JUDGMENT

This R.S.A. has been directed against the judgment and decree in A.S. No.40/2012 on the file of Additional Sub Court, Irinjalakuda, which in turn arise out of the judgment and decree in O.S. No.692/2007 on the file of Additional Munsiff’s Court, Irinjalakuda.

2. The suit is one for specific performance of agreement for sale. The defendant is the appellant (parties would hereafter be referred as per the status before the trial court). The plaintiff and the defendant entered into an agreement for sale with respect to the plaint schedule property having an extent of 5¾ cents in Muriyad Village of Mukundapuram Taluk on 02.09.2005 on a consideration of Rs.1 lakhs. Out of which Rs.58,000/- was paid towards advance. The defendant agreed to receive the balance consideration on or before 02.8.2006 and execute the sale deed in favour of the plaintiff. The plaintiff issued registered notice demanding the execution of sale deed on 02.08.2006 and he was present before the Sub Registrar Office on the whole day but the defendant did not turn up, hence the suit has been filed.

3. Defendant remained ex-parte. Plaintiff filed proof affidavit and Ext.A1 to A3 were marked.

4. The learned Munsiff, on evaluating the evidence adduced from the side of the plaintiff, taking into account the elapse of 5½ years since the date of agreement, found that consideration of Rs.1 lakh only, it is not just and equitable to grant specific performance. Escalated value over the time is also taken into account. Hence, on equitable considerations the discretionary relief of specific performance is refused and alternate relief of return of advance amount of Rs.58,000/- was granted.

5. Dissatisfied with the judgment and decree passed by the trial court, plaintiff filed A.S. No.40/2012 and the 1st Appellate Court by the impugned judgment allowed the appeal and ordered specific performance of the agreement on receiving the balance sale consideration of Rs.42,000/- within two months. It is also directed that if the defendant fails to execute the sale consideration within two months, plaintiff can get sale deed executed through the process of court on depositing sale consideration within two months.

6. Against which the defendant approaches this Court in second appeal. Notice was issued to the respondent. Lower court records were called for and both sides were heard.

7. According to the learned counsel for the defendant, defendant could not appear before the trial court and file written statement and sought for remand of the matter for filing written statement. It is contended that appellate court without considering the contention of the appellant that sale consideration is inequitable decreed the suit. It is contended that no notice was served to the appellant at the trial stage. It is further contended that Ext.A1 is forged document. It is also her contention that there is no evidence to prove readiness and willingness on the part of the plaintiff. Hence, according to her this is a fit case in which the trial court has refused the specific performance of contract and allowed the return of advance amount. The 1st Appellate Court without any basis ordered specific performance of a valuable property for meager amount.

8. The learned counsel for the plaintiff on the other hand would contend that the defendant remained ex-parte. The plaintiff filed proof affidavit in support of the pleadings in the plaint and satisfied the 1st Appellate Court with regard to the readiness and willingness to perform her part of contract and hence there is no reason whatsoever to interfere with the findings entered into by the 1st appellate court.

9. At the time of admission, this Court formulated the following substantial question of law:

Was it on a wrong understanding of the reasons given by the trial court the first appellate court set aside the decree of the trial court?

10. Following additional substantial questions of law are also formulated:

(1) Whether the plaintiff established readiness