Gujarat High Court
Lh Of Decd Gulamrasul Rahemanbhai vs Naranbhai Ukabhai Patel on 1 September, 2025
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C/SA/226/2025 JUDGMENT DATED: 01/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 226 of 2025
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2025
In R/SECOND APPEAL NO. 226 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER Sd/-
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Approved for Reporting Yes No
✔
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LH OF DECD GULAMRASUL RAHEMANBHAI & ORS.
Versus
NARANBHAI UKABHAI PATEL & ANR.
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Appearance:
MR MA KHARADI(1032) for the Appellant(s) No. 1,1.1,1.2,1.3,2,2.1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 01/09/2025
ORAL JUDGMENT
1. The present second appeal has been filed under Section 100 of
the Code of Civil Procedure, 1908 (for short "the Code")
challenging the judgement and decree passed by the 12 th
Additional District Judge, Vadodara, in Regular Civil Appeal
No.206 of 2022, dated 25.11.2024, confirming the judgement
and decree passed by the 7th Additional Senior Civil Judge
Vadodara in Special Civil Suit No.532 of 2011.
2. For the sake of brevity and convenience the parties are referred
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to as per their original status as that in the suit.
3. The brief facts arising in the present Second Appeal are that
the defendants had entered into an agreement to sell with the
plaintiffs dated 26.05.2004, whereby the total sale
consideration was Rs.10,25,000/- and on the date of execution
of agreement to sell an amount of Rs.7,65,000/- was paid as
earnest money by the plaintiffs and thereafter, the plaintiff paid
amount of Rs.25,000/- by cheque no.318421 of Syndicate
Bank dated 09.06.2008 and further amount of Rs.25,000/- by
cheque no.318423 of Syndicate Bank dated 26.06.2008 and as
the defendants did not accept the remaining amount of sale
consideration, the plaintiff filed suit for specific performance.
The defendant filed their appearance and filed written
statement vide exhibit 27. The Trial Court framed issues vide
Exhibit 28 as under:-
"1. Whether the plaintiff proves that the
defendant agreed to sell the suit property to him for a
consideration of Rs. 10,25,000/- and after accepting
Rs.7,65,000/- as an earnest money has executed an
agreement of sale in favour of the plaintiff on
26/05/2004?
2 Whether the plaintiff proves that he is in
actual possession of the suit property?
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3. Whether the plaintiff proves that he was and
is ready and willing to perform his part of
agreement?
4.Whether the defendant proves that plaintiff has
no such right to file this suit?
5. Whether the plaintiff is entitled to get relief as
prayed for?
6. What order and decree?"
4. After considering the oral evidence filed by the plaintiff, vide
Exhibit 32 and documentary evidence produced by the
plaintiff vide Exhibits 33 to 46 and also the oral evidence of
the defendant, vide Exhibit 54 and after giving finding on all
the issues, the Trial Court allowed the said suit and directed
the defendant to enter his name in the revenue record, property
card and perform his part of the agreement to sell within 60
days and accept the remaining amount of sale consideration of
Rs.2,10,000/- and execute registered sale deed of the suit
property in favour of the plaintiff. Aggrieved by the said
judgement, the defendant filed Regular Civil Appeal No.206 of
2022 and after reappreciating the evidence the Regular Civil
Appeal was dismissed and the judgement and decree passed by
the Trial Court in Special Civil Suit no.532 of 2011 was
confirmed, hence, the present second appeal.
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5. Learned advocate for the defendant has mainly argued that if
the agreement to sell produced vide Exhibit-33 is taken into
consideration, the fact remains that the said agreement to sell
specifically states that an amount of Rs.7,65,000/- was paid at
the time of execution of agreement to sell i.e. dated 26.05.2004
and the remaining amount of Rs.2,60,000/- was to be paid by
the plaintiff within a period of six months. It has also been
specifically stated in the said agreement to sell that if the
plaintiff fails to pay the entire amount of Rs.2,60,000/- within
a period of six months, the agreement to sale will be
considered cancelled and the amount of sale consideration that
has been received by the plaintiff will be forfeited and
therefore, after a period of six months, the said agreement to
sell has by efflux of time being cancelled and a specific
performance of cancelled agreement could never be executed
and in view of the said fact, the Trial Court could not have
allowed the said suit and the First Appellate Court could not
have confirmed the judgement and decree passed by the Trial
Court.
6. Learned advocate for the defendant has also argued that, it is
an admitted position that the plaintiff is a tenant in the suit
premises and therefore, the amount that has been received on
09.06.2008 and 26.06.2008 was only against the rent that was
to be paid by the plaintiff and also for the repairs that were
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carried out in the suit property and therefore, just by receiving
the said amount, it cannot be said that the time of execution of
agreement to sell was extended on receiving the said amount
and therefore, the Trial Court could not have allowed the said
suit.
7. Moreover, when the agreement to sell specifically states that
the amount had to be paid within a period of 6 months from
26.05.2004 and that if the said amount is not paid within a
period of 6 months, from 26.05.2004, the agreement would be
considered cancelled and as, no further agreement has been
executed, after the said period of 6 months, therefore, the
plaintiff could not have sought for the specific performance of
the said agreement, even if, after a period of 6 months the
defendant has accepted the amount of Rs.25,000/- and
Rs.25,000/-, and therefore, it has been argued that there are
substantial questions of law involved in the present second
appeal which are as under:
"(A) Whether the Courts below were right in
granting a decree of specific performance
where the transaction itself is based upon an
unregistered document in the nature of an
agreement to sell?
(B) Whether the appellate court was right in
upholding the decree passed by the learned
trial Court where suit itself was instituted after
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the period of seven years and the same was
taken as a defence also by the defendants and
without considering the provisions of section 3
of the limitation?
(c) Whether the Courts below were right in a
decree of granting specific performance
relying upon an agreement to sell where time
was an essence of the contract and the
execution of the same was sought after a
period of more than seven years after the
execution of the agreement to sell?
(D) Whether the lower appellate Court was
right in concluding that the agreement to sell
which on non-compliance on the part of the
purchaser had become invalid can be revived
only on cheques given by the purchasers
without any writing considering the evidence,
which leads to or two without the fact that such
cheques were given to the seller towards the
rent, the suit maintenance and taxes of
premises?"
8. Therefore, it has been argued that the present Second Appeal is
required to be admitted on the said substantial questions of
law.
9. Having heard learned advocate for the defendant and having
considered the judgement and decree of the Trial Court and
confirmed by the First Appellate Court, the following are the
admitted facts:
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1. The plaintiff is a tenant in the property.
2. Even before the agreement to sale, the plaintiff was in
possession of the property as a tenant of the suit property.
3. An agreement to sale is executed between the plaintiff and
the defendant on 26.05.2004 for sale consideration of
Rs.10,25,000/-.
4. On the date of agreement to sell, an amount of Rs.7,65,000/-
is paid by the plaintiff to defendant.
5. The terms of agreement to sale specifically states that
remaining amount of Rs.2,60,000/- is to be paid within a
period of 6 months from the execution of agreement to sale.
6. It has also been stated in the agreement to sale that
remaining amount was to be paid by the plaintiff after the
name of the defendants are mutated in the revenue record, the
said agreement also states that, at the time when the agreement
to sale was executed, the property was in the name of father of
the defendant.
7. The defendant has also admitted that the defendant has
received an amount of Rs.25,000/- on 09.06.2008 and
Rs.25,000/- on 26.06.2008.
8. The agreement also specifically states that, if there is any
dispute by the third party, or by any other legal heir claiming
right in the property, the period of agreement to sell would be
extended and that the time would not be essence of the
contract.
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10. In view of the said fact, the fact remains that after a period of 6
months i.e. after 26.11.2004, the defendant himself has
received an amount of Rs.25,000/- on 09.06.2008 and
Rs.25,000/- on 26.06.2008, though the defendant has raised a
claim that the said amount was paid by the plaintiffs towards
the rent and repairs in the suit property, but there is no iota of
evidence produced by the defendant, that, defendant has in his
books shown this amount towards the rent.
11. With respect to the contentions of the defendant that time is
the essence of the contract, though the agreement to sell states
that remaining amount of sale consideration of Rs.2,60,000/- is
to be paid within a period of 6 months but in the present case,
the Court will have to look at the conduct of the parties and
not the terms used in the agreement to sell, if by conduct the
parties have given a go by to the terms of the agreement,
thereafter they cannot come forward with the case that the
agreement was in existence only for 6 months and mere
incorporation in the agreement to sale clause, will not suffice.
In the present case, even from the oral and documentary
evidence, it can be clearly proved by conduct of the parties
that the time was not the essence of the contract.
12. Moreover, in a case of sale of immovable property, there is no
presumption as to time being the essence of the contract and
even if it is not an essence of the contract, the Court can infer
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that it has to be performed within a reasonable time, if the
conditions are from the express terms of the contract, from the
nature of property and from surrounding circumstances, for
essence, the object of making the contract.
13. Moreover, in the case of immovable property, the party to such
contract, can by giving evidence prove that in the facts of the
case time was not the essence of the contract and in the present
case the defendant has admitted of receiving an amount of
Rs.25,000/- in the year 2008 and therefore, by the said act it
cannot be said that the time was the essence of the contract.
14. In the present case, the defendant admitted that the plaintiff is
old tenant in the suit premises and defendant has also admitted
of receiving an amount of Rs.25,000/- on 09.06.2008 and
Rs.25,000/- on 26.06.2008. All throughout, the plaintiff has
proved that he was ready and willing to perform his part of
contract.
15. Generally, time is not essence in agreement for sale of
immovable property. In deciding whether to grant the remedy
of specific performance, specially in suits relating to sale of
immovable properties, the Courts must be cognizant of the
conduct of the parties, the escalation of the price of the suit
property and whether one party will unfairly benefit from the
decree. The remedy provided must not cause injustice to a
party, specifically when they are not at fault. The plaintiff had
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always been ready and willing to perform his part of the
contract and was also ready and willing to pay remaining
amount of sale consideration and execute the sale deed but it is
the defendant, who did not comply or act in furtherance to the
agreement and therefore, the Trial Court has passed an order
for specific performance and the same has rightly been
confirmed by the First Appellate Court.
16. In view of the facts herein above, the Trial Court and the
Appellate Court have rightly held that there is a valid contract
between the parties with respect to the suit property and that
the plaintiff has been ready and willing to perform his part of
contract all throughout and the plaintiff has in fact performed
his part of contract by showing his readiness and willingness
of paying the sale consideration and it will be equitable to
grant relief for specific performance of the contract to the
plaintiff and defendant will not suffer any kind of hardship.
Moreover, the judgement passed by the First Appellate Court
is after reappreciating the entire evidence on factual aspect and
there is no need to interfere with the said order.
17. It is required to be noted that in Second Appeal, the scope is
very limited and the Court cannot re-appreciate the evidence.
In the case of Navaneethammal v. Arjuna Chetty reported in
1996 (6) SCC 177, the Hon'ble Apex Court has observed as
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under:-
"11. This Court, time without number, pointed out that
interference with the concurrent findings of the courts below
by the High Court under Section 100 CPC must be avoided
unless warranted by compelling reasons. In any case, the
High Court is not expected to reappreciate the evidence just
to replace the findings of the lower courts."
18.In the case of Jaichand (Dead) through Lrs and Other v.
Sahnulal and Another reported in 2024 SCC OnLine SC 3864,
the Hon'ble Apex Court has observed as under:-
"28. It is thus clear that under Section 100
CPC, the High Court cannot interfere with
the findings of fact arrived at by the first
Appellate Court which is the final Court of
facts except in such cases where such
findings were erroneous being contrary to
the mandatory provisions of law, or its
settled position on the basis of the
pronouncement made by the Apex Court or
based upon inadmissible evidence or without
evidence."
19. Under the circumstances, this Second Appeal is devoid of any
substantial question of law. Both the learned Trial Court and first
appellate Court have rightly decided the issue between the parties in the
right perspective and as stated above no substantial question of law arises
in the present appeal. The defendants have failed to prove their case
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before the learned trial Court as well as before the first appellate Court.
This Court does not find any substance in the present Second Appeal as
the same is devoid of any merit both on facts and law and the same is
dismissed.
Sd/-
(SANJEEV J.THAKER,J)
URIL RANA
