Bennada Suri Babu vs Kella Krishnaveni
2022 Latest Caselaw 1968 AP

           HON'BLE SRI JUSTICE SUBBA REDDY SATTI

                  SECOND APPEAL No.91 of 2021

JUDGMENT:

Assailing the judgment and decree dated 11.11.2020 in

A.S.No.40 of 2009 on the file of II Additional District and

Sessions Judge for Trial of Offences against Women,

Srikakulam, confirming the judgment and decree dated

12.03.2009 in O.S.No.50 of 2005 on the file of Additional Senior

Civil Judge, Srikakulam the appeal is preferred.

2. For the sake of convenience and brevity, the parties herein

are referred to as they are arrayed in the suit.

3. Plaintiff filed suit O.S.No.50 of 2005 against the appellant

and 2nd respondent herein seeking specific performance of

agreement of sale dated 23.11.2004 or in alternative for refund

of advance amount of Rs.50,001/- with interest from the date of

execution of sale agreement till the date of realization with costs.

4. The averments, in brief, in the plaint are that 1st

defendant Bennada Suribabu filed suit O.S.No.433 of 2000 on

the file of Principal Junior Civil Judge, Srikakulam against the

husband of plaintiff and two others for declaration,

consequential permanent injunction and also Mandatory

injunction in respect of joint passage and a wall constructed

therein. When the suit O.S.No.433 of 2000 ripen for trial,

plaintiff therein filed affidavit in lieu of chief examination and an

advocate commissioner was appointed to record the cross

examination of P.W.1. While so, on 22.11.2004, plaintiff in

O.S.No.433 of 2000 i.e. Bennada Suribabu and one of the

defendants by name K.Adinarayana compromised the matter

and according to the said compromise, the plaintiff therein

agreed to sell his tiled house with appurtenant vacant site

bearing door No.10-16-8 with T.S.No.69/P situated in Etcherla

veedhi, Srikakulam for an amount of Rs.2,35,000/- and

accordingly learned advocate commissioner filed memo to that

effect before the Principal Junior Civil Judge, Srikakulam

without recording the cross exanimation. As a result suit

O.S.No.433 of 2000 was dismissed on 25.11.2004.

It was further pleaded that pursuant to the said

compromise, 1st defendant herein by name Bennada Suribabu

executed agreement of sale dated 23.11.2004 in respect of plaint

schedule property bearing door No.10-16-8 for an amount of

Rs.2,35,000/-, for the purpose of family expenses and to

develop other properties. Rs.50,001/- was received as advance.

As per the terms of agreement of sale, plaintiff has to pay

balance of sale consideration on or before 10.02.2005 and on

that day, defendant has to execute sale deed in favour of the

plaintiff at his expense. Plaintiff along with her husband

informed the 1st defendant that she is ready with the balance of

sale consideration and requested the 1st defendant to execute

the sale deed by receiving balance of Rs.1,85,000/-. However, 1st

defendant dodged the issue. Having suspected the evil intention

plaintiff got issued a legal notice dated 07.02.2005 demanding

the defendants to execute registered sale deed by receiving

balance sale consideration of Rs.1,85,000/-. Having received the

said notice on 15.02.2005, defendants neither issued the reply

nor executed the sale deed. Hence, the suit was filed for the

reliefs stated supra.

5. The 2nd defendant is son of 1st defendant, being minor

represented by mother-guardian.

6. 1st Defendant filed separate written statement and denied

the averments in plaint with regard to filing of suit O.S.No.433

of 2000, appointment of advocate commissioner to record his

evidence; compromising the suit; receiving of Rs.50,000/- and

execution of agreement of sale and receiving legal notice. He

contended that boundaries as well as extent of schedule

property are not correct and the valuation of schedule house is

not less than Rs.15,00,000/- as per market value. He further

contended that he never instructed the advocate commissioner

to file memo before the Court in O.S.No.433 of 2000; that he is

not aware of the advocate commissioner and no evidence was

recorded; that he filed suit O.S.No.433 of 2000 when the

husband of plaintiff obstructed the defendants from passing

through joint passage; that signatures of defendant were

obtained on empty conquest papers representing that they are

required for Lok Adalat to effect compromise; that husband of

plaintiff played fraud and created agreement of sale dated

23.11.2004; that agreement of sale is forged, invalid and illegal

and the suit is barred by limitation and, he thus prayed the

Court to dismiss the suit.

7. Written statement was filed on behalf of 2nd defendant.

Averments in brief are that agreement of sale dated 23.11.2004

allegedly executed by 1st defendant in favour of the plaintiff is

not true, valid and binding on the 2nd defendant and in fact, it

was forged and created by husband of plaintiff; that agreement

of sale does not bind 2nd defendant, being minor; that 1st

defendant addicted to bad vices and acted detrimental to the

interests of minor; that there was no necessity for the 1st

defendant to execute agreement of sale; that 1st defendant drove

away 2nd defendant and his mother and eventually prayed the

Court to dismiss the suit.

8. During the trial, plaintiff examined herself as P.W.1 and

got examined P.Ws.2 to 5. Exs.A-1 to A-5 were marked. On

behalf of defendants, D.Ws.1 to 6 were examined and Exs.B-1 to

B-16 were marked.

9. Trial Court after evaluating the oral and documentary

evidence held that the plaint schedule property is the self

acquired property of 1st defendant. He purchased the same

under a registered sale deed dated 03.12.1988, Ex.B-5. Trial

Court recorded finding that defendants 1, 2 and D.W.4, (wife of

1st defendant and mother of 2nd defendant), are living under one

roof and D.W.1 is managing his family from the income derived

from his profession of tailoring. Trial Court also recorded finding

with regard to 1st defendant filing suit O.S.No.433 of 2000,

appointment of an advocate commissioner, compromise entered

into between the 1st defendant in the present suit and defendant

in O.S.No.433 of 2000 and filing of memo into the Court and

eventually held that agreement of sale entered into on

23.11.2004 is true and correct. Trial Court also considered the

evidence of P.W.4, Advocate Commissioner, appointed to record

the evidence of plaintiff in O.S.No.433 of 2000 i.e. 1st defendant

in the present suit. Trial Court also recorded finding with regard

to filing memo in O.S.No.433 of 2000 not pressing the suit

basing on Exs.A-4 and A-5. Trial Court also came to conclusion

that plaintiff proved Ex.A-1 and also considered the evidence of

P.W.3, attestor of Ex.A-5 in that connection. Trial Court also

considered the evidence of D.Ws.2 and 3, who in turn deposed

about the dispute in O.S.No.433 of 2000 and did not state

anything with regard to schedule property in the present suit.

Trial Court also meticulously considered the evidence of D.Ws.5,

(sister of D.W.4) and D.W.6 and came to conclusion that D.Ws.5

and 6 supported the case of plaintiff rather than defendants.

Trial Court recorded finding that the plaintiff is always ready

and willing to perform her part of contract. Trial Court relied

upon the evidence of P.W.1 and Exs.A-1 and A-2 and came to

the conclusion that plaintiff not only averred in the plaint with

regard to readiness and willingness, but also proved the same.

Eventually, Trial Court decreed the suit and directed the

defendants to execute sale deed in favour of plaintiff within two

months from the date of judgment after receiving balance of sale

consideration. Trial Court also directed the plaintiff to pay

balance of sale consideration or deposit before the Court.

10. Aggrieved by the well-considered judgment of the trial

Court, 1st defendant filed A.S.No.40 of 2009. Before the Lower

Appellate Court, it was contended that the plaintiff failed to

prove the agreement; that the plaint schedule property is the

ancestral property, wherein 2nd defendant is having undivided

share. Finally it was contended that suit is one for specific

performance, basing on equity, the plaintiff may be given

alternative remedy of refund of advance amount.

11. Basing on the said contentions, the lower Appellate Court

framed necessary points for consideration. Pending the appeal,

2nd defendant attained majority and he was declared as major as

per orders in I.A.No.241 of 2019 dated 02.01.2020. Lower

appellate Court, in view of contentions raised by the appellant

that agreement of sale does not bind the 2nd defendant, on a

consideration of oral and documentary evidence, eventually held

that plaint schedule property was purchased by 1st defendant/

D.W.1 under Ex.B-5 and it is his self-acquired property. Lower

appellate Court also has taken into consideration the evidence

of D.W.4, mother of 2nd defendant and wife of 1st defendant,

who, in turn, admitted that 1st defendant purchased the suit

schedule property with his own earnings. Lower appellate Court

also considered truth or otherwise of Ex.A-1 agreement of sale

and having considered the evidence of P.Ws.1 to 3 and 5, it

came to the conclusion that Ex.A-1 is true, valid and binding on

defendants. Lower appellate Court also considered the evidence

of P.W.4, practicing advocate, who was appointed as an

advocate commissioner to record the cross examination of P.W.1

in O.S.No.433 of 2000 and considered the compromise between

the parties and filing of Ex.A-4 memo informing settlement of

dispute and Ex.A-5 memo not pressing the suit O.S.No.433 of

2000. Lower appellate Court being final fact finding Court also

considered the evidence of D.Ws.2 to 6 very minutely. Lower

appellate Court also considered the aspect of readiness and

willingness of plaintiff qua Ex.A-1 agreement of sale. After

appreciating both oral and documentary evidence on record and

also the legal aspects, it came to the conclusion that the plaintiff

is always ready and willing to perform her part of contract and

in fact, even before lapse of agreed time, plaintiff sent notice

under Ex.A-2 and expressed her readiness to perform her part

of contract and filed the suit without any delay. Eventually,

Lower Appellate Court dismissed the appeal by judgment dated

11.11.2020. Aggrieved by the said concurrent findings of fact

recorded by the Courts below, the above second appeal is filed.

12. Heard Sri A.Radhakrishna, learned counsel for appellant.

13. Learned counsel for the appellant would contend that the

plaintiff failed to prove her readiness and willingness and hence,

Courts below ought not to have decreed the suit. He would

further contend that the plaintiff failed to prove execution of

Ex.A-1. He further contended that plaintiff came to the Court

with unclean hands, as such she is not entitled to discretionary

relief of specific performance and he prayed to allow the appeal.

14. The following are substantial questions of law arise for

consideration in the second appeal:

1) Whether the plaintiff is ready and willing to perform her part of contract?

2) Whether the plaintiff is non-suited on the ground of approaching the Court with unclean hands?

3) Whether the defendant came to the Court with unclean hands and hence is not entitled to plead equity?

15. Dealing with the scope of Section 100 of CPC, the Hon'ble

Apex Court in Kulwant Kaur and Ors vs. Gurdial Singh Mann

(Dead) By Lrs. and Ors.1 held as follows:

"Section 100 of CPC introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to say that the Code of Civil Procedure Amendment Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact even if erroneous will generally not be disturbed but where it is found that the findings stands vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to dealt with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-à-vis the Concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication what is required is a categorical finding on the part of the High Court as to perversity."

1 (2001) 4 SCC 262

16. The Hon'ble Apex Court in Yadavarao Dajiba Shrawane

Vs. Nanilal Harakchand Shah (Dead) and Ors.2 held thus:

"From the discussions in the judgment it is clear that the High Court has based its findings on the documentary evidence placed on record and statements made by some witnesses which can be construed as admissions or conclusions. The position is well settled that when the judgment of the final Court of fact is based on mis- interpretation of documentary evidence or on consideration of inadmissible evidence or ignoring material evidence the High Court in second appeal is entitled to interfere with the judgment. The position is also well settled that admission of parties or their witnesses are relevant pieces of evidence and should be given due weightage by Courts. A finding of fact ignoring such admissions or concessions is vitiated in law and can be interfered with by the High Court in second appeal. Since the parties have been in litigating terms for several decades the records are voluminous. The High Court as it appears from the judgment has discussed the documentary evidence threadbare in the light of law relating to their admissibility and relevance."

17. In Leela Soni vs. Rajesh Goyal3, the Hon'ble Apex Court

held thus:

"21. It will be apt to refer to Section 103 of C.P.C. which enables the High Court to determine the issues of fact:

"103. Power of High Court to determine issue of fact.- In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,

(a) which has not been determined by the Lower Appellate Court or both by the Court of first instance and the Lower Appellate Court, or

2002 (6) SCC 404

2001 (7) SCC 494

(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in section 100."

22. The section, noted above, authorizes the High Court to determine any issue which is necessary for the disposal of the second appeal provided the evidence on record is sufficient, in any of the following two situations : (1) when that issue has not been determined both by the trial court as well as the Lower Appellate Court or by the Lower Appellate Court; or (2) when both the trial court as well as the Appellate Court or the Lower Appellate Court has wrongly determined any issue on a substantial question of law which can properly be the subject matter of second appeal under Section 100 of C.P.C."

18. The Hon'ble Apex Court in Hero Vinoth Vs. Seshammal4,

held thus:

"19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was

AIR 2009 SC 1481

based upon inadmissible evidence or arrived at by ignoring material evidence.

It was furthermore held:

23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. (See Santosh Hazari v. Purushottam Tiwari MANU/SC/0091/2001).

24. The principles relating to Section 100 CPC, relevant for this case, may be summerized thus:-

(i) ...

(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting

contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law."

19. In the light of the authoritative pronouncements by the

Hon'ble Apex Court on the scope of interference by the High

Court in second appeal, this Court while exercising jurisdiction

under Section 100 of CPC should perceive whether substantial

question of law involved in the appeal. This Court cannot re-

appreciate the evidence and interfere with the concurrent

findings of the Court below where the Courts below have

exercised the discretion judicially. Further the existence of

substantial question of law is the sine qua non for exercising

jurisdiction. This Court cannot substantiate its own opinion

unless the findings of the Court are manifestly perverse and

contrary to the evidence on record.

20. Whether the plaintiff is ready and willing to perform her

part of contract?

21. Plaintiff examined herself as P.W.1 and also examined her

husband as P.W.2, attestor as P.W.3, Advocate Commissioner in

O.S.No.433 of 2000 as P.W.4 and scribe of Ex.A-1 as P.W.5.

Ex.A-1 agreement was entered into on 13.11.2004. Total sale

consideration is Rs.2,35,000/-. Out of the total sale

consideration, 1st defendant received Rs. 50,001/- on the date of

agreement of sale. As per the contract of sale, balance sale

consideration is to be paid on or before 10.02.2005. Plaintiff

averred in the plaint that she is always ready and willing to

perform her part of contract and in fact 1st defendant dodged the

issue; that having suspected the evil intention, plaintiff got

issued legal notice on 07.02.2005 and the same was received by

1st defendant on 15.02.2005.

22. The requirement under Section 16 (c) of Specific Relief Act

is that the plaintiff has to plead and prove his/her readiness

and willingness. Whether the plaintiff proved her readiness and

willingness to perform her part of contract essentially lies in the

domain of Courts of fact. If the findings recorded by the Courts

below are without any evidence or perverse, this Court can

certainly scrutinize the same in exercise of jurisdiction under

Section 100 of CPC.

23. Readiness and willingness are quite distinct and different

in the context of Section 16 (c) of the Specific Relief Act.

Readiness connotes financial capacity of one who seeks to

enforce specific performance. Willingness distinctly refers to his

personal or mental inclination to seek performance of the

contract. The two words employed by the Statute are not mere

surplus age for the other or even words with the connotation

that have closely resembling status. The two being distinct,

both must be pleaded and proved independently of the other

throughout, from the time the contract is entered into and till

the suit is filed, and also pending suit till a decree is passed.

24. The Hon'ble Apex Court in Sukhwinder Singh Vs.

Jagroop Singh and Ors.5, held that the suit being one for

specific performance of contract on payment of balance sale

consideration, the readiness and willingness was required to be

proved by the plaintiff and was to be considered by the Courts

below as a basic requirement if a decree for specific performance

is to be granted.

25. In Sughar Singh Vs. Hari Singh (dead) through Lrs and

others6 reported in the Hon'ble Apex Court held as follows:

"Now, so far as the findings recorded by the High Court and observations made by the High Court on Section 20 of the Act and the observation that even if the agreement is found to be duly executed and the plaintiff is found to be ready and willing to perform his part of the agreement, grant of decree of specific performance is not automatic and it is a discretionary relief is concerned, the same cannot be accepted and/or approve. In such a case many a times it would be giving a premium to the dishonest conduct on the part of the defendant/executants of agreement to sale. The discretion under Section 20 of the Act is required to be exercised judiciously soundly and reasonably. The plaintiff cannot be punishing by refusing relief of specific performance despite the fact that agreement of sale in his favour has been established and proved that he is found always to be ready and willing to perform his part of the contract. Not to grant a decree of specific performance despite the agreement of sale is proved; part sale consideration is proved and the plaintiff is ready and willing to perform his part of the contract to encourage the dishonesty. In such a situation, the balance should tilt in favour of the plaintiff rather than in favour of the defendant-executant of the agreement of sale while exercising discretion judiciously."

AIR 2020 SC 4865 = MANU/SC/0096/2020

2021 SCC Online SC 975

26. In this instant case, agreement was entered into on

23.11.2004 and as per the terms of contract, plaintiff has to pay

balance sale consideration of Rs.1,85,000/- on or before

10.02.2005. Having paid of Rs.50,001/- as advance, since the

1st defendant is not coming forward, the plaintiff issued legal

notice on 07.02.2005 and the same was received by 1st

defendant on 15.02.2005. It is also pertinent to mention here

that 1st defendant having received Ex.A-2 legal notice on

15.02.2005, issued reply notice under Ex.B-11 on 14.03.2005.

In the meantime, suit was filed on 09.03.2005. The evidence of

P.W.1 is consistent that she is always ready and willing to

perform her part of contract. Nothing contra was elicited during

her cross examination. The Courts below recorded findings after

meticulously considering both oral and documentary evidence.

In the absence of any perversity of findings of facts recorded by

the Courts below, no interference is warranted by this Court in

exercise of jurisdiction under Section 100 of CPC.

27. The other contention of learned counsel for appellant is

that Ex.A-1 is not true and valid. It is pertinent to mention here

that 1st defendant filed suit O.S.No.433 of 2000 against the

husband of plaintiff herein. When the suit O.S.No.433 of 2000

was coming for his evidence, he filed affidavit in lieu of chief

examination and an advocate commissioner was appointed to

record his cross examination. At that point of time, compromise

was entered into by the husband of plaintiff and 1st defendant

under Ex.A-4, which was filed into the Court in O.S.No.433 of

2000. Plaintiff in O.S.No.433 of 2000 also filed Ex.A-5 memo

seeking withdrawal of the suit. Finally, D.W.1, 1st defendant and

D.W.4, wife of 1st defendant also admitted about execution of

Ex.A-1 agreement of sale. Upon consideration of evidence,

findings recoded by the Courts with regard to genuineness of Ex

A-1 do not call for any interference from this Court.

28. With regard to contention of learned counsel for appellant

to apply equity principle, that "He who seeks equity must do

equity" and "a person who seeks equity must come with clean

hands". Defendant having pleaded equity is not expected to

come to the Court with unclean hands, like, denying agreement

of sale, pleading forgery and denying filing of suit O.S.No.433 of

2000 itself. In Veeramreddy Nagabhushana Rao Vs. Jyothula

Venkateswara Rao7, it was held thus:

"Once the defendant has failed to prove that the suit agreement of sale is fabricated, all the other defenses taken by him such as readiness and willingness of the plaintiff and there is no requirement of selling the suit schedule property are all being supplementary, basing on which equitable relief of decreeing the suit cannot be refused to the plaintiff, when it is otherwise legal and justified to do so."

It was further observed that

"It is one thing to admit the suit agreement of sale and to contend that the plaintiff has failed to establish readiness, but it is altogether a different thing to take a defence that the suit agreement of sale is fabricated and still require the plaintiff to establish readiness and willingness. Therefore the plea put forth by the defendant that he signed on blank papers and

2011 (1) ALT 600

plaintiff fabricated the agreement of sale Ex.A-1 does not merit consideration."

29. The 1st defendant in the instant case also having pleaded

forgery and blank papers theory, failed to prove any of the

aspects and in fact, he came to the Court with unclean hands

and he is not entitled to equity.

30. Thus, the findings of the facts recorded by the Courts

below do not warrant any interference of this Court under

Section 100 of CPC. Hence, the second appeal is liable to be

dismissed, however, without costs.

31. Accordingly, the second appeal is dismissed at admission

stage. No order as to costs.

As a sequel, all the pending miscellaneous applications

shall stand closed.

_________________________ SUBBA REDDY SATTI, J 22nd April, 2022

PVD