NEUTRAL CITATION
C/SA/14/2023 ORDER DATED: 26/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 14 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/SECOND APPEAL NO. 14 of 2023
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PARESH GHANSHYAMBHAI THAKKAR
Versus
KUNDANLAL GAURISHANKAR VYAS
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Appearance:
MS BHAVNA V SHAH(11047) for the Appellant(s) No. 1
MR BJ TRIVEDI(921) for the Respondent(s) No. 1
MR JT TRIVEDI(931) for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 26/09/2023
ORAL ORDER
1. Second Appeal No.14 of 2023 has been filed at the instance of the appellant herein original plaintiff against the judgment and decree passed by the learned 12 th Additional District Judge, Rajkot in Regular Civil Appeal No.3 of 2019 on 5.11.2022 whereby the learned Appellate Judge was pleased to quash and set aside judgment and order dated 25.10.2018 passed in Regular Civil Suit No.110 of 1995 by the learned 2nd Additional Senior Civil Judge, Rajkot.
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2. The facts leading to the filing of this Second Appeal may be summarized as follows: -
2.1 It is the case of the appellant - original plaintiff that the appellant has filed Special Civil Suit No.110 of 1995 against the respondent - original defendant for specific performance of contract and permanent injunction in respect of disputed suit property i.e. a residential house constructed on land Block No.37 admeasuring 205-0 square yards situated in Malaviya Nagar, Rajkot (hereinafter referred to as the "disputed suit property"). It is averred in the suit that the defendant had decided to sell the disputed suit property along with tenancy right of three rooms, kitchen, store and varanda with G.M. Aacharya, who is having possession as a tenant in it and the remaining property is in possession of defendant to the plaintiff and for that he has executed an agreement to sell on 13.07.1995 for a consideration of Rs.2,25,000/- and also received Rs.10,000/- as earnest money from the plaintiff. Page 2 of 19 Downloaded on : Wed Sep 27 20:46:45 IST 2023
NEUTRAL CITATION C/SA/14/2023 ORDER DATED: 26/09/2023 undefined 2.2 It is further averred in the suit that the plaintiff is always ready and willing to pay up the remaining consideration amount and is also ready and willing to perform his part of the alleged agreement to sell. It is further averred in the suit that due to huge rise in market value of the disputed property, the defendant is not ready to comply with the agreement to sell and is trying to sell the disputed property to some one else. It is further averred in the suit that 90 days period was fixed but the said period was not an essence of the contract and the said agreement to sell was legal and valid though the defendant issued a false and fabricated notice on 30.08.1995 for cancellation of alleged agreement to sell on the ground that it is not signed by both the parties and it is a unilateral agreement and for that, the suit came to be filed by the plaintiff against the defendant for specific performance of the agreement to sell and permanent injunction.
2.3 In the said suit, the defendant has been duly served. The defendant appeared in the suit and filed the Page 3 of 19 Downloaded on : Wed Sep 27 20:46:45 IST 2023 NEUTRAL CITATION C/SA/14/2023 ORDER DATED: 26/09/2023 undefined written statement at Exh.10 contending inter alia that the suit of the plaintiff is false, frivolous, vexatious and not 'maintainable in the eye of law and the same is required to be dismissed. It is also contended by the defendant that the agreement to sell is a unilateral agreement and against the public policy which is not tenable in the eye of law as there was a correction made by the plaintiff below the signature of the defendant and the witnesses without consent of the defendant and thus the plaintiff carried out fraud in the alleged agreement to sell. It is also contended by the defendant in the said suit that the suit is premature as no notice has been issued by the plaintiff to the defendant prior to institution of the suit regarding his readiness and willingness towards the agreement to sell. 2.4 The learned trial Court framed the issues at Exh.67 and after appreciating the oral as well as documentary evidence and hearing the learned advocates for both the sides, the learned trial Court was pleased to allow the suit partly and ordered the defendant to execute Page 4 of 19 Downloaded on : Wed Sep 27 20:46:45 IST 2023 NEUTRAL CITATION C/SA/14/2023 ORDER DATED: 26/09/2023 undefined the registered sale deed for the disputed suit property in favour of the plaintiff.
2.5 Being aggrieved and dissatisfied with the judgment and order dated 25.10.2018 and the decree dated 1.11.2018 passed by the learned trial Court, the defendant has preferred Regular Civil Appeal No.3 of 2019 before the court of learned 12th Additional District Judge, Rajkot. 2.6 Learned Appellate Court vide its judgment and order dated 5.11.2022 was pleased to allow the appeal preferred by the respondent herein - original defendant and quashed and set aside the judgment and order dated 25.10.2018 and the decree dated 1.11.2018 passed by the learned 2nd Additional Senior Civil Judge, Rajkot in Special Civil Suit No.110 of 1995. Being aggrieved by the same, the appellant herein - original plaintiff has preferred the present Second Appeal before this Court and framed the following substantive questions of law.
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NEUTRAL CITATION C/SA/14/2023 ORDER DATED: 26/09/2023 undefined "(a) Whether the finding of the learned Appellate Court reversing the finding of the learned Trial Court, that execution of the original agreement to sale is not proven by the Appellant- Plaintiff, even though the Respondent-Defendant has admitted his signature is perverse warranting interference?
(b) Whether the finding of the learned Appellate Court reversing the finding of the learned Trial Court, that execution of original agreement to sale is not proven by the Appellant- Plaintiff, even though the Respondent-Original Defendant has admitted that he has received Rs.
10,000 as an earnest money pursuant to execution of agreement to sale, is illegal and contrary to record?
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(c) Whether the finding of the learned Appellate Court is vitiated by reliance placed on a photocopy of an agreement to sale produced by Respondent-Original Defendant than on an original copy of the agreement to sale produced by the Appellant-Plaintiff before the Trial Court?
(d) Whether the findings of the learned Appellate Court solely based on conjectures are correct that the Appellant-Plaintiff added his writings and signature below the signature of Respondent- Original Defendant in original agreement to sale, when no evidence was produced by the Respondent-Original Defendant to sustain this observation?
(e) Whether the finding of the learned Appellate Court is correct that the Appellant- Plaintiff has failed to prove his willingness to Page 7 of 19 Downloaded on : Wed Sep 27 20:46:45 IST 2023 NEUTRAL CITATION C/SA/14/2023 ORDER DATED: 26/09/2023 undefined perform his part of the contract because he failed to give a reply to Respondent-Original Defendant's notice or failed to issue any notice in lieu of agreement to sale, though in law there is no requirement to either issue any notice or reply to any notice?
(f) Whether the finding of the learned Appellate Court reversing the finding of the learned Trial Court, that the Appellant-Plaintiff is not ready and willing to perform his part of contract, even though it is proven that the Appellant-Plaintiff immediately proceeded to file suit for specific performance against Respondent- Original Defendant after receipt of notice from him.
(g) Whether the learned Appellate Court failed in exercising its judicious discretion in Page 8 of 19 Downloaded on : Wed Sep 27 20:46:45 IST 2023 NEUTRAL CITATION C/SA/14/2023 ORDER DATED: 26/09/2023 undefined favour of Appellant-Plaintiff once Respondent- Defendant admitted that he had executed original agreement to sell and further received Rs. 10,000 as an earnest money pursuant to it?
(h) Whether the learned Appellate Court was correct in overturning the judgement of the Trial Court which was arrived at based on after detailed analysis of evidence on record?"
3. Heard learned advocate Ms.Bhavna V.Shah for the appellant - original plaintiff and learned advocate Mr.Brijesh Trivedi for the respondent - original defendant.
4. Learned advocate Ms.Bhavna Shah appearing for the appellant - original plaintiff submits that the agreement to sell in question cannot be said to be a unilateral agreement as the agreement to sell contains signatures of both the parties. Ms.Shah has further submitted that the agreement to sell in question is not forged as the same is Page 9 of 19 Downloaded on : Wed Sep 27 20:46:45 IST 2023 NEUTRAL CITATION C/SA/14/2023 ORDER DATED: 26/09/2023 undefined not proved as forged through any cogent and reliable evidence. Ms.Shah has further submitted that the learned Appellate Court has erred in placing reliance on a photocopy of agreement to sell produced by the defendant than the original agreement to sale produced by the plaintiff. Ms.Shah has further submitted that the learned Appellate Court has further erred in taking into consideration irrelevant factors to reach a conclusion that the original agreement to sell is not a genuine when the respondent herein original defendant by his own admission admitted his signature on the original agreement to sell produced by the plaintiff. Ms.Shah has further submitted that the learned Appellate Court has erred in directly coming to the conclusion without the respondent herein original defendant adducing any evidence that the writing below the signature of the witnesses in agreement to sell was added later on in the absence of the defendant and without his consent. 4.1 Ms.Shah has further submitted that the learned Appellate Court has erred in appreciating that in his legal Page 10 of 19 Downloaded on : Wed Sep 27 20:46:45 IST 2023 NEUTRAL CITATION C/SA/14/2023 ORDER DATED: 26/09/2023 undefined notice, the respondent herein original defendant has categorically admitted that he had received Rs.10,000/- from the appellant herein original plaintiff as earnest money and this very admission by the respondent herein proves beyond any doubt that there was an agreement to sell between the appellant and the respondent. Ms.Shah has further submitted that the learned Appellate Court has erred in directly presuming that the writing below the signature of the witnesses in the agreement to sell was added by the appellant original plaintiff to escape from whatever is stated by the respondent herein original defendant in his legal notice about the unilateral agreement. Ms.Shah has further submitted that whether the plaintiff was ready and willing to perform his part of contract may be inferred from the facts and circumstances of a particular case and it is not necessary for the appellant herein original plaintiff to produce ready money to show his willingness to perform his part of the contract and when it is found that the appellant herein orignal plaintiff is ready and willing to perform his part of agreement, grant of decree of specific Page 11 of 19 Downloaded on : Wed Sep 27 20:46:45 IST 2023 NEUTRAL CITATION C/SA/14/2023 ORDER DATED: 26/09/2023 undefined performance is automatic and it is not a discretionary relief. Lastly, Ms.Shah has requested this Court to allow the present Second Appeal.
5. On the other-hand, learned advocate Mr.Brijesh Trivedi appearing for the respondent herein original defendant has vehemently opposed the present appeal and supported the judgment and order passed by the learned Appellate Court by contending that the plaintiff has filed suit for specific performance of the agreement to sell against the defendant which was executed by the defendant on 13.7.1995 but the plaintiff carried out correction without the consent of the defendant and has committed a fraud. Mr.Trivedi has further submitted that the alleged agreement is an unilateral agreement and not enforceable at law. Mr.Trivedi has further submitted that the plaintiff has failed to prove his readiness and willingness towards the agreement to sell and prior to filing of the present suit, no notice has been issued to the defendant though the notice of the defendant was duly served upon the plaintiff. Mr.Trivedi Page 12 of 19 Downloaded on : Wed Sep 27 20:46:45 IST 2023 NEUTRAL CITATION C/SA/14/2023 ORDER DATED: 26/09/2023 undefined has further submitted that the plaintiff has not furnished any documentary evidence regarding his financial capacity though he has admitted in the cross examination about his bank account which had a balance of Rs.3000/-. Mr.Trivedi has further submitted that the findings recorded by the learned trial court are absolutely erroneous, illegal and against the settled principles of law as the transaction of alleged agreement to sell is not proved by the plaintiff through cogent evidence. Mr.Trivedi has further submitted that the earnest money paid by plaintiff is very less against the total consideration amount and there is no evidence furnished by the plaintiff to prove his financial capacity regarding payment of remaining amount of consideration and the plaintiff has failed to show that he is ready and willing to pay the remaining amount of consideration. Lastly, Mr.Trivedi has urged this Court to dismiss the present Second Appeal.
6. Having heard the learned advocates for the respective parties and considering the judgment of the Page 13 of 19 Downloaded on : Wed Sep 27 20:46:45 IST 2023 NEUTRAL CITATION C/SA/14/2023 ORDER DATED: 26/09/2023 undefined learned trial court as well as the learned appellate court, it is not in dispute that the suit property i.e. residential house constructed on land of Block No.37 admeasuring 205-0 square yards situated in Malaviya Nagar, Rajkot belongs to the respondent herein - original defendant and the defendant has decided to sell the suit property along with tenancy right of three rooms, kitchen, store and varanda with G.M. Aacharya, who is having possession as a tenant there in and for that the defendant has executed an agreement to sell on 13.07.1995 for a consideration of Rs.2,25,000/- and has also received Rs.10,000/- towards the earnest money from the plaintiff. It is the contention of the plaintiff before the learned Courts below that the plaintiff is always ready and willing to pay up the remaining consideration amount and also ready and willing to perform his part of the alleged agreement to sell and due to huge rise in market value of the disputed property, the defendant is not ready to comply with the agreement to sell and trying to sell the disputed property to some one else. It is also on record that the defendant has issued the notice on Page 14 of 19 Downloaded on : Wed Sep 27 20:46:45 IST 2023 NEUTRAL CITATION C/SA/14/2023 ORDER DATED: 26/09/2023 undefined 30.08.1995 for the cancellation of alleged agreement to sell on the ground that it is not signed by both the parties and it is a unilateral agreement and for that, the suit came to be filed by the plaintiff against the defendant for specific performance and permanent injunction. The learned trial court, on appreciation of the evidence, was pleased to partly allow the suit and directed the defendant to execute the registered sale deed in favour of the plaintiff. Being aggrieved by the same, the defendant has preferred the appeal before the learned Appellate Court and on appreciation of evidence, the learned Appellate Court was pleased to allow the said appeal filed by the respondent herein - original defendant.
7. Section 100 of the Code of Civil Procedure relates to the Second Appeal and sub-section (3) of Section provides that in an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal and sub-section (4) of section 100 provides that where the High Court is satisfied that a Page 15 of 19 Downloaded on : Wed Sep 27 20:46:45 IST 2023 NEUTRAL CITATION C/SA/14/2023 ORDER DATED: 26/09/2023 undefined substantial question of law is involved in any case, it shall formulate that question. Second Appeal is not totally debarred but it is admissible provided such a Second Appeal involves a substantial question of law and/or out of the judgment and decree of the courts below any substantial question of law arises. Thus, Second Appeal is required to be admitted only if there is substantial question of law.
8. In the present appeal, the appellant has formulated the proposed substantial questions of law. The proposed questions of law are in fact not the substantial questions of law but the same are questions of facts. In exercise of powers under section 100 of the Code of Civil Procedure, the jurisdiction is confined to substantial question of law only. Here in this case, no substantial question of law has been raised so as to enable this Court to admit the present appeal. The scope of Second Appeal under section 100 is limited. As stated above, the Second Appeal is competent only if it involves, at the stage of admission, Page 16 of 19 Downloaded on : Wed Sep 27 20:46:45 IST 2023 NEUTRAL CITATION C/SA/14/2023 ORDER DATED: 26/09/2023 undefined substantial question of law. The High Court can interfere with the findings of fact, if the findings are perverse but the perversity should be apparent on the face of record.
9. In the case of Easwari Versus Parvathi and others, reported in (2014) 15 SCC 255, it is held that High Court can entertain a Second Appeal on a substantial question of law and it has absolutely no jurisdiction to entertain the Second Appeal on the ground of erroneous findings of fact, however, gross error seems to be looked into. The High Court can interfere in the findings of facts in the Second Appeal if the appellate court has not properly appreciated the evidence on record.
10. In the present case, on perusal of the deposition of the plaintiff at Exh.73 i.e. examination-in-chief as well as the Exh.1 i.e. plaint, nowhere it is stated that so called agreement to sell is prepared on the stamp paper of Rs.20/- and hence, the important aspect regarding execution is missing on the part of the plaintiff. Even otherwise, on Page 17 of 19 Downloaded on : Wed Sep 27 20:46:45 IST 2023 NEUTRAL CITATION C/SA/14/2023 ORDER DATED: 26/09/2023 undefined perusal of the cross examination of the plaintiff, it can be noticed that the plaintiff does not know anything about the execution of the alleged agreement to sell produced at Exh.77. Even otherwise also, it can be noticed from the material placed on record that the plaintiff has failed to prove the execution of agreement to sell by leading cogent evidence. It has also come on record that both the witnesses of the so called agreement to sell have not been examined by the plaintiff and the deposition by the plaintiff as well as his witness are not sufficient to prove the execution of the so called agreement to sell which has been rightly appreciated by the learned First Appellate Court.
11. Considering the submissions made by learned advocates for both the sides and after examining findings of both the courts on the issue raised in the suit and upon examination of the judgment and order of the learned Appellate Court, learned advocate for the appellant - original plaintiff is unable to point out any infirmity, perversity or impropriety in the findings of the fact recorded Page 18 of 19 Downloaded on : Wed Sep 27 20:46:45 IST 2023 NEUTRAL CITATION C/SA/14/2023 ORDER DATED: 26/09/2023 undefined by the learned Appellate Court. Not only that the learned advocate for the appellant is unable to show that the finding recorded by the learned Appellate Court is without any evidence or there is any illegality in the findings.
12. This appeal, as stated above, is devoid of any substantial question of law. Learned Appellate Court has rightly decided the issue between the parties in the right perspective. As stated above, no substantial question of law arise in the present Second Appeal. The plaintiff has failed to prove his case before the learned Appellate Court. This Court does not find any substance in the present Second Appeal as the same is devoid of any merits both on facts and law and hence the same is dismissed at admission stage.
13. On dismissal of the main Second Appeal, the Civil Application No.1 of 2022 stands rejected.
(S. V. PINTO,J) H.M. PATHAN Page 19 of 19 Downloaded on : Wed Sep 27 20:46:45 IST 2023