Karnataka High Court
Vithal S/O Siddappa Harijan And Anr vs Suresh S/O Bhavan Deshpande And Ors on 29 May, 2024
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RSA No. 200020 of 2016
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MRS JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO. 200020 OF 2016 (SP)
BETWEEN:
1. VITHAL S/O SIDDAPPA HARIJAN,
AGED ABOUT 71 YEARS,
R/O TENNELLI, TQ: INDI,
SINCE DECEASED THROUGH HIS LEGAL
REPRESENTATIVES:
a SMT. SIDDAPPA W/O VITHAL HARIJAN, (SON)
AGE: 38 YEARS, OCC: PVT. SERVICE
R/O: H.NO.51, KAMTA NAKA, SOLAPUR,
DIST. SOLAPUR, MAHARASHTRA.
b. SRI. KAMALABAI,
W/O RAMACHANDRA WAGHMARE, (DAUGHTER)
Digitally signed AGE: 54 YEARS, OCC: HOUSEHOLD,
by SWETA R/O: VIJAYPURA NAKA NO.2, JOPADA PATTI,
KULKARNI
SOLAPUR(MAHARASTRA).
Location: High
Court of
Karnataka c. SMT. SUNITA,
W/O SRIMANTH NIMBALKAR, (DAUGHTER)
AGE: 40 YEARS, OCC: HOUSEHOLD,
R/O: LAL DONGAR AREA, CHEMBUR,
MUMBAI.
d. SMT. PARVATHI,
W/O HANMANTHA INGAGLI, (DAUGHTAER)
AGE: 30 YEARS, OCC: HOUSEHOLD,
R/O: POST ANAKALGI, TQ. DEVAR HIPPARGI,
DIST: VIJAYAPURA.
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RSA No. 200020 of 2016
e. VIJAY S/O VITHAL HARIJAN (SON)
AGE: 28 YEARS, OCC: AGRICULTURE,
R/O: TENIHALLI VILLAGE, TQ. INDI,
DIST: VIJAYAPURA.
(AMENDED AS PER ORDER DATED 10.08.2018)
2. BABURAO S/O SIDDAPPA HARIJAN,
AGED ABOUT 66 YEARS,
R/O TENNELLI, TQ. INDI, DIST: BIJAPUR
SINCE DECEASED THROUGH HIS LEGAL
REPRESENTATIVES:
a. SMT. SHAKUNTALA,
W/O BABURAO TENHALLIKAR,
AGE: 66 YEARS, (WIFE)
b. SHRI. SANTOSH S/O BABURAO TENHALLIKAR,
AGE: 38 YEARS, (SON)
BOTH R/O: BLOCK NO.33,
SIDDHARTH HOUSING SOCIETY,
NORTH SADAR BAZAR, SOLAPUR, (MAHARASTRA)
c. SMT. VANDANA,
W/O GANESH MELINMANI,
AGE: 47 YEARS, (DAUGHTER)
R/O SECTOR NO.13, SBI COLONY, NERUL,
NAVI MUMBAI, MAHARASHTRA.
d. SMT. CHANDANA W/O ASHOK SANGNURE,
AGE: 45 YEARS, (DAUGHTER)
R/O: H. NO.11/970-2-B-5, ASHOK NAGAR,
MSK MILLS ROAD, KALABURAGI-585103.
(AMENDED AS PER ORDER DATE: 10.08.2018)
...APPELLANTS
(BY SRI CHAITANYAKUMAR CHANDRIKI, ADVOCATE)
AND:
1. SURESH,
S/O BHAVAN DESHPANDE,
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RSA No. 200020 of 2016
AGE: 48 YEARS, OCC: AGRICULTURE.
2. KRISHNAJI,
S/O BHAVAN DESHPANDE,
AGE: 46 YRS, OCC: AGRICULTURE.
3. RAGHAVENDRA,
S/O BHAVAN DESHPANDE,
AGE: 45 YEARS, OCC: AGRICULTURE.
4. SMT. VIMALABAI,
W/O KRISHNAJI JOSHI,
AGE: 34 YEARS, OCC: HOUSEHOLD.
5. SHAILABAI,
W/O MAHIPATI KAKHANDAKI,
AGE: 33 YEARRS, OCC: AGRICULTURE
ALL ARE R/O. GORNAL, TQ. INDI
DIST:BIJAPUR-586 101.
...RESPONDENTS
(BY SRI YASHAS S DIKSHIT, ADV FOR,
SRI GANESH SUBHASHCHANDRA KALBURGI, ADV. FOR R1
TO R3;
R4-ABATED; V/O DATED: 29.11.2017; NOTICE TO R5-
SERVED)
THIS RSA IS FILED U/S 100 OF CPC, PRAYING TO SET
ASIDE THE JUDGMENT AND DEVREE IN RA NO.28/2013
PASSED BY THE PRL. DISTRICT JUDGE AT VIJAYAPURA, DATED
07.10.2015 AND ALSO SET ASIDE THE JUDGMENT AND
DECREE OF THE TRIAL COURT DATED: 21.01.2013 IN OS.
NO.150/2011 PASSED BY THE SENIOR CIVIL JUDGE AT INDI
AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 200020 of 2016
JUDGMENT
The unsuccessful plaintiffs are before this Court in
the regular second appeal assailing the concurrent findings
of facts of the Courts below, whereby the suit seeking for
specific performance of contract in respect of the suit
schedule property was dismissed by the Courts below.
2. Parties herein are referred to as per the ranking
before the Trial Court for the sake of convenience.
3. Suit seeking for specific performance of contract
in respect of an agreement of sale dated 21.01.1965 for a
sale consideration of Rs.625/-. It is stated that Bhavan
S/o Narayanrao Deshpande, the father of the defendants
was exclusive owner of the suit schedule property and he
had put the suit property for sale, the father of the
plaintiffs offered to purchase the suit property for the sale
consideration. It is averred that late Bhavan Deshpande,
agreed to execute the regular sale deed after obtaining
previous sanction from the competent authority after the
completion of consolidation scheme and though the
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plaintiffs' father late Siddappa, during his life time, met
deceased Bhavan Deshpande, to execute the sale deed,
the vendor kept on postponing the same for one or the
other reasons. It is stated that the father of the plaintiffs
Siddappa died on 06.02.1965 and after the death of their
father they are in possession of the suit property.
4. It is averred that the plaintiffs and their father
were always ready and willing to perform their part of the
contract and that they have paid the entire sale
consideration amount to the deceased Bhavan Deshpande,
despite the same the defendants' father had not come
forward to execute the sale deed and on death of Bhavan
Deshpande, neither the defendants have come forward to
execute the sale deed and hence the present suit.
5. Pursuant to the suit summons issued by the
Trial Court, the defendant No.1 filed written statement
which was adopted by defendant Nos.2 and 3 by filing a
memo. The defendants interalia contended that there was
no legal necessity for the deceased Bhavan Deshpande to
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sell the suit property and there was no execution of the
agreement of sale as alleged by the plaintiffs. The
defendants denied that the possession of the suit property
having delivered to the plaintiffs.
6. The Trial Court on the basis of the pleadings
framed the following issues:
1. "Whether the plaintiffs is proves that the late
Bhavan S/o Narayanrao Deshpande has executed
an agreement of sale in favour of the further of the
plaintiff on 21.01.1965?
2. Whether the plaintiffs further proves that they are
in peaceful possession and enjoyment of the suit
property since the date of agreement of sale?
3. Whether the plaintiffs further proves that the
father of defendants and thereafter the defendants
went on postponing the execution of the sale deed
in respect of the suit land?
4. Whether the plaintiffs further proves that they are
ever ready and willing to perform their part of the
contract?
5. Whether the plaintiffs prove that in the alternative
they are entitle for refund of earnest money of
Rs.625/- along with 18% pa?
6. Whether the defendants prove that the suit of the
plaintiff is not at all maintainable?
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7. Whether the plaintiff is entitled for the relief for the
specific performance of contract as prayed for? Or
in the alternative for the refund of earnest money?
8. What order and Decree?"
7. In order to substantiate their claim the plaintiff
No.1 examined himself as PW1 and got marked documents
as Ex.P1 to P12 and two witness as PW2 and PW3, on the
other hand the defendant No.1 examined himself as DW1,
however, no documents were got marked.
8. The Trial Court on the basis of the pleadings,
oral and documentary evidence held that:
1. That the plaintiffs failed to prove about the
execution of the agreement of sale in favour of
the father of the plaintiffs on 21.01.1965.
2. That the plaintiffs failed to prove that they are
in peaceful possession and enjoyment of the
suit property from the date of the agreement of
sale.
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3. That the plaintiffs failed to prove that the father
of the defendants and thereafter the defendants
have postponed the execution of the sale deed
in respect of the suit property.
4. That the plaintiffs failed to prove that they were
ever ready and willing to perform their part of
contract and by the judgment and decree
dismissed the suit of the plaintiff.
Aggrieved the plaintiffs preferred appeal before the First
Appellate Court. The First Appellate Court, while re-
appreciating the entire oral and documentary evidence,
concurred with the judgment and decree of the Trial
Court and also held that the suit of the plaintiffs is
barred by limitation.
9. Heard Sri Chaitanya Kumar Chandriki, learned
counsel for the appellant and Sri Yashas S Dikshit, learned
counsel for Sri Ganesh Subhashchandra Kalaburagi,
learned counsel for the respondents.
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10. The alleged agreement of sale is of the year
1965, the father of the plaintiffs died immediately after
one month of the alleged agreement of sale and the
vendor i.e., defendants' father died in the year 1987. The
plaintiffs contend that they were always ready and willing
to perform their part of the contract from 1965 to 2007.
11. The obligation cast by Section 16(c) of the
Specific Relief Act, ['Act' for short] upon the plaintiffs
makes it mandatory for the plaintiff to prove that he has
already performed or was always ready and willing to
perform the essential terms of the contract which were to
be performed by him. The Apex Court in the case of
Mehaboob-Ur-Rehman (dead) through legal
representatives vs. Ahsanul Ghani has held at paras-15
and 16 as under:
"15. Though, with the amendment of the Specific Relief
Act, 1963 by Act No. 18 of 2018, the expression "who
fails to aver and prove" is substituted by the expression
"who fails to prove" and the expression " must aver"
(2019) 19 SCC 415
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stands substituted by the expression "must prove" but
then, the position on all the material aspects remains the
same that, specific performance of a contract cannot be
enforced in favour to the person who fails to prove that he
has already performed or has always been ready and
willing to perform the essential terms of the contract
which are to be performed by him, other than the terms
of which, the performance has been prevented or waived
by the other party. As per the law applicable at the
relevant time, it was incumbent for the plaintiff to take
the specific averment to that effect in the plaint. Of
course, it was made clear by this Court in several
decisions, that such requirement of taking the necessary
averment was not a matter of form and no specific
phraseology or language was required to take such a
plea. However, and even when mechanical reproduction
of the words of statue was not insisted upon, the
requirement of such pleading being available in the plaint
was neither waived nor even whittled down. In A.
Kanthamani v. Nasreen Ahmed: (2017) 4 SCC 654, even
while approving the decree for specific performance of the
agreement on facts, this Court pointed out that the
requirement analogous to that contained in Section 16(c)
of the Specific Relief Act, 1963 was read in its forerunner
i.e., the Specific Relief Act, 1877 even without specific
provision to that effect. Having examined the scheme of
the Act and the requirements of CPC, this Court said:
"22. Therefore, the plaint which seeks the relief of
specific performance of the agreement/contract
must contain all requirements of Section 16 (c)
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read with requirements contained in Forms 47 and
48 of Appendix 'A' CPC."
16. Such a requirement, of necessary averment in the
plaint, that he has already performed or has always been
ready and willing to perform the essential terms of the
contract which are to be performed by him being on the
plaintiff, mere want of objection by the defendant in the
written statement is hardly of any effect or consequence.
The essential question to be addressed to by the Court in
such a matter has always been as to whether, by taking
the pleading and the evidence on record as a whole, the
plaintiff has established that he has performed his part of
the contract or has always been ready and willing to do
so. In this regard, suffice it would be to refer to the
principles enunciated by this Court in the case of Umabai
(supra) as under:-
"30. It is now well settled that the conduct of the
parties, with a view to arrive at a finding as to
whether the plaintiff-respondents were all along
and still are ready and willing to perform their
part of contract as is mandatorily required under
Section 16 (c) of the Specific Relief Act must be
determined having regard to the entire attending
circumstances. A bare averment in the plaint or a
statement made in the examination-in- chief
would not suffice. The conduct of the plaintiff-
respondents must be judged having regard to the
entirety of the pleadings as also the evidences
brought on records.
*** *** ***
45. It was for the plaintiff to prove his readiness
and willingness to pay the stipulated amount and
it was not for the appellants to raise such
question."
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The Apex Court in the case of Umabai and Another vs.
Nilkanth Dhondiba Chavan (Dead) by LRs and Another
has held at paras-30 and 31 as under:
"30. It is now well-settled that the conduct of the parties,
with a view to arrive at a finding as to whether the
plaintiff-Respondents were all along and still are ready
and willing to perform their part of contract as is
mandatorily required under Section 16(c) of the Specific
Relief Act must be determined having regard to the entire
attending circumstances. A bare averment in the plaint or
a statement made in the examination-in-chief would not
suffice. The conduct of the plaintiff-Respondents must be
judged having regard to the entirety of the pleadings as
also the evidences brought on records.
31. In terms of Forms 47 and 48 appended to Appendix A
of the Code of Civil Procedure, the plaintiff must plead
that "he has been and still is ready and willing specifically
to perform the agreement on his part of which the
defendant has had notice" or "the plaintiff is still ready
and willing to pay the purchase money of the said
property to the defendant". The offer of the plaintiff in the
instant case is a conditional one and, thus, does not fulfill
the requirements of law."
(2005) 6 SCC 243
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12. It is also necessary that the plaintiff's conduct
in performance of the contract or attempting to fulfill the
same shows an unwavering intention of wanting to
perform. The Apex Court has held that requirement in, of
pleading readiness and willingness, indication in the plaint
has to be that the plaintiff's conduct had been blemishless
throughout entitling him to the specific relief. The Apex
Court in the case of Aniglase Yohannan vs. Ramlatha3 and
others at paras-12 and 13 has held as under:
"12. The basic principle behind Section 16(c) read with
Explanation (ii) is that any person seeking benefit of the
specific performance of contract must manifest that his
conduct has been blemishless throughout entitling him to
the specific relief. The provision imposes a personal bar.
The Court is to grant relief on the basis of the conduct of
the person seeking relief. If the pleadings manifest that
the conduct of the plaintiff entitles him to get the relief on
perusal of the plaint he should not be denied the relief.
13. Section 16(c) of the Act mandates the plaintiff to
aver in the plaint and establish the fact by evidence
aliunde that he has always been ready and willing to
perform his part of the contract. On considering almost an
(2005) 7 SCC 534
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identical fact situation it was held by this Court in Surya
Narain Upadhyaya v. Ram Roop Pandey, AIR 1994 SC 105
that the plaintiff had substantiated his plea."
13. "Readiness" does not imply "willingness" under
Section 16 (c) of the Act and are distinct. "Readiness"
refers to the capacity of the plaintiff to enforce a contract
while "willingness" refers to the conduct of the plaintiff
warranting performance. The Apex Court in the case of P.
Daivasigamani vs. S. Sambandan has held at paras-15
and 16 as under:
"15. Readiness and willingness are not one, but two
separate elements. Readiness means the capacity of the
plaintiff to perform the contract, which would include the
financial position to pay the purchase price. Willingness
refers to the intention of the plaintiff as a purchaser to
perform his part of the contract. Willingness is inferred by
scrutinising the conduct of the plaintiff/purchaser,
including attending circumstances. Continuous readiness
and willingness on the part of the plaintiff/purchaser from
the date the balance sale consideration was payable in
terms of the agreement to sell, till the decision of the suit,
is a condition precedent for grant of relief of specific
performance.
Civil Appeal No.9006/2011 dated 12.10.2022
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16. The expression "readiness and willingness" used in
Section 16 (c) of the said Act, has been interpreted in
catena of decisions by this Court, in the light of facts and
circumstances of the cases under consideration for the
purpose of granting or refusing to grant the relief of
Specific Performance of a contract. The said expression
cannot be interpreted in a straitjacket formula. In a very
apt decision of this Court in case of Syed Dastagir vs. T.R.
Gopalakrishna Setty (1999) 6 SCC 337, a three-Judge
Bench of this Court, construing a plea of "readiness and
willingness to perform" in view of the requirement of
Section 16(c) and its explanation, observed as under:
"9. So the whole gamut of the issue raised is, how
to construe a plea specially with reference to
Section 16(c) and what are the obligations which
the plaintiff has to comply with in reference to his
plea and whether the plea of the plaintiff could not
be construed to conform to the requirement of the
aforesaid section, or does this section require
specific words to be pleaded that he has performed
or has always been ready and is willing to perform
his part of the contract. In construing a plea in any
pleading, courts must keep in mind that a plea is
not an expression of art and science but an
expression through words to place fact and law of
one's case for a relief. Such an expression may be
pointed, precise, sometimes vague but still it could
be gathered what he wants to convey through only
by reading the whole pleading, depending on the
person drafting a plea. In India most of the pleas
are drafted by counsel hence the aforesaid
difference of pleas which inevitably differ from one
to the other. Thus, to gather true spirit behind a
plea it should be read as a whole. This does not
distract one from performing his obligations as
required under a statute. But to test whether he
has performed his obligations, one has to see the
pith and substance of a plea. Where a statute
requires any fact to be pleaded then that has to be
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pleaded maybe in any form. The same plea may
be stated by different persons through different
words; then how could it be constricted to be only
in any particular nomenclature or word. Unless a
statute specifically requires a plea to be in any
particular form, it can be in any form. No specific
phraseology or language is required to take such a
plea. The language in Section 16(c) does not
require any specific phraseology but only that the
plaintiff must aver that he has performed or has
always been and is willing to perform his part of
the contract. So the compliance of "readiness and
willingness" has to be in spirit and substance and
not in letter and form. So to insist for a mechanical
production of the exact words of a statute is to
insist for the form rather than the essence. So the
absence of form cannot dissolve an essence if
already pleaded". "
14. The willingness on part of the plaintiffs is
absent from the date of agreement of sale i.e., in the year
1965 till the filing of the suit. The cause of action pleaded
by the plaintiffs to file the suit for specific performance is
that when the plaintiffs received notice issued by the
Tahasildar to appear in the revenue proceedings and
according to the plaintiffs the defendants refused to
execute the sale deed on the said date. The prescribed
period of limitation for a suit for specific performance is
three years from the date fixed for performance and if no
such date is fixed, when the plaintiff has noticed that
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performance is refused. Plaint averments clearly indicate
that the father of the defendants and the defendants when
approached by the plaintiffs have denied for execution of
the sale deed. The Apex Court in Rathnavati and Another
vs. Kavita Ganashamdas5 has held paras-26 to 30 as
under:
"26. One of the basic requirements for successfully
invoking the plea of Order II Rule 2 CPC is that the
defendant of the second suit must be able to show that
the second suit was also in respect of the same cause of
action as that on which the previous suit was based. As
mentioned supra, since in the case on hand, this basic
requirement in relation to cause of action is not made out,
the defendants (appellants herein) are not entitled to
raise a plea of bar contained in Order II Rule 2 CPC to
successfully non suit the plaintiff from prosecuting her
suit for specific performance of the agreement against the
defendants.
27. Indeed when the cause of action to claim the
respective reliefs were different so also the ingredients for
claiming the reliefs, we fail to appreciate as to how a plea
of Order II Rule 2 CPC could be allowed to be raised by
the defendants and how it was sustainable on such facts.
(2015) 5 SCC 223
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28. We cannot accept the submission of learned senior
counsel for the appellants when she contended that since
both the suits were based on identical pleadings and when
cause of action to sue for relief of specific performance of
agreement was available to the plaintiff prior to filing of
the first suit, the second suit was hit by bar contained in
Order II Rule 2 of CPC.
29. The submission has a fallacy for two basic reasons.
Firstly, as held above, cause of action in two suits being
different, a suit for specific performance could not have
been instituted on the basis of cause of action of the first
suit. Secondly, merely because pleadings of both suits
were similar to some extent did not give any right to the
defendants to raise the plea of bar contained in Order II
Rule 2 of CPC. It is the cause of action which is material
to determine the applicability of bar under Order II Rule 2
and not merely the pleadings. For these reasons, it was
not necessary for plaintiff to obtain any leave from the
court as provided in Order II Rule 2 CPC for filing the
second suit.
30. Since the plea of Order II Rule 2, if upheld, results in
depriving the plaintiff to file the second suit, it is
necessary for the court to carefully examine the entire
factual matrix of both the suits, the cause of action on
which the suits are founded, the reliefs claimed in both
the suits and lastly the legal provisions applicable for
grant of reliefs in both the suits."
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15. The plaintiffs have not shown their willingness
for seeking specific performance for execution of the sale
deed. The delay and laches on part of the plaintiffs in
approaching the Court seeking specific performance, the
courts below have denied the relief and rightly not
exercised the discretion available under Section 20 of the
Act. The courts below have rightly assessed the oral and
documentary evidence and the manner in which the courts
below have given findings, this Court is of the considered
view that the same do not warrant any interference.
16. Learned counsel for the appellants would
contend that the plaintiffs are in possession of the suit
property from the date of agreement of sale i.e., from
1965 and that there was an order of status-quo in favour
of the plaintiffs till pendency of the first appeal, it is
submitted that the possession of the plaintiffs needs to be
protected and the plaintiff should not be dispossessed until
the due process of law.
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17. The courts below arrived at a conclusion that
the execution of the agreement of sale is not proved, the
Trial Court held that the plaintiffs are not in possession of
the suit property. The first appellate Court arrives at a
conclusion that the plaintiffs have proved their possession
of the suit property, however, as the agreement of sale is
not proved, they are not entitled for specific performance
of contract. Though the concurrent findings of the Courts
below does not warrant any interference as there arises no
substantial question of law for consideration in the present
second appeal, since the finding of the first appellate Court
is that the appellants-plaintiffs are in possession of the suit
property, the possession of the plaintiffs needs to be
protected holding that the plaintiffs should not be
disturbed until in due process of law.
18. For the foregoing reasons, this Court pass the
following:
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ORDER
i. The Regular Second Appeal is hereby
dismissed.
ii. The judgment and decree of the Courts below
stands confirmed. However, it is made clear
that the possession of the plaintiffs not to be
disturbed, until in due process of law.
Sd/-
JUDGE
AT/swk
CT: VD
