Rajdhar Singh v. Kamtabai

deed was not executed, present suit for specific performance was filed on 17/7/1996. During pendency of suit, defendant Kallu expired and has been substituted by his legal heirs.

3. Defendant filed the written statement and denied the execution of the sale agreement.

4. Learned Trial Court as well as Appellate Court after appreciating the evidence, recorded a finding in favour of defendant and have held that the sale agreement in question was not executed by him. Suit was dismissed. Being aggrieved, present appeal has been filed by the appellant/plaintiff under Section 100 of CPC.

5. Learned counsel for the appellant/plaintiff challenged the impugned judgment and decree primarily on the ground that the findings recorded by both the Courts are perverse having been recorded by misreading the evidence led by plaintiff. He also argued that when no evidence was led in rebuttal by the defendant, the plaintiff's evidence, being unrebutted, should have been accepted by the Courts below. He thus prayed for admission of the appeal.

6. Defendant denied the execution of sale agreement, therefore, it was the burden of plaintiff to have proved its execution. In order to prove so, he examined himself as PW/1, while the attesting witness Hariram was examined as PW/2 and scribe of agreement Sharad Chandra Jain was examined as PW/3.

7. In his examination-in-chief, attesting witness, Hariram (PW/2) stated about having witnessed payment of amount of sale consideration.

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However, in paragraph 4 of his cross-examination, he has stated that the factum of payment of amount was asked by him from the plaintiff. Meaning thereby, he did not witness the payment of sale consideration. Further, the agreement in question mentions about the delivery of the possession of the suit land to plaintiff. However, this fact was controverted by plaintiff himself in para 1 of plaint and also in his cross-examination. The learned Courts have also pointed out various discrepancies regarding presence of plaintiff and attesting witnesses at the time of execution of sale agreement. These factual findings have been recorded after proper appreciation of evidence.

8. Another pertinent fact which is available in this case is that the agreement was executed on 21/5/1993, whereas, the suit has been filed on 17/7/1996. As per the agreement, the sale deed was required to be executed by 21/5/1994. Even though as per the recitals of agreement, the suit could not have been held to be barred by limitation but it has been filed after lapse of about two years from the date fixed for execution of the sale deed in the agreement. There is no explanation offered by the plaintiff for having waited for these two years in his plaint as also in his testimony.

9. The Apex Court in the case of U.N. Krishnamurthy vs. A.M. Krishnamurthy reported in (2023)11 SCC 775 , was dealing with a suit for specific performance filed after three years immediately before expiry of period of limitation. The Court held thus:

"39. As argued by Mr Venugopal, the fact that the suit had been filed after three years, just before expiry of the period of limitation, was also a ground to decline the respondent-plaintiff the equitable relief of specific performance for purchase of

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immovable property. Mr Venugopal's argument finds support from the judgments of this Court in P.R. Deb & Associates v. Sunanda Roy [P.R. Deb & Associates v. Sunanda Roy, (1996) 4 SCC 423] ; K.S. Vidyanadam v. Vairavan [K.S. Vidyanadam v. Vairavan, (1997) 3 SCC 1] ; Manjunath

Anandappa v. Tammanasa [Manjunath Anandappa v. Tammanasa, (2003) 10 SCC 390] ; Azhar Sultana v. B. Rajamani [Azhar Sultana v. B. Rajamani, (2009) 17 SCC 27 : (2011) 1 SCC (Civ)

761] ; Saradamani Kandappan v. S. Rajalakshmi [Saradamani Kandappan v. S. Rajalakshmi, (2011) 12 SCC 18 : (2012) 2 SCC (Civ) 104] ."

10. One of the important ingredient for getting a decree for specific performance is about readiness and willingness of the plaintiff to get the sale deed executed. The Apex Court dealt with this issue in the case of N.P. Thirugnanam vs. R. Jagan Mohan Rao (Dr) reported in (1995) 5 SCC 115. It was held that the plaintiff must plead and establish his readiness and willingness right from the date of execution of agreement till the date of decree. The Court held thus:

"5. It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under Section 20 of the Specific Relief Act, 1963 (for short "the Act"). Under Section 20, the court is not bound to grant the relief just because there was a valid agreement of sale. Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the

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defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract."

11. In the case in hand, having parted with the full sale consideration at the time of execution of sale agreement, there is no reason given by plaintiff as to why one year period was prescribed for execution of sale deed. Further, no explanation is given for having waited for further two years after expiry of one year period fixed for execution of sale deed. The plaintiff should have shown his efforts made for getting the sale deed executed not only during one year period fixed in the sale agreement but also the two years period in between before filing of the suit. However, except averment made in plaint, plaintiff has failed to establish his readiness and willingness.

12. The relief of specific performance is a discretionary one and while

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(ASHISH SHROTI)

JUDGE

considering the issue, the conduct of parties is very much relevant. In this regard, the Apex Court in the case of Darshan Singh vs. Brij Bhushan Chaudhary reported in (2024)3 SCC 489, made following observations:

"12. Under Section 20 of the 1963 Act, the grant of a decree for specific performance is always discretionary. The exercise of discretion depends on several factors. One of the factors is the conduct of the plaintiff. The reason is that relief of a decree of specific performance is an equitable relief. A person who seeks equity must do equity."

13. There is concurrent findings of fact recorded by both the Courts that the sale agreement was not executed by defendant in favour of plaintiff. Appellant could not point out any perversity in the findings recorded. The findings have been recorded after due appreciation of evidence led by parties, and therefore, same do not warrant any interference by this Court in exercise of limited powers under Section 100 of CPC.

14. Consequently, no question of law much less substantial question of law is found to be involved in this appeal. Therefore, appeal fails and is hereby dismissed at the admission stage itself.

JPS/-

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