Gujarat High Court
Paresh Ghanshyambhai Thakkar vs Kundanlal Gaurishankar Vyas on 26 September, 2023
Bench: S.V. Pinto
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.
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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
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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
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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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"(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
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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
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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
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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
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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
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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
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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
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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
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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
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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,
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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
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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
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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
