. yds. For a consideration calculated at the rate of Rs. 48,000/- per bigha wherefore negotiation had to be entered into for settlement of the dispute by and between Ramesh Chand Khanna and the said Bahadur Hussain only after execution of the deed of sale, a notice was issued by the appellant asking Shri Khanna to execute a deed of sale in his favour.
The suit for specific performance was filed on or about 7.12.1981. As indicated hereinbefore, in the original suit the defendant nos. 5 and 6 were not impleaded as parties. A written statement was filed by Shri Khanna on or about 30.8.1983 wherein he disclosed the factum of execution of the deed of sale dated 31.10.1981. The said defendants were impleaded as parties. One of the contentions raised by the said impleaded defendants was that they were subsequent purchasers for value and without notice to the original agreement for sale entered into by and between the appellants and the said Shri Khanna.
6. In view of the pleadings of the parties, the learned Trial Judge framed the following issues :
“(1) Whether the plaintiff is entitled for specific performance of agreement in respect of suit schedule property?
(2) Whether the suit is barred by limitation?
(3) To what relief?
Additional issues were also framed, viz.
(1) Whether the defendant No. 6 is a bona fide purchaser of the suit property for value without notice of the suit agreement of sale in favour of the plaintiff?
(2) Whether the suit agreement of sale is not binding on the defendants including the defendant Nos. 5 and 6?”
The learned trial Judge decreed the suit, inter alia, opining that, defendant Nos. 5 and 6 had knowledge about the agreement of sale entered into by and between the plaintiff and Khanna and, thus, the provision of Section 19(b) of the Specific Relief Act was not attracted.
Indisputably, before the learned Trial Judge, the plaintiff-appellant did not examine herself. On her behalf, her husband who was also the holder of a General Power of Attorney was examined.
The learned Trial Judge held the agreement dated 4.12.1978 to be enforceable. It was furthermore held that the suit was not barred by limitation. It was observed that although grant of a decree for specific performance of a contract is discretionary in nature but as the plaintiff had paid a substantial amount, she should be held to be entitled thereto.
The defendant Nos. 5 and 6 preferred an appeal thereagainst. By reason of the impugned judgment, as noticed hereinbefore, the High Court allowed the said appeal. The High Court formulated the following
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
