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2009(2) Supreme 262
SUPREME COURT OF INDIA
(From Andhra Pradesh High Court)
S.B. Sinha and Cyriac Joseph, JJ.
Azhar Sultana — Appellant
versus
B. Rajamani & Ors. — Respondents
Civil Appeal No. 1077 of 2009
(Arising out of SLP (C) No.6949 of 2005)
Decided on : 17-02-2009
AIR 1981 SC 234 – Relied upon.
(b)Transfer of Property Act, 1882 – Section 3 r/w Order XXIII, rule 9 – The sale deed being a registered one, the plaintiff was deemed to be aware of – Therefore not impleading the relevant parties including subsequent purchasers was not proper – Further, filing the replication without leave of the court was not permissible. (Para 15)
(c)Code of Civil Procedure, 1908 – Order VIII, Rule 9 (?) – Replication – Contention raised for the first time in replication – Not permissible. (Para 16)
(d)Specific Relief Act, 1963 – Section 16(c) – Continuous readiness and willingness on the part of the plaintiff is condition precedent for obtaining a relief of grant of specific performance of contract – Suit must be filed within a reasonable time – In ascertaining reasonable time, conduct of the parties would also assume significance. (Para 18)
(2002) 1 SCC 134; (2000) 2 SCC 428 – Relied upon.
(e)Specific Relief Act, 1963 – Section 16(c) – For showing continuous willingness and readiness it was not necessary that the entire consideration amount be always kept ready and the plaintiff must file proof thereof – For a Muslim lady, not examining herself would also not be fatal. (Para 20)
(f)Specific Relief Act, 1963 – Section 16(c) – Plaintiff filed the suit belatedly, did not implead relevant parties, and filed the replication without leave of the court – Plaintiff thus failed to prove continuous willingness and readiness to perform her part of the contract – Not entitled to grant of specific relief. (Paras 23 and 24)
Facts of the case :
1.The property in question 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.
2.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 which was rejected.
3.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.
4.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 wherefor negotiation had to be entered into for settlement of the dispute by and between Ramesh Chand Khanna and the said Bahadur Hussain.
5.The suit for specific performance was filed.
6.The learned trial Judge decreed the suit.
7.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.
Finding of the Court :
As the appellant could not prove her continuous willingness and readiness she is not entitled to relief.
Result : Appeal disposed of.
JUDGMENT
S.B. Sinha, J. —
1. 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 wherefor 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 points fo
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