Patel Rashidaben Munafbhai vs Ketanbhai Mahendrabhai Jaiswal
2023 Latest Caselaw 8152 Guj

                                                                                  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

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

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:

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





                                                                                         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

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.

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

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

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

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