NEUTRAL CITATION
C/SA/571/2023 ORDER DATED: 08/11/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 571 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In
R/SECOND APPEAL NO. 571 of 2023
==========================================================
PATEL RASHIDABEN MUNAFBHAI
Versus
KETANBHAI MAHENDRABHAI JAISWAL
==========================================================
Appearance:
MR JAMSHED KAVINA(11236) for the Appellant(s) No. 1
MR SP MAJMUDAR(3456) for the Appellant(s) No. 1
MR JIGAR P RAVAL(2008) for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 08/11/2023
ORAL ORDER
1. This Second Appeal has been raised against the order and judgment passed in Regular Civil Appeal No.311 of 2019 by 3 rd Additional District Judge, Vadodara on 01.04.2023, allowing the appeal of the original plaintiff, who had filed Special Civil Suit No.1982/2015 for specific performance of agreement of sale dated 30.12.2011. The sale consideration was decided as Rs.4,50,000/-, and out of that, on the date of registration, Rs.3,05,000/- was paid. The Page 1 of 10 Downloaded on : Wed Nov 08 20:55:17 IST 2023 NEUTRAL CITATION C/SA/571/2023 ORDER DATED: 08/11/2023 undefined registered agreement no.8435 of 2011 reflects that rest of the amount of 1,45,000/- were required to be paid on the date of registration of the sale deed.
2. The learned trial Court while raising the issues had observed about the readiness and willingness of the plaintiff to pay rest of the consideration amount, and as per conduct of the plaintiff, the pleadings and on the facts and circumstances, the learned trial Court has observed that the said fact of readiness and willingness is proved. Further, it has been noted that defendants have not denied the same by making appearance during the trial.
3. The suit was not defended by the defendants by filing any written statement, nor the plaintiff was cross-examined. The suit was declined only on the fact of tenant being in possession of the suit property; while the Page 2 of 10 Downloaded on : Wed Nov 08 20:55:17 IST 2023 NEUTRAL CITATION C/SA/571/2023 ORDER DATED: 08/11/2023 undefined registered agreement of sale notes that the suit property had been given on rent to State Bank of India for A.T.M. Centre, and on the date of registration of the sale deed, it was the owner of the property, who had to get the property vacant for the possession to be handed over to the plaintiff.
4. In the appeal, the learned appellate Judge framed issue that, whether the appellant proves that the learned trial Court had not properly appreciated the facts on record, and the judgment and decree is based on assumption of facts or wrong appreciation of the facts, or against the record or by misinterpretation of legal provision, and is erroneous/perverse and needs interference of the Court, had answered the same in affirmative. The learned appellate Judge, while considering the facts and issues had raised the following points at paragraph no.18, which reads as under:
Page 3 of 10 Downloaded on : Wed Nov 08 20:55:17 IST 2023
NEUTRAL CITATION C/SA/571/2023 ORDER DATED: 08/11/2023 undefined "Firstly : Evidence on record in nutshell.
Secondly : Contention of the
parties.
Thirdly : Ownership and status of
the suit property.
Fourthly : Value of registered
Banakhat.
Fifthly : Whether time is the
essence of contract.
Sixthly : Willingness of plaintiff for
registration of sale deed.
Seventhly : Burden of proof.
Eightly : Whether suit is barred
by law of limitation.
Finally : Remedies available to
the parties.
5. Advocate Mr. Jamshed Kavina relied on
the following judgments:
(i) U.N.Krishnamurthy (Since Deceased Thr.
Lrs. Vs. A.M. Krishnamurthy, reported in
2022(0)AIJEL-SC 69481;
(ii) Kamal Kumar Vs. Premlata Joshi, reported
Page 4 of 10
Downloaded on : Wed Nov 08 20:55:17 IST 2023
NEUTRAL CITATION
C/SA/571/2023 ORDER DATED: 08/11/2023
undefined
in 2019(0)AIJEL-SC 63341;
(iii) Shukhwinder Singh Vs. Jagroop Singh,
reported in 2020(0)AIJEL-SC 65694;
(iv) C.S. Venkatesh Vs. A.S.C. Murthy (D) BY Lrs., reported in 2020(0)AIJEL-SC 65751;
(v) Shenbagam Vs. K.K. Rathinavel, reported in 2022(0)AIJEL-SC 68252;
(vi) Mehboob0ur0rehman Vs. Ahsanul Ghani, reported in 2019(0)AIJEL-SC 63626;
(vii) K.Karuppuraj Vs. M.Ganesan, reported in (2021) 10 SCC 777;
(viii) Rangammal Vs. Kuppuswami And Anr., reported in (2011) 12 SCC 220;
5.1 Advocate Mr. Jamshed Kavina while relying on the above judgments submits that though there would not be any defence on the side of the defendant, it is always the duty of the Page 5 of 10 Downloaded on : Wed Nov 08 20:55:17 IST 2023 NEUTRAL CITATION C/SA/571/2023 ORDER DATED: 08/11/2023 undefined plaintiff to prove his own case and cannot rely upon the weakness of the defendant. The concept of readiness and willingness to perform his part of contract, has always to be proved by the plaintiff by adducing evidence, which has to be fortified as in section 16(c) of the Specific Relief Act, 1963.
5.2 Advocate Mr. Jamshed Kavina submitted that the appellate Judge had not raised the issue in accordance to the Order 41 Rule 31 of C.P.C., where the Code itself mandates that the appellate Court has to assign reasons for its decision, and it is mandatory to comply the provisions of Order 41 Rule 31 of C.P.C., and non observance would lead to infirmity in judgment.
5.3 Advocate Mr. Jamshed Kavina relying on the judgments of Manjula And Other Vs. Shyamsundar And others, reported in (2022) 3 SCC 90, and Malluru Mallappa (D) Thr. Lrs. Vs. Page 6 of 10 Downloaded on : Wed Nov 08 20:55:17 IST 2023 NEUTRAL CITATION C/SA/571/2023 ORDER DATED: 08/11/2023 undefined Kuruvathappa, reported in 2020 (0) AIJEL-SC- 65756, further submitted that the appellate court's judgment must display conscious application of mind, and record findings supported by reasons on all issues and contentions and failure of the same with cryptic order would imply that the requirement of Order 41 Rule 31 has not been complied with and, thus, would be necessary to be remanded back for a fresh consideration. Mr. Jamshed Kavina, thus, stated that the said issue has to be raised as a substantial question of law, as would primarily affect the rights of the appellant herein.
6. Learned advocate Mr. Jigar P.Raval for the respondent referred to the facts and observations of both the courts to resist the argument.
7. It is to be noted that, notice prior to the suit was issued by the plaintiff. On the date Page 7 of 10 Downloaded on : Wed Nov 08 20:55:17 IST 2023 NEUTRAL CITATION C/SA/571/2023 ORDER DATED: 08/11/2023 undefined of registration of agreement of sale, substantial amount of Rs.3,05,000/- was paid and rest of the amount of Rs.1,45,000/- was decided to be paid on the date of registration of the sale deed. The plaintiff had averred about his readiness and willingness to pay the total amount, and had stated, that he had made a request on 16.08.2012 to the defendant to accept rest of the amount and to execute the sale deed by handing over the possession of the property. Thereafter too, it is averred that often he made request, and ultimately on 21.08.2012, had issued the notice for specific performance of the contract, which has not been replied by the defendant, nor the plaint of the plaintiff has been replied by filing any written statement. The pleadings of the plaintiff has remained uncontroverted. The evidence recorded has not been challenged by cross examination. The trial Court Judge has observed in affirmative regarding the readiness Page 8 of 10 Downloaded on : Wed Nov 08 20:55:17 IST 2023 NEUTRAL CITATION C/SA/571/2023 ORDER DATED: 08/11/2023 undefined and willingness of the plaintiff to pay the amount.
8. In context with the issue of Order 41 Rule 31 of the C.P.C., the question which has been raised by the appellate Judge includes all points to be determined, where specifically in paragraph-18, the appellate Judge has further deliberated and noted about the issues to be dealt with, and has given decisions thereon with reasoning. This Court does not find any ambiguity in the judgment of the appellate Court to consider that the provisions of Order 41 Rule 31 of the C.P.C. has not been followed. The aspect of readiness and willingness has been concurrently decided by both the courts below. 70% of the consideration amount has already been paid. The rest of 30% was decided to be paid on the date of registration of the sale deed, and the plaintiff had informed the defendant to accept the money and register the sale deed in Page 9 of 10 Downloaded on : Wed Nov 08 20:55:17 IST 2023 NEUTRAL CITATION C/SA/571/2023 ORDER DATED: 08/11/2023 undefined his favour.
9. In view of the above, this Court does not find any reason to interfere in the judgment of the appellate Court. No substantial question of law requires to be raised, as has been adequately dealt with by the appellate Court. Thus, this Second Appeal fails on merits, hence, it is dismissed. Connected Civil Application also stands disposed of accordingly.
(GITA GOPI,J) Pankaj Page 10 of 10 Downloaded on : Wed Nov 08 20:55:17 IST 2023