Janu Bhau Limbkar vs Sarjerao Vithalrao Bhoite
2021 Latest Caselaw 11519 Bom

                                            (1)


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                   SECOND APPEAL NO.724 OF 2014
                               WITH
                CIVIL APPLICATION NO. 12767 OF 2014

 Janu s/o Bhau Limbkar                                          = APPELLANT
                                                                (orig.Defendant)

          VERSUS

 Sarjerao Vithalrao Bhoite                                      = RESPONDENT
                                                                (Orig.Plaintiff)
                                            -----
 Mr.VB Anjanwatikar,Advocate for Appellant;
 Mr.KR and SK Doke,Advocates for Respondent.
                                         -----

                                     CORAM :        SMT.VIBHA KANKANWADI,J.

                                     DATE :         23rd August, 2021.
 PER COURT :-

1. Present appeal has been filed by original

defendant to challenge concurrent judgment and

decree passed by the lower Courts. Present

respondent-original plaintiff had filed Special

Civil Suit No.9/2005 for specific performance of

contract. The said suit came to be partly decreed

by learned 3rd Joint Civil Judge, Senior Division,

Osmanabad on 27.8.2009. The relief of specific

performance was rejected, however, the defendant

was directed to pay earnest amount of Rs.1,00,000/-

with interest @ 12 % per annum from the date of

suit till realization of the entire amount. The

said judgment and decree was challenged by the

present appellant-original defendant before the

District Judge-1, Bhoom by filing Regular Civil

Appeal No.452/2014 (Old RCA No.214/2009). The said

appeal came to be dismissed on 29.10.2014. Hence,

this Second Appeal.

2. Heard learned Advocates appearing for

the respective parties. In order to cut short it

can be stated that both of them have made

submissions in support of their respective

contentions.

3. It has been vehemently submitted on

behalf of the appellant that both the Courts below

have not considered the evidence and the law points

involved properly. The defendant had challenged

the execution of the agreement itself. He had

totally denied that he had gone to house of the

plaintiff in village Lanjeshwar along with

witnesses where the agreement to sell was executed.

He has also denied that the consideration amount

was fixed at Rs.4,00,000/- and he accepted the

amount of Rs.1,00 ,000/- at the time of execution

of the said agreement to sell in presence of the

witnesses. He is old aged illiterate person and

taking disadvantage of the said fact, the

plaintiff, with sole intention to get land of the

defendant, has prepared false and fabricated

document. Both the Courts below have unnecessarily

believed in the testimonies of the plaintiff and

the attesting witnesses in order to come to a

conclusion that the amount was paid. Substantial

questions of law are arising in this case,

requiring admission of the Second Appeal.

4. Per contra, learned Advocate appearing

for the respondent, supported the reasons given by

both the Courts below and submitted that, except

his own statement on oath, the defendant has not

adduced any other evidence to disprove the evidence

that was led by the plaintiff. In fact, the

learned Trial Judge has refused the relief of

specific performance and taking into consideration

the evidence of the defendant that he has laid

pipeline as well as erected the house in the suit

land, the discretion has been exercised and only

relief of refund of earnest amount together with

interest has been ordered. No substantial

questions of law are arising in this case.

5. At the outset, it is to be noted that

this Court, being Second Appellate Court, cannot go

much deeper into the facts of the case unless it is

shown that the findings, on the facts of both the

courts below, are perverse. Except denial, there

is nothing in the written statement of the

defendant and he has not taken any special defence

as such. It is also to be noted that both the

parties are residents of different villages. The

plaintiff had examined himself and the attesting

witness to the document and then it has been held

by the Trial Court that the agreement to sell

(Issar Pavati) Exhibit-39, has been proved. The

defendant, as aforesaid, except denial, has not

stated anything else in his examination-in-chief.

When he was coming with a case that the document is

falsely prepared, then steps ought to have been

taken to prove its falsity. As regards the thumb

mark on the agreement to sell (Exh. 39) is

concerned, the attesting witness has stated that it

was impressed upon the defendant in his presence.

There was no reason for the attesting witness to

speak against the defendant and no such

circumstance has been brought on record. The

cross-examination of the witnesses is only full of

suggestions, which they have denied. Under such

circumstance, when both the Courts below have

considered the said evidence and had come to a

conclusion that the agreement has been proved,

further consequences would follow.

6. Now, as regards the relief of specific

performance of contract is concerned, definitely,

Section 20 of the Specific Reliefs Act gives a

discretion to the Trial Court and taking into

consideration the fact that in spite of agreement

to sell in his favour, the plaintiff has not

resisted the defendant from laying down the

pipeline in the suit land and constructing the

house in the same. After construction of the

house, the defendant is residing there with his

family members. Therefore, the discretion has also

been properly and judiciously exercised by the

learned Trial Judge while rejecting the relief of

specific performance.

7. When it was proved that at the time of

execution of the agreement to sell, the amount of

Rs.1,00,000/- was given as earnest amount, then

definitely the plaintiff should get it refunded and

that too with interest. The first Appellate court

has also considered the rate of interest that is

granted by the learned Trial Judge and held that it

has been correctly granted. Under such

circumstance, there is absolutely no necessity to

interfere as no substantial questions of law, as

contemplated under Section 100 of CPC, are

arising . The Second Appeal stands dismissed.

Pending Civil application stands disposed of.

(SMT. VIBHA KANKANWADI) JUDGE LATER ON :

. The learned Advocate appearing for the

appellant after pronouncement of the order, seeks

continuation of the interim relief granted by this

Court. It appears that interim relief was granted

by this Court by order dated 22.12.2014 and it was

up to the returnable date of the notice i.e.

19.1.2015. Thereafter, it was continued till

13.2.2015 and again on that day, it was continued

till 27.2.2015. Further, it appears that when the

matter was on Board on 27.2.2015, on the request

of learned Advocate for the applicant, it was

adjourned to 27.3.2015, however, thereafter

learned Advocate for the appellant had not taken

the circulation of the matter and has not got it

extended till today. Under such circumstance,

though he submits that his client may approach the

Hon'ble Supreme Court, since the interim relief

had already expired in the year 2015, it cannot be

continued. Hence, oral request is rejected.

(SMT. VIBHA KANKANWADI) JUDGE

BDV