Smt Chikkamma W/O Kempaiah vs Smt D R Kamalamma W/O M. Basavegowda
2024 Latest Caselaw 10651 Kant

Karnataka High Court

Smt Chikkamma W/O Kempaiah vs Smt D R Kamalamma W/O M. Basavegowda on 19 April, 2024

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                                                        NC: 2024:KHC:16203
                                                      RFA No. 2562 of 2007




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                        DATED THIS THE 19TH DAY OF APRIL, 2024

                                          BEFORE
                           THE HON'BLE MR JUSTICE C M JOSHI
                      REGULAR FIRST APPEAL NO.2562 OF 2007 (SP)
                 BETWEEN:
                 1.     SMT. CHIKKAMMA W/O KEMPAIAH
                        AGED ABOUT 72 YEARS,
                        R/A. NO.161, LAKSHMIPURA,
                        7TH CROSS, KEMPEGOWDANAGAR,
                        BANGALORE-560019.
                 2.     SRI KEMPAIAH S/O CHELUVAIAH
                        SINCE DECEASED BY L.R'S,
                 2(a) MRS. CHIKKAMMA
                      W/O LATE KEMPAIAH,
                      AGED ABOUT 70 YEARS,
                 2(b) MRS. K. LAKSHMI DEVI
                      D/O LATE KEMPAIAH,
                      AGED ABOUT 45 YEARS,
                 2(c)   MR. K. JAGADISH
                        S/O LATE KEMPAIAH,
Digitally
signed by               AGED ABOUT 44 YEARS,
NANDINI R
Location: High   2(d) MR. K SURESH
Court of              S/O LATE KEMPAIAH,
Karnataka             AGED ABOUT 42 YEARS,

                 2(e) MR. K. VIJAYAKUMAR
                      S/O LATE KEMPAIAH,
                      AGED ABOUT 42 YEARS,
                        ALL OF THEM ARE RESIDING AT NO.161,
                        7TH CROSS, KEMPEGOWDA NAGAR,
                        BENGALURU-19.
                                                            ...APPELLANTS
                 (BY SRI RAJAGOPALA NAIDU AND K.R. PRADEEP, ADVOCATES)
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                                      NC: 2024:KHC:16203
                                    RFA No. 2562 of 2007




AND:

1.     SMT. D. R. KAMALAMMA W/O M. BASAVEGOWDA
       SINCE DECEASED BY L.R'S,

1(a) MR. SHASHIDHAR S/O LATE M. BASAVEGOWDA,
     MAJOR BY AGE,

1(b) MR. K.B. VISHNUKUMAR
     S/O LATE M. BASAVEGOWDA,
     MAJOR BY AGE,
     BOTH ARE RESIDING AT NO.26 1ST MAIN,
     2ND CROSS, NKG LAYOUT, BSK 3RD STAGE,
     BENGALURU-560085

1(c)   MRS. K.B. SAVITHRI
       D/O LATE M. BASAVEGOWDA,
       W/O SUDHAKAR,
       MAJOR BY AGE,
       RESIDING AT NO.34, YELLAPPA REDDY ROAD,
       1ST CROSS, NEAR GANESHA TEMPLE,
       BABUSABPALYA,
       BENGALURU NORTH, BENGALURU-560043
1(d)
       MRS. K.B. SUNANDA
       D/O LATE M. BASAVEGOWDA,
       W/O B. RADHAKRISHNEGOWDA,
       RESIDING AT NO.51/90, 3RD CROSS,
       MAYURAVARMA ROAD, LAKSHMIPURA,
       K.G. NAGAR, BENGALURU-560019.

2.     SRI K. B. SHASHIDHAR
       S/O M. BASAVEGOWDA,
       AGED ABOUT 46 YEARS,
       R/A NO.41, 2ND CROSS, RAMAKRISHNA LAYOUT,
       KEMPEGOWDANAGAR,BANGALORE-560 019
                                         ...RESPONDENTS

(BY SRI R. B. DESHPANDE AND N.S. BHAT, ADVOCATES FOR
C/R-2 AND FOR R1(A TO D)
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                                         NC: 2024:KHC:16203
                                      RFA No. 2562 of 2007




     THIS RFA IS FILED U/O 41 R 1 R/W SEC.96 OF CPC
PRAYING TO ALLOW THIS MEMORANDUM OF REGULAR FIRST
APPEAL THEREBY SETTING ASIDE THE JUDGMENT AND
DECREE DATED.17/09/2007 PASSED BY THE XXV ADDITIONAL
CITY CIVIL JUDGE, BANGALORE CITY, IN O.S.NO.1628/1994
DECREEING THE SUIT OF THE PLAINTIFFS/ RESPONDENTS
AND CALL FOR THE RECORDS FROM THE TRIAL COURT AND
GRANT SUCH OTHER RELIEF/S AS THIS HON'BLE COURT MAY
DEEM FIT TO GRANT IN THE CIRCUMSTANCES OF THE APPEAL.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
19.01.2024 AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THROUGH VIDEO CONFERENCING AT KALABURAGI
THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                       JUDGMENT

Being aggrieved by the judgment and decree passed

in O.S.No.1628/1994 dated 07.09.2007 by the learned

XXV Additional City Civil and Sessions Judge, Bengaluru,

the defendants are in appeal before this Court.

2. The parties would be referred to as per their

ranks before the Trial Court for the sake of convenience.

3. The factual matrix of the case are that the

appellant - defendant No.1 is the owner of Site No.42

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situated at Kempegowda Nagar, II Cross, Ramkrishna

Math Layout, Bengaluru, and the said site was allotted to

defendant No.1 by BDA and she was put in possession of

the same. The BDA had executed Lease-Cum-Sale Deed,

in the year 1982. Defendant No.1 was in need of money

for her family necessity and to perform the marriage of the

daughter and therefore, she offered to sell the same to the

plaintiffs for a consideration of Rs.1,00,000/-. The

plaintiffs accepted the proposal and on 29.05.1991, an

Agreement of Sale was entered into between the plaintiffs

and the defendants. The entire sale consideration of

Rs.1,00,000/- was paid to defendant No.1 and the sale

deed was to be executed by the defendants by handing

over all the documents. In spite of repeated requests and

demands, the defendants failed to execute the sale deed,

though they had delivered the possession of the site to the

plaintiffs. It was alleged that the defendants, later

obstructed the possession and enjoyment of the suit site

by the plaintiffs and attempted to put up a construction.

Therefore, the plaintiffs had filed a suit for injunction in

NC: 2024:KHC:16203

O.S.No.3815/1991 and the Court had directed to maintain

status-quo over the suit site. Defendant No.1 had also

filed O.S.No.3834/1992 for injunction and it was

withdrawn on 20.11.1993. It was alleged that defendant

No.2 had filed a false criminal complaint against the

plaintiffs and the husband of plaintiff No.1, alleging that

they had obtained the suit sale agreement by practicing

fraud and after investigation Malleshwaram Police filed a

'B' Summary Report, which was protested by defendant

No.2. Another similar complaint was filed before the

Kempegowdanagara Police Station, which was closed as

the dispute was civil in nature. When the defendants failed

to comply with the legal notice dated 30.11.1992, the

plaintiffs were constrained to file the present suit for

specific performance of the contract of Agreement of Sale.

4. The defendants on appearance filed the written

statement and resisted the suit. They contended that the

suit is false, frivolous and not maintainable. Though, they

admitted that defendant No.1 is the owner of the suit site,

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they denied the execution of the Agreement of Sale dated

29.05.1991 and the receipt of the sale consideration. They

also denied the delivery of possession of the suit site to

the plaintiffs. It was alleged that the plaintiffs with the aid

of their son, managed to obtain the signatures of

defendant No.1 and her children on blank papers in the

guise of filing an application to the SSLC Board, for re-

totaling of the marks of the daughter of the defendants in

SSLC examination, with the help of one Prashant. A

relative of the plaintiffs, Prashant, was an employee of the

SSLC Board and they had filed a representation to the

Chairman of the SSLC Board in that regard. They have

narrated that they have lodged the complaint to the

Malleshwaram Police station on 4-6-1991 and then 'B'

Report was filed by the police, which was protested by the

defendants and it resulted in C.C.No.17135/1993. They

have also narrated that in the complaint before the Ulsoor

Gate Police Station, in Crime No.16/1995 they had alleged

fraud and various other criminal prosecutions were

initiated. They admitted the suit filed by the plaintiffs as

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well as the defendants in O.S.No.3815/1991 and

O.S.No.3834/1992. Therefore, they contended that the

suit is not maintainable as there was no such agreement

and the same is liable to be dismissed.

5. On the basis of the above pleadings, issues

were framed by the Trial Court and plaintiff No.1 was

examined as PW.1 and witness was examined as PW.2,

Ex.P.1 to Ex.P.9 were marked. Defendant No.1 was

examined as DW.1 and Ex.D.1 to Ex.D.3 were marked in

the evidence.

6. After hearing the arguments, the Trial Court,

answered the issues as below and proceed to decree the

suit as prayed for.

Issue
                           Issue                    Findings
 No.

  1.        Does     plaintiffs    prove     that      In the
            defendant agreed to sell suit           affirmative

property for his family necessities?

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2. Does plaintiffs prove first In the defendant executed sale affirmative agreement on 29.05.91 by receiving entire sale consideration of Rs.1,00,000/-?

3. Does plaintiffs prove that they In the were put in possession by the affirmative defendants of the suit schedule property under sale agreement?

4. Does plaintiffs prove that In the defendants failed to perform their affirmative part of contract by not registering the sale deed?

5. Does plaintiffs prove that In the defendants failed to perform their affirmative part of contract by not registering the sale deed?

6. Does defendants prove that In the plaintiffs have obtained signatures Negative on blank papers as per para 3 of the written statement?

7. Does defendants prove that the In the suit is time barred? Negative

8. Whether there is cause of action to In the the suit? affirmative

9. Whether plaintiffs are entitled for In the the suit reliefs? affirmative

10. If so, under what Order or Decree? As per the final order

NC: 2024:KHC:16203

7. Being aggrieved by the said judgment, the

defendants have approached this Court in appeal. During

the pendency of this appeal, appellant No.2 and

respondent No.1 died and their legal heirs were brought

on record.

8. On admission of the appeal, the Trial Court

records have been secured.

9. On issuance of notice, the respondents

appeared through their counsel. Arguments of both the

sides were heard.

10. The learned counsel appearing for the

appellants submitted that the plaintiffs were in possession

of the suit site on the basis of the Possession Certificate

issued by the BDA and the Lease-Cum-Sale Agreement.

However, in the agreement for sale, relied by the

plaintiffs, it is stated as the Sale Deed. He submits that

the Possession Certificate as well as Lease-Cum-Sale Deed

are dated 12.11.1982 and the Agreement of Sale relied by

the plaintiffs is dated 29.05.1991 and therefore, the

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Agreement of Sale is void- ab- initio. It is contended that,

under the Lease-Cum-Sale Agreement there is an

embargo for alienation for a period of 10 years. Therefore,

it is contended that the agreement was a fabricated

document by the son of plaintiff No.1 and also that the

payment of the consideration amount is not proved. The

second contention is that defendant No.2 was not the

owner of the property, but even then, he is arrayed as a

party to the suit. It is contended that under the

Agreement of Sale, the plaintiffs allege that the possession

was delivered to them, but on the same date defendant

No.1 was not the owner since she got the ownership only

on 12.11.1992. He submits that all along the defendants

are in possession of the property by paying the property

tax and the defendants had seriously resisted the Ex.P.1-

sale agreement by filing a criminal complaint that it was

got created with a fraudulent purpose. It is contended that

as per the agreement at Ex.P.1, the sale deed should have

been executed within a month after handing over of the

possession, but no demand was made within the expiry of

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the stipulated period and no enquiry was made by the

plaintiffs. It is contended that the Title Deeds are still with

the defendants and they were used for borrowing loan

from a Bank. He has pointed out the discrepancies in the

testimony of PWs.1 and 2 regarding the payment of the

consideration amount. It is pointed out that several

criminal cases were initiated by the defendants and the

allegations made in the criminal cases were not considered

by the Trial Court.

11. In support of his contentions, the learned

counsel for the appellants has placed reliance on the

following judgments:-

A) Y.R. Mahadev vs. K. Dayalan1, wherein it was

held that the agreement-of-sale during the

subsistence of lease-cum-sale agreement is violative

of statutory rule prohibiting such alienation and as

such, it is void- ab- initio.

1997 (4) KRLJ 264

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B) Pushpabai vs. Dr. Williams2 regarding the

limitation and ready and willingness.

C) Kashiram vs. Omprakash Jawal3, wherein it

was held that though, the rise in prices during

pendency of the suit may not be sole consideration

for refusing the decree of specific performance, it is

equally settled law that granting decree in respect of

immovable property is not automatic.

D) Parakunnan Veethill Joseph son Mathew vs.

Nedumbar Kuruvila's son and others4,

concerning the discretion that could be exercised by

the Court under Section 20 of the Specific Relief Act.

E) He also relied on judgment in the case A.Y.

Nagarajayya vs. B. Arvind5, regarding the

requirement of registration of the agreement when

the possession is delivered.

AIR 2011 MADRS 447

AIR 1996 SC 2150

AIR 1987 SC 2328

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F) Jayalaxmi Reddy vs. Tippanna and others6,

concerning to the stamp duty to be paid on the date

of agreement.

G) H.P. Basavarajappa vs. K. Vijayalaxmi and

others7 concerning the requirement of registration

when the agreement-of-sale is a conveyance.

12. Per contra, the learned counsel appearing for

the respondents has contended that the plaintiffs have

proved the Ex.P.1 agreement-of-sale as required under

law, by examining an attesting witness as PW.2. The

defendants have also admitted their signature on Ex.P.1

and therefore, sufficient evidence has been placed by the

plaintiffs in respect of Ex.P.1. It is submitted that the

order passed by the City Civil Court in O.S.No.3815/1991

directing both the parties to maintain status--quo is still

inforce and therefore, the subsequent developments are

not of much importance. It is submitted that the readiness

and willingness of the plaintiffs are expressed in the plaint,

ILR 2002 KAR 5163

2007 (4) KRLJ 326

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legal notice and also in the evidence. It is contended that

defendant No.1 had represented that she is in need of

money for marriage of her daughter and for legal

necessity. Therefore, when defendant No.1 has a daughter

of marriageable age the plaintiffs believed the same and

paid entire balance consideration amount. He points out

that the allegations of fraud, misrepresentation and

concoction are not proved by the defendants and

therefore, the Trial Court has rightly decreed the suit.

13. In support of his contention, he relied on the

following judgments.

A) M. Kamalamma and others vs. Ayyasamy8 to

contend that the applications under Order 41 Rule 27

of CPC, are not designed to help the parties to patch-

up the weak points and make-up for omissions

earlier made, but they are for enabling the Appellate

Court to pronounce a judgment. The Courts must be

2001 (7) SCC 503

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cautious about the allowing of such applications after

long interval between the decree and the application.

         B)    In   the   case   of    K.   Prakash   vs.   B.   R.

         Sampathkumar9,.


         C)    In the case of    N. Venkatappa vs. Lingappa

         Reddy10,.

14. During pendency of this appeal, the appellants

have filed an application under Order 41 Rule 27 of CPC,

seeking to produce 13 documents. The affidavit filed in

support of the application states that the defendants are

still in possession and enjoyment of the suit site and they

had mortgaged the same to rise a loan. These documents

are very much required to prove the case of the

defendants and if they are not permitted to be produced,

they would be put to irreparable loss, but on the other

hand, no harm will be caused to the plaintiffs. Therefore,

they have sought for allowing the application. These

2014 AIR SLW 5795

ILR 1998 KAR 2730

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documents include the Tax Payment Receipts, Discharge

certificate from the Bank, Marriage Invitation Card, loan

agreement tax receipts, sale deed executed by BDA,

encumbrance certificate etc,.

15. The application is opposed by the plaintiffs

contending that there is no reason assigned by the

defendants making out a ground that would fall within the

scope of Order 41 Rule 27 of CPC.

16. In the light of the above submissions made by

the learned counsel appearing for both the sides, the

points that arise for consideration as below:-

i. Whether the plaintiffs have proved that the defendants had executed an agreement-of-sale as per Ex.P.1 by paying entire sale consideration of Rs.1,00,000/-.?

ii. Whether such agreement-of-sale is bad for non-

registration, insufficient stamp duty and it is void on account of embargo for alienation under lease- cum- sale agreement?

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iii. Whether the Trial Court is justified in exercising the judicial discretion in favour of the plaintiffs?

17. This Court is aware of the scope of Section 96

of the CPC and the settled position of law as enunciated in

the case of Santosh Hazari v. Purushottam Tiwari11.

In a recent judgment, in the case of V. Prabhakara v.

Basavaraj K12, the Apex Court has reiterated the

principles governing first appeal under Section 96 CPC in

para 22 and 24 as below;

"Section 96

22. The first appellate court while exercising power

under Section 96 can re-do the exercise of the trial

court. However, such a power is expected to be

exercised with caution. The reason being, the trial court

alone has the pleasure of seeing the demeanour of the

witness. Therefore, it has got its own advantage in

assessing the statement of the witnesses which may not

be available to the appellate court. In exercising such a

power, the appellate court has to keep in mind the views

of the trial court. If it finds that the trial court is wrong,

its decision should be on the reasoning given. A mere

(2001) 3 SCC 179

(2022) 1 SCC 115

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substitution of views, without discussing the findings of

the trial court, by the appellate court is not permissible.

If two views are possible, it would only be appropriate to

go with the view expressed by the trial court. While

adopting reasoning in support of its findings, the

appellate court is not expected to go on moral grounds

alone.

23. xxx xxx xx

24. Thus, we have no hesitation in holding that though

the first appellate court is the final court of fact and law,

it has to fall in line with the scope and ambit of Section

96 of the Code."

18. It is in the light of the above scope and ambit of

Section 96 of CPC, this Court has to consider the evidence

on record.

Re Point No.1:

19. The first aspect to be considered by this Court

is, whether the Agreement-of-Sale executed by the

defendants is proved or not? The said Agreement-of-Sale

is produced at Ex.P.1. It shows that it is an un-registered

agreement-of-sale executed on 29.05.1991. It states that

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the vendor had obtained the property under a deed

executed by the Authorized Officer of the BDA on

12.11.1982 and a Possession Certificate was also issued

on the same day. The agreement also states that the

entire sale consideration amount was paid by the

purchaser and since there is an embargo for alienation of

the property for ten years, on expiry of the said ten years

i.e., on 12.11.1992, she would execute the sale deed in

favour of the purchasers. It also states that in case she

fails to execute the sale deed, she would refund the sum

of Rs.1,00,000/- along with twice the said amount.

20. In order to prove Ex.P.1, the plaintiffs have

examined a witness to the said document as PW.2. PW.2

in his testimony has stated that he was signatory to Ex.P.1

and he has identified his signature on the document. He

also states that the possession of the site was delivered to

the plaintiffs. The cross-examination does not elicit

anything which disprove the execution of Ex.P.1.

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21. DW.1 denies Ex.P.1, saying that it was signed

by her due to misrepresentation by the plaintiffs that her

signatures are required for re-totaling the SSLC marks

card of her daughter. She states that on 4-6-1991, she

filed a complaint to the police alleging fraud. The plaintiffs

have produced the judgment of the Criminal Courts at

Exs.P2 to P4, which disclose that the contentions of the

fraud were not proved. It is also pertinent to note that in

the cross-examination, DW.1 states that her signatures

were taken on blank white papers. Such statements made

by her repeatedly show that she do not say that

signatures were obtained on stamp papers. It is also

evident that the son of defendant No.1 had also signed

Ex.P1 and it cannot be believed that for retotalling or

revaluation of marks cards, son of DW1 was also

required. Moreover, DW1 is not sure whether it was for

retotalling or revaluation or consolidation. Evidently, the

SSLC marks card of the daughter of DW1 was not

produced. Therefore, the contention of DW.1 that she

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signed Ex.P.1 without knowing the contents cannot be

accepted.

22. It is also relevant to note that though, the

defendants contend that they had filed several complaints

alleging inducement, fraud and misrepresentation etc.,

none of the complaints were upheld either by the

Investigating Agency or the Criminal Courts. Therefore,

the Trial Court has rejected the contention of the

defendants that there was fraud by the plaintiffs.

23. Another contention by the defendants -

appellants is that they have mortgaged the property on

28.04.1991 in favour of one Yaduraj s/o Subbalingegouda.

The said document is obviously prior to the execution of

Ex.P.1 and the very fact that it does not find place in

Ex.P.1 shows that it cannot be believed. The defendants

have not adduced the evidence of the said Yaduraj to

establish such mortgage.

24. The trial Court has considered these aspects in

para 12 and 13 of the impugned judgment. It has rightly

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come to the conclusion that the totality of the evidence on

record clearly shows the execution of the document and

that the fraud and misrepresentation alleged by the

defendants is not proved. There is nothing which shows

that the evidence is not appreciated by the trial Court in a

proper manner. Hence this Court do not find any reason to

differ with the conclusions reached by the trial Court and

as such, point No. 1 is answered in the affirmative.

Re: Point No.2:

25. The next contention of the learned counsel for

the appellants is that the transaction is hit by the embargo

for alienation, as per the Lease-Cum-Sale Agreement and

the BDA Rules. In this regard, he relies on the judgment of

this Court in the case Y.R. Mahadev vs. K. Dayalan,

reported in 1997 (4) KRLJ 264. It was a case wherein a

suit for specific performance came to be dismissed on the

ground that the CITB Rules 1982 was applicable but not

the BDA Rules of 1984. Holding that the 1982 Rules forbid

alienation in any form, this Court had held that the

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agreement for sale is void. In the case on hand, the trial

Court has observed that BDA Rules 1984 as laid down in

the case of N. Y. Yogambika vs. B.H. Narainsingh13 is

applicable.

26. It is evident that the original allotment letter is

not available on record. However, Ex.P.1 mentions that

the Lease-Cum-Sale Agreement was registered on

12.11.1982. Therefore, no fault can be found with respect

to the conclusions reached by the trial Court. It is trite law

that if there is any violation of the condition of the grant or

allotment, it is for the concerned authorities to act on it

and to see whether there is any violation of conditions of

the agreement by the allottee. The specific performance

by way of sale deed was to happen on 12-11-1992, since

the 10 years embargo was to end on 11-11-1992.

Therefore, soon after the specified time, the defendants

were to execute the sale deed.

ILR 1982 KAR 717

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27. It is also relevant to note that in the year 1991,

even though the possession was handed-over under the

Agreement-of-Sale, there was no necessity of registering

the document and payment of the stamp duty on the

value of the transaction. Such amendment was introduced

to the provisions the Karnataka Stamp Act, by way of

amendment in the year 1995. Therefore, the contention

that the stamp duty is insufficiently paid on Ex.P.1 and

therefore, the said document needs to be impounded

cannot be accepted. For aforesaid reasons, point No. 2 is

answered in the negative.

28. The grant of the specific relief is the discretion

of the Court. The trial Court holds that though the

plaintiffs have sought for the alternative relief, they cannot

be deprived of the specific relief. It do not consider the

hardship and the fact that disputes had erupted within

days of the execution of the agreement as per Ex.P1. It

also do not consider the comparative hardship that would

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be caused to either of the parties. Thus, the reasons for

exercising the judicial discretion in favour of the plaintiffs

are not available.

29. The plaintiffs contend that the suit site is

adjacent to the house owned by them. Whereas, the

defendants contend that they had not at all executed the

Agreement of Sale and it was outcome of fraud. But they

failed to prove such contention despite several litigations.

The learned counsel for the appellants/defendants

contends that the escalation of the price of the land is also

an aspect that has to be considered by the Court. Though

the increase in the value of the property cannot be a

ground to deny the specific performance, it cannot be a

factor which could be ignored.

30. In Shenbagam v. KK Rathinavel14, the

Supreme Court observes as below:

"37. In the context of the discretion under Section 20 of the Specific Relief Act, several

2022 SCC OnLine SC 71

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decisions of this Court have considered whether it is appropriate to direct specific performance of a contract relating to the transfer of immovable property, especially given the efflux of time and the escalation of prices of property. In Satya Jain v. Anis Ahmed Rushdie14, this Court held:

"39. The long efflux of time (over 40 years) that has occurred and the galloping value of real estate in the meantime are the twin inhibiting factors in this regard. The same, however, have to be balanced with the fact that the plaintiffs are in no way responsible for the delay that has occurred and their keen participation in the proceedings till date show the live interest on the part of the plaintiffs to have the agreement enforced in law.

40. The discretion to direct specific performance of an agreement and that too after elapse of a long period of time, undoubtedly, has to be exercised on sound, reasonable, rational and acceptable principles. The parameters for the exercise of discretion vested by Section 20 of the Specific Relief Act, 1963 cannot be entrapped within any precise expression of language and the contours thereof will always depend on

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the facts and circumstances of each case. The ultimate guiding test would be the principles of fairness and reasonableness as may be dictated by the peculiar facts of any given case, which features the experienced judicial mind can perceive without any real difficulty. It must however be emphasised that efflux of time and escalation of price of property, by itself, cannot be a valid ground to deny the relief of specific performance. [...]

41. The twin inhibiting factors identified above if are to be read as a bar to the grant of a decree of specific performance would amount to penalising the plaintiffs for no fault on their part; to deny them the real fruits of a protracted litigation wherein the issues arising are being answered in their favour."

(emphasis supplied)

38. In directing specific performance of the agreement, this Court in Satya Jain (supra) held that sale deed must be executed for the current market price of the suit property.

39. In Nirmala Anand v. Advent Corporation (P.) Ltd.15, a three-judge Bench of this Court observed that in case of a phenomenal increase in the price of the land, the Court may impose a reasonable condition in the decree such as payment of an

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additional amount by the purchaser. In decreeing the suit for specific performance, the Court observed:

"6. It is true that grant of decree of specific performance lies in the discretion of the court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the considerations besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the considerations to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing specific performance. There may be other circumstances on which parties may not have any control. The

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totality of the circumstances is required to be seen."

(emphasis supplied)

40. In KS Vidyanadam v. Vairavan16, an agreement to sell immovable property was entered into between the plaintiff-buyer and the defendant- seller for a consideration of Rs. 60,000, where earnest money of Rs. 5,000 had been paid in advance. The agreement stipulated that the plaintiff had to purchase stamp papers and pay the balance amount within six months and call upon the defendants to execute the sale deed. The plaintiff filed a suit for specific performance after a lapse of two and a half years seeking performance of the contract. The Court held:

"10. It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing a suit is three years. From these two circumstances, it does not follow that any and every suit for specific performance of the agreement (which does not provide specifically that time is of the essence of the contract) should be decreed provided it is filed within the period of limitation notwithstanding the time-limits stipulated in the agreement for doing one or the other thing by one or the other party. That would amount to saying that the time-limits prescribed by the parties in the agreement have no significance or value and that they mean nothing.

[...]

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In this case, the suit property is the house property situated in Madurai, which is one of the major cities of Tamil Nadu. The suit agreement was in December 1978 and the six months' period specified therein for completing the sale expired with 15-6-1979. The suit notice was issued by the plaintiff only on 11-7-1981, i.e., more than two years after the expiry of six months' period. The question is what was the plaintiff doing in this interval of more than two years? [...] There is not a single letter or notice from the plaintiff to the defendants calling upon them to get the tenant vacated and get the sale deed executed until he issued the suit notice on 11-7-1981. It is not the plaintiff's case that within six months', he purchased the stamp papers and offered to pay the balance consideration. [...]

13. In the case before us, it is not mere delay. It is a case of total inaction on the part of the plaintiff for 2½ years in clear violation of the terms of agreement which required him to pay the balance, purchase the stamp papers and then ask for execution of sale deed within six months. Further, the delay is coupled with substantial rise in prices -- according to the defendants, three times -- between the date of agreement and the date of suit notice. The delay has brought about a situation where it would be inequitable to give the relief of specific performance to the plaintiff."

(emphasis supplied)

41. True enough, generally speaking, time is not of the essence in an agreement for the sale of immoveable property. In deciding whether to grant the remedy of specific performance, specifically in suits relating to sale of immovable property, the

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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. In the present case, three decades have passed since the agreement to sell was entered into between the parties. The price of the suit property would undoubtedly have escalated. Given the blemished conduct of the respondent-plaintiff in indicating his willingness to perform the contract, we decline in any event to grant the remedy of specific performance of the contract. However, we order a refund of the consideration together with interest at 6% per annum."

31. In the case on hand, the Agreement of Sale was

entered into in the year 1991. This first appeal is being

decided in the year 2024. Much water has flown in three

and half decades and the market prices have sky-

rocketed. Though Explanation to Section 20 (2)15 of

"20. Discretion as to decreeing specific performance.--(1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.

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Specific Relief Act, lays down that the increase in the

market value is not a ground to deny the specific

performance, the judicial pronouncements as depicted

above, show a marked deviation to achieve equitable

justice. The plaintiff had paid the entire sale consideration

of Rs 1,00,000/-. It was agreed to execute the sale deed

soon after the embargo for sale ended. But the defendants

had raised the dispute within days of the agreement.

Therefore, it would not be proper to order for the specific

performance of the agreement of sale. The defendants had

agreed to refund the amount with twice the agreed

amount. Justice would be achieved if the consideration of

Rs.1,00,000/- is ordered to be refunded with interest of

(2) The following are cases in which the court may properly exercise discretion not to decree specific performance--

(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or

(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; or

(c) xxxxxxxx Explanation I.--Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b).

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6% p.a, along with Rs.2,00,000/- as agreed. Hence, this

point raised is answered in the negative.

Re: IA No.1/2020.

32. Appellants filed IA No.1/2020 under Order 41

Rule 27 of CPC seeking to produce 13 documents as

additional evidence. The affidavit filed in support of

application states that they had obtained loan by

mortgaging the title deeds of the suit site and those

documents are necessary to prove the possession of the

defendants /appellants. In order to establish the

contention of the appellant, these documents are essential

and irreparable loss would be caused to them if production

is not allowed.

33. The application is opposed by the respondents

contending that the appeal was filed in the year 2007,

admitted in the year 2008 and nothing prevented the

appellants to produce additional evidence till 2020. In the

meanwhile, the appeal was dismissed for non-prosecution

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and therefore, the application is not maintainable.

Secondly, they contend that the affidavit do not state

anything about the grounds that fall within the scope of

Rule 27 Order 41 of CPC.

34. The additional evidence sought to be produced

are the tax payment receipts for the year subsequent to

the filing of the suit, a discharge certificate showing

repayment of the loan borrowed by mortgaging the suit

site by way of deposit of title deeds, the marriage

invitation card of the daughter of the defendant No.1, her

school record, encumbrance certificate, loan agreements

with financial institutions and the absolute sale deed

executed by BDA in favour of defendant No.1 dated

13.03.1999 and an approved building plan. Obviously

these documents could have been produced by the

appellants before the trial Court. Nothing is mentioned in

the affidavit filed in support of application as to why these

documents were not produced before the trial Court or

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how these documents are essential for just adjudication of

the matter.

35. It is evident that when the application does not

mention any of the grounds falling within the scope of Rule

27 Order 41 of CPC, the appellants cannot seek the

production of additional evidence as of right. The other

ground is, whether this Court needs the additional

evidence to pronounce the judgment. From the discussion

made supra, there is no need of any additional evidence to

pronounce the judgment in the matter. Since the

documents prima-facie show they came into existence

subsequent to the filing of the suit; and were available

with the appellants when the trial commenced, the

application is bereft of any merits. Therefore, the

application deserves to be dismissed. In this regard, the

judgment of the Apex Court in the case of Union of India

v. Ibrahim Uddin16, lays down the parameters that are

(2012) 8 SCC 148

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applicable to consider the application U/o 41 Rule 27 of

CPC.

36. In view of the findings of this Court on points

No.1 to 3 above, the appeal deserves to be allowed in

part. Hence, the following:

ORDER

(i) IA No. 1/2020 is dismissed.

(ii) Appeal is allowed in part.

(iii) The impugned judgment of the trial Court in

O.S.No.1628/1994 dated 17.09.2007 is hereby

set aside.

(iv) Suit of the plaintiffs is dismissed so far as the

relief of specific performance is concerned.

(v) Suit of the plaintiffs is decreed directing the

defendants to pay the sum of Rs.1,00,000/-

along with interest at 6% per annum from the

date of the agreement till its deposit. The

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defendants are also liable to pay damages of

Rs.2,00,000/-.

(vi) There shall be a charge over the suit property

till the payments are made as above.

(vii) No order as to costs.

Sd/-

JUDGE

tsn*