Sri Ziaulla vs Sri.B.S. Shivashankar
2022 Latest Caselaw 1958 Kant

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 08TH DAY OF FEBRUARY 2022

                            BEFORE

     THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

          REGULAR FIRST APPEAL No.1978 OF 2019

BETWEEN:

Sri. Ziaulla
S/o. Sri. Gulam Nabi
Aged about 71 years,
R/o. Gulanpete village & Post,
Aldur Hobli, Chikkamagaluru Taluk,
Chikkamagaluru District. 577101.
                                                 ... Appellant
(By Sri. Prasanna V.R., Advocate)

AND:

1.     Sri.B.S. Shivashankar
       S/o. Sri. B.K. Shrungeshwaraiah
       Aged about 59 years.

2.     Smt. Prema
       W/o. Sri. B.S. Shivashankar
       Aged about 54 years.

Both are R/at Sriruvase Village & Post
Chikkamagaluru Taluk
Chikkamagaluru District. 577 101.
                                        .. Respondents
(By Sri. Suresh Babu B.N. Adv. For R-1 & R-2)

     This R.F.A. is filed under Section 96 of Code of Civil
Procedure, praying to call for the records in O.S.No.5/2015 from
the Court of the Principal Senior Civil Judge and CJM,
Chikkamagaluru; set aside the impugned judgment and decree
dated 31-01-2018 passed by the Court of the Principal Senior
                                                         RFA.No.1978/2019
                                    2


Civil Judge & CJM, Chikkamagaluru in O.S.No.5/2015 and
consequently, decree the suit filed by the plaintiff in
O.S.No.5/2015 and grant such other relief or reliefs as this Court
deems fit under the circumstances of the case, including costs, in
the interest of justice and equity.

      This R.F.A. having been heard through Physical
Hearing/Video Conferencing Hearing and reserved on 23.11.2021
at Principal Bench, Bengaluru and coming on for pronouncement
of Judgment at Dharwad Bench this day, the Court delivered the
following:

                                JUDGMENT

It is a plaintiff's appeal. The present appellant as a

plaintiff had instituted a suit in O.S.No.5/2015, in the Court of

learned Prl.Senior Civil Judge & CJM, Chikkamagaluru,

(hereinafter for brevity referred to as `trial Court'), against the

present respondents arraying them as defendants for the relief of

specific performance of the contract.

2. The summary of the case of the plaintiff in the trial

Court was that the defendants had entered into a written

agreement with him agreeing to sell the suit schedule property,

which is a land measuring 3 acres comprising Coffee plantation

in Survey No.52 of Machagondanahalli Village, Aldur Hobli,

Chikkamagaluru Taluk, for a total consideration of a sum of

`12,60,000/-. In that connection and under the same

agreement, the plaintiff had paid a sum of `3,00,000/- to the RFA.No.1978/2019

defendants as a part of sale consideration. The written

agreement was dated 01.07.2011. The defendants had agreed

to provide all the necessary documents, including 11 (E) sketch

for the registration of the Sale Deed. The defendants had to

clear the loan amount of VSSN Bank to enable the registration

of the Sale Deed in favour of the plaintiff. The time fixed for the

performance of the contract and for execution of the Sale Deed

was three months from the date of the agreement. However,

the defendants could not furnish the documents though agreed

by them. Hence, on two occasions, the time for performance of

the contract came to be extended, initially on 29.09.2011,

whereunder, the time was extended till 29.12.2011.

Subsequently on 17.01.2012, the time was extended up to

31.12.2012. Even then the defendants failed to perform their

part of the promise in furnishing the necessary documents and

that they did not execute the Sale Deed though agreed by them.

The plaintiff was always ready and willing to perform his part of

the contract. Hence, the plaintiff got issued two legal notices to

the defendants calling upon them to execute the Sale Deed.

Even after service of the legal notices, the defendants did not

execute the Sale Deed by receiving the balance sale RFA.No.1978/2019

consideration. This made the plaintiff to institute a suit in

O.S.No.5/2015 against the defendants in the trial Court for the

relief of specific performance of the contract.

3. In response to the summons served upon them, the

defendants appeared through their counsel. The defendant No.1

filed his written statement in the matter. The defendant No.2 by

filing a memo, adopted the written statement filed by defendant

No.1.

In his written statement, the defendant No.1 denied all the

plaint averments and contended that the suit of the plaintiff is

barred by law of limitation. The defendant No.1 further

contended that in the year 2011, the defendants were badly in

need of money and hence they approached the plaintiff

requesting him to lend a loan of `50,000/-. The plaintiff though

agreed to lend a loan of `50,000/- to the defendants, however,

obtained the signatures of the defendants on some blank papers.

The defendants had no intention to execute an agreement for

sale or they had any intention to sell the suit schedule property.

However, the plaintiff while giving them a loan of `50,000/-, had

obtained their signature on blank stamp papers and got created

the alleged agreement for sale dated 01.07.2011. The RFA.No.1978/2019

defendants also denied that they had received an earnest money

of a sum of `3,00,000- from the plaintiff by agreeing to sell the

suit schedule property to the plaintiff for a total consideration of

a sum of `12,60,000/-.

The defendant No.1 further stated that though he

approached the plaintiff many a times to clear the loan amount

and get back the signed blank papers, however, the plaintiff

stating that the papers were found missing, did not return the

blank signed papers to the defendants. The defendant No.1 also

stated that even now the defendants are ready to clear the loan

amount of `50,000/- with interest. With this, the defendants

prayed for dismissal of the suit.

4. Based on the pleadings of the parties, the trial Court

framed the following issues :

1. Whether the plaintiff proves that the defendants had executed an agreement of sale in respect of suit property for Rs.12,60,000/- on 1.7.2011?

2. Whether the plaintiff proves that the defendants had received earnest money of Rs.3,00,000/- as on the date of execution of agreement of sale?

3. Whether the plaintiff proves that the defendants made shara in the agreement on 29.9.2011 and 17.1.2012 RFA.No.1978/2019

for the continuation of time limit fixed in the agreement of sale?

4. Whether the plaintiff proves that he is always been ready and willing to perform his part of the contract?

5. Whether the defendants proves that in the year 2011, they borrowed loan of Rs.50,000/- from the plaintiff and at that time, the plaintiff obtained their signature on blank papers and filed their false suit?

6. Whether the suit is barred by limitation?

7. Whether the plaintiff is entitled for the relief claimed in the above suit?

8. What order or decree?

5. In order to prove his case, the plaintiff got himself

examined as PW-1 and one Sri Mohammed Haneef as PW-2 and

marked documents from Exs.P-1 to P-6. The defendant No.1

got himself examined as DW-1 and got marked documents from

Exs.D-1 to D-4.

After recording the evidence and hearing both side, the

trial Court by its judgment dated 31.01.2018, while answering

issues Nos.1 to 4, 6 and 7 in the negative and issue No.5 in the

affirmative, dismissed the suit of the plaintiff. Challenging the

same, the plaintiff has preferred the present appeal.

RFA.No.1978/2019

6. In response to the notice served upon them, the

respondents are appearing through their counsel.

7. Records from the trial Court are called for and the

same are placed before the Court.

8. For the sake of convenience, the parties would be

referred to as per their rank before the trial Court.

9. Seeking condonation of delay of 507 days that was

caused in filing this appeal, the appellant had filed IA.No.1/2019

under Section 5 of the Limitation Act. This Court by its order

dated 06.01.2021, allowed the said IA.No.1/2019 and condoned

the delay that was caused in filing this appeal, however, subject

to payment of cost of `10,000/- payable by the appellant to the

respondents. Challenging the said order passed on

IA.No.1/2019, the respondents preferred a Special Leave Petition

No.5427/2021 before the Hon'ble Supreme Court of India. The

Hon'ble Apex Court by its order dated 16.04.2021, dismissed the

Special Leave Petition, however, with a direction to this Court to

dispose of the present appeal as expeditiously as possible,

preferably within six months from the date of the order.

10. During the pendency of this appeal, on the date

22.06.2021, the appellant had filed IA.No.1/2021 under Order RFA.No.1978/2019

XLI Rule 27 read with Section 151 of Code of Civil Procedure,

1973 (hereinafter for brevity referred to as `CPC'), seeking

permission to lead additional evidence by production of additional

documents. The respondents have filed their statement of

objections to the said IA.No.1/2021.

11. Heard the arguments of learned counsel from both side

and perused the materials placed before this Court, including the

impugned judgment and the trial Court record.

12. The points that arise for my consideration are,

1. Whether IA.No.1/2021 filed by the appellant under Order XLI Rule 27 read with Section 151 of CPC deserves to be allowed?

2. Whether the plaintiff has proved that the defendants had executed an agreement of sale in respect of the suit schedule property in his favour on the date 01.07.2011, agreeing to sell the suit schedule property to him for a total consideration for a sum of `12,60,000/-?

3. Whether the plaintiff has proved that under the agreement dated 01.07.2011, the defendants had received an earnest money of a sum of `3,00,000/- from him?

RFA.No.1978/2019

4. Whether the plaintiff has proved that he is always ready and willing to perform his part of the promise under the contract dated 01.07.2011?

5. Whether the plaintiff is entitled for the relief claimed in the suit?

6. Whether the judgment and decree under the appeal warrants any interference at the hands of this Court?

13. IA.No.1/2021 is filed by the appellant under Order XLI

Rule 27 read with Section 151 of CPC, seeking permission to lead

evidence by production of additional documents annexed to the

application. The applicant has sought for production of

statement of his Bank accounts with two Banks, a copy of the

Sale Deed dated 01.01.2018 and a copy of the agreement dated

03.03.2017 entered into between M.J.Manjunath and Mohammed

Mujatahid Ali.

In the affidavit accompanying the application, the

deponent has stated that, since he did not have any legal

knowledge, as such, he was not aware that to prove the

readiness and willingness, he has to produce the documents.

RFA.No.1978/2019

Further, his counsel appearing for him in the trial Court also did

not enlighten him in that regard. As such, he could not produce

the documents which he intends to produce now at the time of

the trial. He has also stated that those documents are very

material to pass an effective judgment.

14. The respondents have filed their statement of

objections to IA.No.1/2021, wherein they have denied the

reasons shown by the applicant for seeking permission to

produce the additional documents. The respondents have

specifically contended that the plaintiff in the trial Court

throughout had an opportunity to produce the documents, which he

failed to do. They also contended that none of these documents

can be called as the documents which could not be produced by

the applicant despite exercise of his due diligence or that they

were not to his knowledge. As such also, the application does

not deserve to be allowed. The respondents further contended

that none of the documents sought to be produced are of any

relevance to the case. They stated that the alleged Bank

statements are for a period shorter than the date of institution of

the suit. Further the bank balance as shown in those statements RFA.No.1978/2019

are also lesser than the amount which was alleged to be payable

by the plaintiff to the defendants as a balance sale consideration.

15. Learned counsel for the appellant though did not made

any mention about IA.No.1/2021 in his argument in chief,

however, in his reply argument, submitted that the documents

sought to be produced by the appellant being important

documents, the permission as sought for under IA.No.1/2021 be

granted.

16. Learned counsel for the respondents in his argument

vehemently opposed allowing of IA.No.1/2021 and contended

that the documents now sought to be produced through the said

IA. were to the knowledge and possession of the appellant at the

time of filing the Original Suit itself. He has not shown any

reasons for the delayed filing of the same. He also submitted

that the reason given by the appellant is not convincing. In his

support, he relied upon two judgments of Hon'ble Apex. The

first judgment is in Union of India -vs- Ibrahim Uddin and

another, reported in (2012) 8 SCC 148. The second judgment

relied upon by him is in the case of State of Karnataka and RFA.No.1978/2019

another -vs- K.C.Subramanya and others, reported in (2014) 13

SCC 468.

17. Order XLI Rule 27 of CPC reads as below :

"27. Production of additional evidence in Appellate Court.- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if -

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause,

the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.

RFA.No.1978/2019

18. In the instant case, the applicant has attempted to

show that due to his lack of legal knowledge, he could not

produce the documents under application. Thus, it is not his

case that notwithstanding the exercise of due diligence, the

documents now sought to be produced were not within his

knowledge or could not be produced by him at the time when the

decree appealed against was passed. He has no where stated

that despite his due diligence, he could not produce any of those

documents, which he is now intending to produce. On the other

hand, he has only stated that due to lack of the legal knowledge

to him, he could not produce those documents to prove his

readiness and willingness to perform his part of the promise

under the contract. He has also stated that his advocate in the

trial Court did not enlighten him in this regard.

19. In Ibrahim Uddin's case (supra), the Hon'ble Apex

Court with respect to Order XLI Rule 27 of CPC in Paragraph

No.39 and 40 was pleased to observe as below :

" 39. It is not the business of the appellate court to supplement the evidence adduced by one party or the other in the lower court. Hence, in the absence of satisfactory reasons for the non-production of the evidence in the trial court, additional evidence should not be admitted in appeal as a party RFA.No.1978/2019

guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this Rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal. (Vide State of U.P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912 and S.Rajagopa v. C.M.Armugam, AIR 1969 SC 101).

40. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a "substantial cause" within the meaning of this Rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal."

20. In K.C.Subramanya's case (supra), the Hon'ble Apex

Court in Paragraph Nos.4 and 5 of its judgment was pleased to

observe as below :

" 4. On perusal of this provision (Order LXI Rule 27 of CPC), it is unambiguously clear that the party can seek liberty to produce additional evidence at the appellate stage, but the same can be permitted only if the evidence sought to be produced could not be produced at the stage of trial in spite of exercise of due diligence and that the evidence could not be produced as it was not within his knowledge and hence was fit to be produced by the appellant before the appellate forum.

5. It is thus clear that there are conditions precedent before allowing a party to adduce additional evidence at the stage of appeal, which specifically incorporates conditions to the effect that the party in spite of due diligence could not RFA.No.1978/2019

produce the evidence and the same cannot be allowed to be done at his leisure or sweet will."

Thus, it is very clear that wrong advise or no advise of a

pleader or inability to understand the legal issues cannot be the

grounds for allowing the production of documents as additional

evidence. As observed above, despite the said reason, the

applicant has no where stated or shown that despite his due

diligence, he could not produce those documents which he

intends to produce now in the trial Court. The filing of

IA.No.1/2021 in this appeal, that too, after a couple of years of

filing this appeal and when the matter was slated for its final

hearing is nothing, but, an after thought by the applicant and

only to fill up the lacuna in his case. Thus, I am of the view that

IA.No.1/2021 does not deserve to be allowed.

21. The plaintiff got himself examined as PW-1, who in

his examination-in-chief filed in the form of affidavit evidence

has reiterated the contentions taken up by him in his plaint,

stating that as a purchaser of the suit schedule property, he

entered into an agreement with the defendants on 01.07.2011.

He produced an Agreement of Sale and got it marked at Ex.P-1.

He also stated that under the said agreement, he paid an RFA.No.1978/2019

advance amount of `3,00,000/- in cash as a partial

consideration. The time for performance of the contract was

fixed as three months from the date of agreement.

The same witness has also stated that on 29.09.2011, the

time for performance of agreement was continued and an

endorsement to that effect was made in the agreement

extending the time upto 29.12.2011. He has also stated that

once again on 17.01.2012 the time fixed for the performance of

promise under the agreement was once again continued after

31.12.2012. It was because the survey proceedings was not

completed and records were not handed over to him by the

defendant. He further stated that in spite of the above, he was

ready to perform his part of the contract and since the

defendants did not execute the sale deed in his favour, he

issued a legal notice to them and got produced copy of the legal

notice dated 28.11.2014 and got it marked as Ex.P2.

However, in his cross-examination, he admitted that the notice

dated 12.11.2014 which was marked as Ex.D1 was also issued

by him to the defendants prior to he issuing notice at Ex.P2. The

witness also produced a reply dated 09.12.2014, said to have RFA.No.1978/2019

been sent by him to the defendant, to his second notice dated

28.11.2014 and got it marked at Ex.D4.

22. The defendant No.1 who got himself examined as

DW-1 produced two more copies of the reply to the legal notice,

stating that they were the replies given by him to the two

notices sent by the plaintiff and got them marked as Ex.D3 and

Ex.D4 respectively. The said evidence is not disputed. Thus,

the fact remains that seeking specific performance of the

contract, the plaintiff had issued two notices and both the

notices were sent within a span of sixteen days as elicited in

the reply from the defendant.

Both the replies, which are at Ex.P3 and its copy at Ex.D4

and at Ex.D3, shows that at the earliest point of time, the

defendants have specifically denied the alleged execution of an

agreement by them in favour of the plaintiff on 01.07.2011

agreeing to sell the suit schedule property for a total

consideration of a sum of `12,60,000/- and also have

specifically denied the allegation that under the said agreement,

they received a partial consideration of `3,00,000/- from the

plaintiff. In both these replies, the defendants also stated that RFA.No.1978/2019

the amount received by them from the plaintiff was only a sum

of `50,000/- as a loan, which they were even then ready and

prepared to pay back to the plaintiff. Therefore, the evidence of

PW-1 that he entered into an agreement with the defendants on

01.07.2011 as per Ex.P1, is being seriously disputed and denied

by the defendants from the date of issuance of legal notice to

them.

PW-1 was cross-examined in detail from the defendants'

side, wherein more details regarding the alleged execution of

agreement as per Ex.P1 were elicited from the witness. Since

the plaintiff also got examined one Sri Mohammed Haneef as

PW-2 stating that he was an attestor to the agreement for sale,

the details about the alleged execution of the agreement at

Ex.P1 has to be analysed after taking into consideration the

evidence of PW-2.

23. PW-2 in his examination-in-chief filed in the form of

affidavit evidence has stated that he was an witness to the

agreement between the plaintiff and the defendants for the sale

of suit schedule property by the defendants in favour of the

plaintiff. On the date of agreement, which was on 01.07.2011, RFA.No.1978/2019

the defendants received a sum of `3,00,000/- from the plaintiff

by cash and remaining sum of `9,60,000/- was agreed to be

paid at the time of execution of the sale deed. The witness has

also stated that on 29.09.2011, the defendants executed a

shara by continuing the agreement upto 29.12.2011. While

executing shara, he was also present. The witness has also

stated that thereafter on 17.01.2012, the defendants executed

one more shara in favour of the plaintiff by extending the time

under the agreement upto 31.12.2012. He also stated that the

receipt of a sum of `3,00,000/- by the defendants was in cash

and in the presence of Notary at Chikkamagalur. The witness

identified the agreement at Ex.P1 and his signature at Ex.P1(a).

He identified the signature of witnesses to the endorsement at

Ex.P1(b) and Ex.P1(c). He also identified the signature of the

defendants 1 and 2 at Ex.P1(d) and Ex.P1(e) and the signature

of the plaintiff at Ex.P1(f) respectively.

This witness also was subjected to a detailed cross-

examination from the defendants' side.

24. The defendant No.1 as DW-1 has reiterated the

contentions of his written statement, in his examination-in-chief

which was filed in the form of affidavit evidence. He got RFA.No.1978/2019

produced copies of the legal notice at Ex.D1, a photocopy of

Ex.P1 at Ex.D2 and his two replies to the notice at Ex.D3 and

Ex.D4 respectively.

He was also subjected to a detailed cross-examination,

wherein he adhered to his original version.

25. It is in the light of the above evidence of the parties,

it was the argument of the learned counsel for the

appellant/plaintiff that the undisputed signature of the parties

on Ex.P1 establishes the execution of agreement of sale dated

01.07.2011 by the defendants in favour of the plaintiff. He

further submitted that the suggestion made to PW-1 in his

cross-examination suggesting to the witness that since the

plaintiff had no financial capacity to pay a sum of `12,60,000/,

he requested for more time, go to show that the defendants had

executed an agreement as per Ex.P1 in favour of the plaintiff.

Further, by drawing the attention of this Court to one more

statement made by PW-1 in his cross-examination, which shows

that PW-1 has not admitted a suggestion that he was not

prepared to purchase the suit property, the learned counsel for

the appellant submitted that those suggestions made to the

witness shows that the defendants have admitted execution of RFA.No.1978/2019

an agreement as per Ex.P1. Learned counsel further submits

that the defendants not filing any police complaint against the

plaintiff alleging creation of Ex.P1 also go to show that they

have admitted the agreement at Ex.P1. The learned counsel

further stated that no suggestions were made to PW-2 in his

cross-examination, suggesting that no agreement as per Ex.P1

was entered into between the parties and that no advance

amount was given to the defendant by the plaintiff. This also go

to show that an agreement as per Ex.P1 was entered into

between the parties.

26. Learned counsel for the respondents/defendants in

his brief arguments submitted that a bare look at the alleged

agreement at Ex.P1 would clearly go to show that it is a

concocted and fabricated document. Few pages of the

agreement is typewritten and few pages are computerised and

the last page of the agreement is half typewritten and half

computerised and also line spacing adjustment and font size

reduction all being made only to fit a subsequently planned and

created agreement in the blank paper secured by the plaintiff by

getting their signatures affixed to it. He also submitted that the

very statement of the plaintiff and his witnesses that, the RFA.No.1978/2019

agreement was executed on 01.07.2011, but it was notarized

on the subsequent date, which according to them, was

04.07.2011 also adds more doubt to the alleged execution of

the agreement. Learned counsel further submitted that the

evidence of PW-2 is unbelievable and self-contradictory. As

such, his evidence does not deserve to be believed.

27. According to the plaintiff, the agreement with the

defendants was entered into on 01.07.2011 and that the stamp

paper for the preparation of the agreement was purchased by

him and the defendants from one Sri Srinivas of Chikkamagalur

who was available near Gurunath movie theatre and who has

prepared Ex.P1. PW-2 and two more persons by name Sri Syed

and Sri Manjegowda were witnesses to the said agreement. The

witness also stated in his cross-examination that the signatures

to the said agreement were put before the Notary on

01.07.2011. In the same breath, he admitted a suggestion as

true that the said document was notarised on the date

04.07.2011.

On the other hand, PW-2 who also claims to be present at

the time of execution of the agreement at Ex.P1 and the alleged RFA.No.1978/2019

payment of an advance amount of `3,00,000/- by the plaintiff

to the defendants, at one place of his cross-examination has

stated that the negotiations took place in the house of the

defendants and the agreement was executed in the noon at

12'o clock on the date 01.07.2011. One Srinivas, the stamp

vendor had prepared the agreement. He also stated that on

that day at 8'o clock, he went to the house of the defendants in

a motor car along with others. When the negotiation concluded,

it was 12'o clock in the afternoon. He admitted a suggestion as

true that the distance between his house and the village called

'Siruvase', wich is the place of residence of the defendants, was

about 70 kilometers. The witness has further stated that on the

said day, they did not go to Chikkamagaluru. If his evidence is

believed, then it go to show that the negotiation for the

purchase of the land between the parties took place and

concluded at 12'o clock in the afternoon on the date

01.07.2011. The said place is a village called ''Siruvase'' which

is admittedly at a long distance from the District Headquarters,

Chikkamagaluru. According to PW-1, the stamp paper was

purchased by him and the defendants. A perusal of Ex.P1 which

is on a stamp paper on the stamp value of `200/- go to show RFA.No.1978/2019

that the said stamp paper was purchased by plaintiff alone at

Chikkamagaluru on 01.07.2011 at 11.54 a.m. This falsifies the

statement of the plaintiff that both himself and defendants

together went to purchase the stamp paper. If the negotiation

is completed at 12'o clock in the afternoon on that day, then

how come the plaintiff and the defendants both could travel a

long distance between Siruvase village upto Chikkamagaluru

and purchase the stamp paper at a prior time of 11.54 a.m.

which is six minutes earlier to the alleged conclusion of

negotiation.

Secondly, PW-1 has stated that the signatures to the

agreement was made before the Notary on 01.07.2011, wherein

PW-2 has stated that, on that day (01.07.2011), they did not go

to Chikkagamaluru at all. Undisputedly, the Notary was at

Chikkmagaluru and his rubber stamp on the affidavit also shows

that his office is at Chikkamagaluru only. Therefore, if the

parties did not come to Chikkamagaluru on 01.07.2011, then

how come they could sign before the Notary on 01.07.2011 as

stated by PW-1 remains a miracle.

RFA.No.1978/2019

Thirdly, PW-2 who has stated at one place that the

agreement was made after negotiation in the house of the

defendants and that they did not go to Chikkamagalur on

01.07.2011 and at the conclusion of his cross-examination, he

has stated that he has put his signature to the agreement

before the Notary on the date (01.07.2011). He also stated that

the Notary has obtained the signatures in his register also. He

has further stated that even to the endorsement in Ex.P1 also,

he has signed before the Notary, which is not at all the case of

the plaintiff. Therefore, the evidence of PW-2 is totally

unreliable and not trustworthy.

Fourthly, even according to the plaintiff, the signatures to

the agreement at Ex.P1 were put before the Notary on the date

01.07.2011 and the document was notarised on 04.07.2011.

Nowhere, he has stated as to why the document was not

notarised on the very same day i.e., 01.07.2011, when it is said

to have been signed before the Notary himself. No reasons are

forthcoming on the said aspect. As such also, a doubt arises

regarding the execution of the document at Ex.P1 by the

defendants as admitting it as an agreement for sale.

RFA.No.1978/2019

Fifthly, if the document is executed before the Notary and

is notarised, then invariably, the Notary passes an entry in the

register maintained by him and obtains the signature of the

parties. The said Notary has not been summoned as a witness

by the plaintiff for the reasons best known to him. In the

circumstances of the case, when the defendants specifically and

categorically deny of they executing the document at Ex.P1 as

an agreement for sale and signing it before the Notary and also

when the evidence of alleged eye witness, who is PW-2, also

proved to be unsafe to believe, the burden would be heavy upon

the plaintiff to prove the execution of Ex.P1 as an agreement for

sale by the defendants. Under such circumstances, it was

required of the plaintiff to summon the Notary and his register

to establish that the signatures to the agreement was made in

the presence of the Notary and the said document was

notarised. Merely, because a document bears the rubber stamp

mark showing to be of a Notary and when the alleged executant

of that document specifically deny that they have specifically

executed the said document and got it notarised, then it is

unsafe to rely upon the said document as duly executed and

notarised document, unless it is proved by other cogent and RFA.No.1978/2019

acceptable evidence. It is in that regard, the plaintiff was

required to summon the Notary and to examine him, which he

did not do, thus has kept the doubt and enabled it to grow more.

Sixthly, according to the plaintiff/PW-1, on the date of

execution of agreement, which was on 01.07.2011, a sum of

`3,00,000/- in cash was paid to the defendants to him,

whereas, PW-2 in his evidence has stated that the said amount

of `3,00,000/- was paid in his presence before the Notary.

Thus, even the alleged payment of `3,00,000/- is also doubtful.

That alleged advance amount of `3,00,000/- being a huge sum,

the mere say that it was paid in the form of cash is also difficult

to believe.

Seventhly, according to PW-2, he has put his signature on

the two endorsements made in the last page of the agreement

at Ex.P1 which are dated 29.09.2011 and 17.01.2012, before

the Notary only. It is not the case of the plaintiff that those

endorsements about alleged extension of time for performance

of the agreement was made before the Notary. This

discrepancy further thickens the cloud of doubt about the

execution of the agreement at Ex.P1.

RFA.No.1978/2019

Lastly, a perusal of Ex.P1, which is the alleged agreement

go to show that it is a document with four sheets and paginated

from the second page to seventh page as Page Nos.1 to 6. As

such, the first and last page of this document have remained

unpaginated. The first two sheets which comes to four pages

are in manually typewritten Kannada language letters. Both

sides of the third sheet which is marked at Page No.4 and 5 and

half of the first page of the fourth sheet, which is marked as

Page No.6, are computer prints in kannada language. The

second half page of the first page of fourth sheet (paginated as

Page No.6) and the last page of the fourth sheet are all

manually typewritten version in kannada language. This

discrepancy was suggested to PW-2 in his cross-examination

who has admitted the same. Therefore, this mixture of manual

typewritten, computer printout on the same day i.e., on

01.07.2011 creates a serious doubt about the agreement.

Particularly, Page No.4, which is the marked Page No.3, bears

the signature of the alleged executants i.e., defendants in the

upper portion of the page leaving the remaining nearly two-third

of the entire page blank. However, that is not the end of the

agreement. The same agreement is shown to have continued in RFA.No.1978/2019

the third sheet (marked as Page-4) in computer print out and

ends in the fourth sheet first page (marked as Page-6). The

continuation of the agreement could have been continued in the

second sheet last page (marked as Page-3) only where

two-third of the page is left blank. Further in the page marked

as '6' (fourth sheet first page) also, no reasons are forthcoming

as to why the schedule portion of the property and the

description of the executants of the agreement are typed with a

manual typewriter instead of computer printing, which portion

also the very same page bears. This greater discrepancy in

Ex.P1 and other points of observation made above makes Ex.P1

totally unsafe to believe. On the other hand, it makes more

probable of the contention of the defendants that they availed a

loan of only a sum of `50,000/- from the plaintiff and at that

time, the plaintiff had obtained their signatures on several of

the blank papers including a stamp paper which he has misused

by creating an alleged agreement of sale as per Ex.P1.

Therefore, merely because PW-1 was suggested by the

defendants that he was not ready to purchase the property or

that suggestions denying non-execution of the agreement was

not made to PW-2 from the defendants' side would not make RFA.No.1978/2019

Ex.P1 as believable document. Therefore, neither the oral

evidence nor the documentary evidence either independently or

together would go to prove that the defendants had entered into

an agreement to sell the suit schedule property to the plaintiff

for a sum of `12,60,000/- and had received a sum of

`3,00,000/- as advance amount and also that they had

executed an agreement in that regard as per Ex.P1. Thus, the

finding of the trial Court answering Issue No.1 in the negative

and Issue No.5 in the Affirmative cannot be found fault with.

28. In order to seek specific performance of the

contract, it is also necessary for the plaintiff to plead and prove

that he has always been ready to perform his part of the

promise under the contract from the date of the agreement till

the date of execution of the sale deed. In the instant case, the

plaintiff has contended in his pleadings that he has always been

ready and willing to perform his part of the contract, which he

has stated that he was ready to perform his part of the contract

even in his evidence as PW-1. However, except his oral

statement that he was ready to perform the contract, he has

not produced any document to show that he was actually ready

and willing to perform his part of the contract and the alleged RFA.No.1978/2019

balance amount of `9,60,000 was available with him and at his

disposal or at least that he was in a position to pool up the

required fund for performance of his part of promise under the

agreement.

29. Learned counsel for the plaintiff/appellant, in his

argument submitted that the very fact that the plaintiff issued

two notices to the defendants on 12.11.2014 and 28.11.2014

calling upon the defendants to execute the sale deed itself

would go to show that the plaintiff has been ready and willing to

perform his part of the contract. Learned counsel for the

defendants/respondents submitted that a mere oral statement

that he was ready and willing to perform his part of the contract

was not sufficient, but the plaintiff is also required to place

some cogent evidence to show that he was ready with the

balance consideration and was willing to perform his part of the

promise. In his support, he relied upon a judgment of the

Hon'ble Apex Court in C.S. Venkatesh Vs. A.S.C. Murthy

(Dead) by Legal Representatives and others reported in

2020 (3) Supreme Court Cases 280.

RFA.No.1978/2019

30. In Punny Akat Philip Raju, since dead by his LRs.

Vs. Sri. Dinesh Reddy reported in ILR 2016 Kar.2252, a

Division Bench of this Court in paragraph 32 of its judgment was

pleased to observe that, the proof of readiness necessarily

means demonstration of financial ability or capacity to pay the

balance sale consideration and take the sale deed. When a

person on oath states in the witness box that he is ready with

the requisite funds, he must produce some evidence to prove his

possession of the required funds. The explanation to Section

16(c) of the Specific Relief Act makes it clear that the proof of

requisite funds does not mean he should produce the currency

before the Court or he should deposit the money in Court. But at

the same time, mere statement on oath in the witness box that

he is possessed of the requisite funds would also do not prove

the possession of funds. The said proof has to be necessarily by

way of documentary evidence.

In paragraph 33 of the same judgment, it was further held

that, when a person claims that he is possessed of sufficient

funds, he has to produce some documentary evidence, which

proves his capacity to raise the funds or he possess the funds. It

may be a pass book issued by a Bank where he has kept the RFA.No.1978/2019

balance sale consideration ready for payment. If he has invested

his money by way of securities, he has to produce those

Certificates/securities before the Court to show that, any time

he can encash the same and pay the balance sale consideration.

If he intends to borrow from a Nationalised Bank or from his

employer or from any other financial Institution, it has to be

demonstrated by producing a request for such financial

assistance in writing, sanctioning of the said loan, which has to

be necessarily in writing.

Thus, it has been clearly held in the said judgment that,

there must be some material documents and proof to show that

the plaintiff, as an agreement holder and purchaser, has always

been ready and willing to perform his/her part of the promise

under the contract. A mere statement that he or she is ready

and willing to perform his/her promise would only show his/her

desire to acquire the property by purchasing the same, but it

does not substitute the requirement of proving his/her readiness

in the matter.

31. The Hon'ble Apex Court in the case of C.S.

Venkatesh (supra) at paragraph 16 was pleased to observe as

follows:

RFA.No.1978/2019

" 16. The words "ready and willing" imply that the plaintiff was prepared to carry out those parts of the contract to their logical end so far as they depend upon his performance. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of performance. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of contract, the court must take into consideration the conduct of the plaintiff prior, and subsequent to the filing of the suit along with other attending circumstances. The amount which he has to pay the defendant must be of necessity to be proved to be available. Right from the date of the execution of the contract till the date of decree, he must prove that he is ready and willing to perform his part of the contract. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready to perform his contract."

In the instant case, the plaintiff except stating in his legal

notice at Ex.P2 and Ex.D1, has not at all produced any other

evidence to show that he was possessing a cash of `9,60,000/-

with him which is the alleged balance sale consideration

according to him or that he was in a position to pool up or

secure the required fund either in the form of any bank loan or

financial assistance, etc., As such, in the absence of any

corroborative evidence, the mere oral statement of the plaintiff RFA.No.1978/2019

that he was ready and willing to perform his part of the contract

cannot be accepted. On the other hand, the defendants have

made a suggestion to PW-1 in his cross-examination that

financially he was not in a condition to pay the alleged balance

amount. Even though, the learned counsel for the appellant

submitted that to pool up the fund, the plaintiff had sold a

portion of his agricultural land under the sale deed at Ex.P5,

but, could not able to show anywhere in his case that the

plaintiff has stated that he had retained that sale amount with

him either in the form of cash or in his bank account to enable

him to purchase the suit schedule property. Therefore, it has to

be held that the plaintiff could not be able to establish that he

was ready and willing to perform his part of the contract. Thus

the finding of the trial Court in this regard which has answered

Issue No.4 in the Negative cannot be found fault with.

32. From the above analysis, it is clear that the plaintiff

has failed to prove that the defendants had executed an

agreement in his favour as per Ex.P1 and that they had received

a sum of `3,00,000/- from him as a part consideration under the

agreement. It is also established that the plaintiff has even

failed to prove that always he was ready and willing to perform RFA.No.1978/2019

his alleged part of the promise under the contract. Therefore,

without discussing any further, it can be said that the plaintiff

has failed to prove that he is entitled for the relief of specific

performance or even in the alternative, refund of the alleged

advance amount of `3,00,000/- from the defendants. Since the

trial Court, though with limited reasons has arrived at the same

finding, which are not erroneous, the same does not warrant any

interference at the hands of this Court.

33. Accordingly, I proceed to pass the following order:

ORDER

The Regular First Appeal is dismissed as devoid of

merits.

In view of the reasons stated above, IA.No.1/2021 stands

dismissed.

Registry to transmit a copy of this judgment along with

trial Court records to the concerned trial Court without any

delay.

Sd/-

JUDGE

bk/mbb