Vitthalrao Shankarrao Khedkar ... vs Sau. Jasodabai Ganeshlal Sahu
2021 Latest Caselaw 14685 Bom

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                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 NAGPUR BENCH, NAGPUR

                                        Second Appeal No.212/2021
      Vitthalrao Shankarrao Khedkar (Dead) thr. his LRs. Vs. Sau. Jasodabai Ganeshlal Sahu
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Office notes, Office Memoranda of
Coram, appearances, Court's orders                              Court's or Judge's Orders
or directions and Registrar's orders.
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                 Shri K.P. Mahalle, Advocate for the Appellants.

                 CORAM : S.M. MODAK, J.

DATE : 7th OCTOBER, 2021.

01] Heard learned Advocate for the Appellants/original defendant.

02] Though the respondent/plaintiff is served, she has not appeared. The suit filed by the present respondent/plaintiff for specific performance was dismissed by the trial Court mainly for two reasons. One is proof as to readiness and willingness and second is not entering into witness-box by the plaintiff, but she gave the evidence through son. The plaintiff issued a suit notice dated 23rd July, 2008 asking for specific performance. Whereas, the defendant issued a notice dated 29th July, 2008 thereby cancelling the agreement on account of failure to pay the amount of consideration.

03] The trial Court has also framed an issue about committing breach of the agreement by the plaintiff. It was answered in the affirmative. The suit was dismissed. When the plaintiff filed the first appeal, it was allowed and the suit was decreed. That is how, the defendant has filed present appeal.

04] There is a focus on two main contentions. One is son has given evidence who was not having personal knowledge and

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ingredient of readiness and willingness cannot be said to have been proved. Second is there is no prayer in the plaint about termination done by the defendant as per the notice dated 29 th July, 2008 as illegal.

05] In support of both the contentions, appellants relied upon the judgments in the cases of Man Kaur (Dead) by Lrs. Vs. Hartar Singh Sangha reported in 2010 ALL SCR 2511 and I.S. Sikandar (Dead) by Lrs. Vs. K. Subramani & Others reported in (2013) 15 SCC

27.

06] At this stage, I am inclined to frame only one substantial question of law and it is on the basis of not proving the readiness and willingness through the plaintiff. The appellants are at liberty to argue for framing substantial question of law on the basis of "not seeking declaration that the termination is illegal". Because, it is true that the trial Court has referred to the termination notice at Exh.51. It is also true that there is an issue of readiness and willingness on one hand and proof by the defendant about breach of agreement by the plaintiff on the other hand. So, all the evidence need to be gone into. This substantial question can be agitated in future.

07] In view of that, the appeal is admitted. Notice be issued on the following substantial question of law--

Whether the first Appellate Court has committed wrong in accepting the evidence of son of the plaintiff on the point of readiness and willingness particularly when son has not deposed that he was having personal knowledge?

              08]              Matter be kept after twelve weeks.




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              Civil Application (CAS) No.559/2020

              01]              This Court has admitted the appeal by framing one

substantial question of law. It is true that respondent is served, but she has not appeared. There may be various reasons for that. Once she will come to know that stay is granted, there is every possibility that she will appear in this appeal. So, some time needs to be given to her.

02] Hence, stay is granted in terms of prayer Clause (1) for six months. Thereafter, the appellants can pray for the continuation of stay till the disposal of the appeal. If the respondent put in appearance earlier, stay application can be decided earlier. The appellants not to create third party interest in any manner above the suit land.

JUDGE

vijay