Karnataka High Court
Smt Kempamma vs Sri. Jagadeesh Choudhari on 1 February, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
REGULAR FIRST APPEAL NO.2173/2006 (SP)
BETWEEN:
SMT. KEMPAMMA,
SINCE DEAD, BY HER LRS.
1. SRI. SHIVANNACHARI,
S/O LATE EASWARACHARI,
AGED 65 YEARS,
R/AT RAYASANDRA VILLAGE,
TUNGANI POST, KASABA HOBLI,
KANAKAPURA TALUK,
RAMANAGARA DISTRICT-562 127.
(AMENDED VIDE ORDER DATED 09.08.2024)
PUTTASWAMACHARI,
SINCE DECEASED BY HIS LRS.
2. SMT. CHANNAJAMMA,
W/O LATE PUTTASWAMACHARI,
AGED 60 YEARS.
3. PUTTATHAYI,
D/O LATE PUTTASWAMACHARI,
AGED 42 YEARS.
4. NETRAVATHI,
D/O LATE PUTTASWAMACHARI,
AGED 40 YEARS.
5. SHIVANNA,
S/O LATE PUTTASWAMACHARI,
AGED 38 YEARS.
2
6. TRIVENI,
D/O LATE PUTTASWAMACHARI,
AGED 35 YEARS.
MUTTURAJU,
SINCE DECEASED BY HIS LRS.
7. SMT. NAGARATHNA,
W/O LATE MUTTURAJU,
AGED 52 YEARS.
8. BHAGYA,
D/O LATE MUTTURAJU,
AGED 40 YEARS.
9. POOJA,
D/O LATE MUTTURAJU,
AGED 38 YEARS.
10. JYOTHI,
D/O LATE MUTTURAJU,
AGED 36 YEARS.
11. ABHISHEK,
S/O LATE MUTTURAJU,
AGED 24 YEARS.
12. HEMANTH KUMAR,
S/O LATE MUTTURAJU,
AGED 21 YEARS.
ALL ARE R/AT RAYASANDRA VILLAGE,
TUNGANI POST, KASABA HOBLI,
KANAKAPURA TALUK,
RAMANAGARA DISTRICT-562 127.
(AMENDED VIDE ORDER DATED 14.10.2024)
... APPELLANTS
(BY SRI. PRAKASH M.H., ADVOCATE FOR
LRS OF DECEASED APPELLANT)
3
AND:
SRI. JAGADEESH CHOUDHARI,
S/O SRI KESHARAMA,
AGED 66 YEARS,
R/AT PROP. RAJASHREE BANKERS,
MHS ROAD, KANAKAPURA,
BANGALORE RURAL DISTRICT-562 127.
... RESPONDENT
(BY SRI. R.B.SADASIVAPPA, ADVOCATE)
THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE JUDGEMENT AND DECREE DATED 17.03.2005
PASSED IN O.S.NO.34/2000 ON THE FILE OF THE CIVIL JUDGE
(SR. DN.) AND JMFC, RAMANAGARAM, DECREEING THE SUIT
FOR SPECIFIC PERFORMANCE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 24.01.2025, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV JUDGMENT
Heard the learned counsel for the appellants and the
learned counsel for the respondent.
2. This appeal is filed under Section 96 of CPC
challenging the judgment and decree dated 17.03.2005
passed in O.S.No.34/2000, on the file of the Civil Judge
(Sr.Dn.) and JMFC, RamanagaraM, granting the relief of
specific performance.
3. The factual matrix of the case of the
plaintiff/respondent before the Trial Court is that the
appellants' mother executed a registered sale deed in respect
of the suit property bearing Sy.No.101 measuring 2 acres
situated at Rayasandra Village, Kanakapura Taluk, in favour of
the plaintiff claiming that she is the owner of the suit property
and she agreed to sell the suit property to the plaintiff for
Rs.1,50,000/- and received advance of Rs.1,25,000/- and
agreed to execute the sale deed within one year by receiving
the remaining balance sale consideration. It is contended by
the plaintiff that even after lapse of stipulated period, the
defendant did not come forward to receive the balance
consideration and to execute the registered sale deed in
favour of the plaintiff by furnishing the documents inspite of
repeated request made by the plaintiff. It is also contended
that panchayat was arranged in the village, bud the defendant
did not participate in the panchayat and hence legal notice
was issued calling upon the defendant to execute the sale
deed and the defendant did not give any reply and hence the
plaintiff filed a suit for the relief of specific performance.
4. In pursuance of the suit summons, the defendant
appeared, but did not file the written statement and did not
participate in the proceedings. The Trial Court formulated the
following points for determination:
1. Whether the defendant agreed to sell the suit
property to the plaintiff as alleged?
2. Whether the plaintiff has shown his readiness
and willingness in performance of his part of
the agreement?
3. What order or decree?
5. The plaintiff in support of his contentions examined
himself as P.W.1 and got marked the documents at Exs.P.1 to
4. The Trial Court having considered the material available on
record, including the evidence of P.W.1 and the documents,
comes to the conclusion that there was an agreement of sale
and the defendant received an amount of Rs.1,25,000/- as
against Rs.1,50,000/- and also delivered the original
document of sale deed and the evidence remained
unchallenged. The Trial Court answered point No.2 in coming
to the conclusion that within the stipulated period the
defendant did not execute the sale deed even though demand
was made to perform her part of the contract orally and also
by issuing legal notice in terms of Ex.P.3. The evidence of
P.W.1 remained unchallenged and no reply was given and no
evidence was adduced contrary to the contention of the
plaintiff and hence the Trial Court comes to the conclusion
that the plaintiff was always ready and willing to perform his
part of the contract and answered point No.3 granting the
relief of temporary injunction, since the defendant has handed
over her title deeds to the plaintiff and the defendant has not
come forward to give any explanation as to why the relief of
specific performance should be refused to the plaintiff and
hence granted the relief decreeing the suit and directed the
plaintiff to deposit the balance sale consideration in the Court
within a month and liberty was also given to get the sale deed
executed.
6. Being aggrieved by the said judgment and decree
of specific performance, the present appeal is filed by the
legal representatives of the defendant Smt.Kempamma.
7. The main contention of the learned counsel for the
appellants urged before this Court is that the alleged
agreement of sale Ex.P.1 has been obtained by playing fraud
on the appellant/defendant. The said fraud has been played
by one Shivanna, who is the eldest son of the appellant in
collusion with the respondent in order to deprive the shares of
the other two sons of the appellant. Even before the Trial
Court also the said Shivanna in collusion with the respondent
obtained the signature of the appellant on the vakalath
without disclosing anything regarding the proceedings and
filed the vakalath on behalf of the appellant in the above suit.
But after filing the vakalath, the said Shivanna has not
contested the suit on behalf of the appellant in collusion with
the respondent. Therefore, the appellant was not aware of
any proceedings and hence could not file the written
statement in the suit. The non-filing of the written statement
is neither intentional nor deliberate, but for the bonafide
reasons stated above. It is contended that the averments
made in the plaint indicate that there are disputed question of
facts involved in the case and the Court below erred in not
considering the fact that there was a condition stipulated in
Ex.P.1 sale deed that the sale deed should be executed within
one year, otherwise the alleged Ex.P.1 will become redundant.
Admittedly, the plaintiff/respondent has not shown his
readiness and willingness to perform his part of agreement
within one year and he has not placed any material on record
to prove the same. It is contended that the appellant has got
two sons apart from Shivanna viz. Muttanna who is residing at
Channarayapatna, Hassan District and Sri Puttaswamy
residing at Malavalli of Mandya District. Therefore, the
question of execution of registered agreement of sale Ex.P.1
does not arise, since there is no legal necessity to alienate the
suit property. It is contended that the Court below ought to
have held that Ex.P.1 is not proved and the reasons assigned
and the conclusion arrived at by the Trial Court is not proper.
Hence, the judgment and decree of the Trial Court is liable to
be set aside.
8. The learned counsel in support of the grounds
which have been urged would contend in his argument that
this appeal is filed by the legal representatives of the
defendant/Smt. Kempamma and time stipulated in Ex.P.1 is
that the sale deed should be executed within one year and the
suit is filed before completion of three years. The learned
counsel contend that there were no averments in the plaint
regarding readiness and willingness of the plaintiff to perform
his part of contract and the plaint lacks from Form 47 of CPC
and for non-compliance of Section 16(c) of the Specific Relief
Act and Form 47 of CPC, not entitled for the relief of specific
performance. The learned counsel contend that the sale
agreement is a registered document and the same was
executed on 10.03.1997 and contend that in paragraph No.4
of the plaint, there is no readiness pleaded in the plaint. The
learned counsel contend that Ex.P.3 copy of the legal notice is
created and receipt of postal acknowledgment is not produced
and in the eye of law, no notice at all. The learned counsel
contend that the impugned order is passed on the order sheet
itself and reasons assigned also are not correct. The learned
counsel contend that the averments are not akin to the
readiness and willingness. The Trial Court also not dealt with
Section 16(c) of the Specific Relief Act while passing the
order.
9. The learned counsel for the appellants in support
of his arguments relied upon the judgment of this Court in the
case of PALTHUR HONNUR SAHEB v. BOPANNA
ANNAPURNAMMA reported in ILR 1985 KAR 3243 and
contend that Section 16(c) of the Specific Relief Act is
mandatory and it is imperative to aver in plaint and prove
performance or readiness and willingness to perform essential
terms of contract. The learned counsel brought to the notice
of this Court paragraph No.21, wherein this Court referred the
judgment of the Apex Court in the case Ouseph Varghese v.
Joseph Aley and others reported in 1969(2) SCC 539 and
extracted the contents with regard to the plaintiff did not
plead either in the plaint or at any subsequent stage that he
was ready and willing to perform the agreement pleaded in
the written statement of the defendant. A suit for specific
performance has to conform to the requirements prescribed in
Forms 47 and 48 of the 1st Schedule in the Civil Procedure
Code. Neither in the plaint nor at any subsequent stage of the
suit the plaintiff has pleaded with regard to the readiness and
willingness and also with regard to Forms 47 and 48.
10. The learned counsel brought to the notice of this
Court the discussion made in paragraph No.23 of the
judgment regarding pleading of ever ready and willing to
perform his part of contract and principle that it is not simply
sufficient to mention in the plaint the various circumstances
showing the readiness and willingness of the plaintiffs to
perform their part of the contract. But they must go further
and allege in the plaint that they were and are ever willing
and ready to perform their part of the contract.
11. The learned counsel also relied upon the judgment
of this Court in the case of SARASWATHI AMMAL v. V.C.
LINGAM reported in ILR 1993 KAR 427 and brought to the
notice of this Court paragraph No.28 that there is no authority
for the proposition that the purchaser's readiness and
willingness has to be inferred by his repeated assertion of
those magic words. It is essentially a question of fact to be
answered from the material on record read with the proved
circumstances of the case. The learned counsel also brought
to the notice of this Court paragraph No.31, wherein
discussion was made that the readiness involves proof of
capacity to perform, which in turn requires proof of his
financial ability at the relevant point of time. The willingness
to perform the contract is not a mere desire; it should be a
genuine willingness, to be proved like any other fact;
circumstances may justify an inference that the assertion of
the plaintiff as to his willingness is a mere verbal assertion
and as a fact, his conduct may disclose that he was really
interested in procrastination, because, delay was to his
advantage; in many cases a person who agreed to purchase a
property of which he is already in possession, may not be
anxious at all to complete the contract, either because, he had
no ready cash with him, or may consider it expedient not to
part with the money, so that he can have the continued
benefit of the money as well as the enjoyment of the
property.
12. The learned counsel also relied upon the judgment
of the Apex Court in the case of SHENBAGAM AND OTHERS
v. K.K. RATHINAVEL reported in AIR 2022 SC 1275 and
brought to the notice of this Court paragraph No.29, wherein
it is discussed that the respondent has failed to provide any
documents or communication which would indicate that he
called upon the appellants to perform their obligations or
discharge the mortgage within the time period stipulated in
the contract. Merely averring that he was waiting with the
balance consideration and believed that the appellants would
clear the encumbrance is insufficient to prove that the
respondent-plaintiff was willing to perform his obligations
under the contract. The learned counsel also relied upon
paragraph No.31, wherein it is discussed with regard to the
'readiness' of the respondent to perform his obligations refers
to whether he was financially capable of paying the balance
consideration. The learned counsel also brought to the notice
of this Court paragraph No.40, wherein discussion was made
regarding the discretion to direct specific performance of an
agreement that too after elapse of a long period of time.
13. The learned counsel also relied upon the judgment
of the Apex Court in the case of J.P. BUILDERS AND
ANOTHER v. A. RAMADAS RAO AND ANOTHER reported in
(2011) 1 SCC 429 and brought to the notice of this Court
paragraph No.27, wherein it is held that it is settled law that
even in the absence of specific plea by the opposite party, it is
the mandate of the statute that the plaintiff has to comply
with Section 16(c) of the Specific Relief Act and when there is
non-compliance with this statutory mandate, the Court is not
bound to grant specific performance and is left with no other
alternative but to dismiss the suit.
14. Per contra, the learned counsel for the respondent
would contend that the suit was filed in the year 2000 and
vakalath was filed immediately and suit was decreed in 2005
and for a period of five years, the appellant did not choose to
file the written statement and contest the matter, but
engaged the counsel. The learned counsel contend that it is
the contention of the appellants that sale agreement is
obtained fraudulently and to prove the said fact, nothing is
placed on record and the fact that sale agreement is
registered is not in dispute. The learned counsel contend that
on the date of execution of the sale agreement, 80% of the
sale consideration was paid i.e., Rs.1,25,000/- as against
Rs.1,50,000/-. The learned counsel contend that when the
suit was decreed, a direction was given to the plaintiff to pay
the balance consideration and accordingly the same was
deposited. The learned counsel contend that when execution
petition was filed, an appeal is filed before this Court and stay
is obtained. The contention that the plaintiff was not ready
and willing to perform his part of contract cannot be accepted.
The learned counsel contend that the son of the defendant is
also a witness to the said sale agreement. The learned
counsel contend that it is the contention of the appellants that
the sale agreement was taken by misrepresentation and
playing fraud, but no action was taken. Both the original
defendant and son signed the agreement. The appellants
have not placed any record to show that by playing fraud the
document was obtained. The Trial Court having considered
the material on record, not committed any error in passing
such a judgment and decree granting the relief of specific
performance. The learned counsel contend that if the
judgment is set aside, it causes hardship to the plaintiff since
almost 2½ decade has been elapsed from the date of
agreement.
15. The learned counsel for the respondent in support
of his argument relied upon the Division Bench judgment of
this Court passed in R.F.A.No.1883/2012 dated
11.12.2020 and brought to the notice of this Court that in
this judgment it is categorically held that opportunity cannot
be given on the whims and fancies of the appellants. The
learned counsel brought to the notice of this Court having
taken note of the material on record by the Division Bench
when similar ground was urged before the Trial Court for an
opportunity to cross-examine the plaintiff was sought and also
observed that right to file an appeal under Section 96(2) of
CPC is a statutory remedy. The right to appeal is not a mere
matter of procedure; but is a substantive right. This Court
even taken note of scope of Order IX Rule 13 of CPC and in
detail discussed the same. This Court also taken note of the
conduct of the defendant in receiving Rs.8,50,000/- towards
the part payment of sale consideration during 2006-07 and
enjoying the same with the order of status-quo over a period
of eight years and now seeking for a remand cannot be
countenanced and the said observation is made in paragraph
No.30. It is further held that it is well settled that the courts
can come to the rescue of the litigants who are serious and
vigilant about their rights. The learned counsel also brought
to the notice of this Court the discussion made in paragraph
No.31 that it is certain that there is steep hike in the value of
immovable property and any direction to refund the amount
paid towards earnest money deposit as part of sale
consideration despite the plaintiffs depositing the balance sale
consideration amount before the Court as far back as in 2012
would cause great hardship and damage to the plaintiffs.
16. Referring this judgment, the learned counsel would
contend that in the case on hand, the defendant appeared
before the Trial Court in 2000 itself, but did not choose to file
the written statement and contest the matter and the suit was
decreed in 2005 and the plaintiff also complied with the order
of the Trial Court by depositing the balance consideration of
Rs.25,000/-.
17. The learned counsel also relied upon the order of
this Court passed in R.S.A.No.100508/2019 dated
06.12.2023, wherein the Co-ordinate Bench of this Court
discussed in detail about Section 96(2) of CPC as well as
Order IX Rule 13 of CPC and this Court relied upon the
judgment of the Apex Court in the case of Bhanu Kumar
Jain v. Arhana Kumar and Another reported in (2005) 1
SCC 787 and extracted paragraph Nos.37 and 38 of the said
judgment. The learned counsel also brought to the notice of
this Court paragraph No.17, wherein an observation is made
that defendant No.1 has made no sufficient cause for his non-
appearance and the very ground urged in the appeal under
Section 96(2) of CPC where the correctness of the ex-parte
decree is assailed, is unsustainable.
18. The learned counsel referring this judgment would
contend that the agreement was taken place in 1997 and the
suit was filed in 2000 and for a period of five years, the
appellant did not avail the opportunity and now they cannot
contend that the judgment and decree passed by the Trial
Court is erroneous. The learned counsel contend that with
regard to the readiness and willingness is concerned, it is
specifically pleaded in paragraph No.4 of the plaint as well as
in the notice caused to the defendant also it is specifically
stated that repeated request was made, but the defendant did
not heed to the request. Before issuing the legal notice, a
panchayat was convened, but the defendant not choose to
attend the panchayat and without any other alternative, the
plaintiff caused the legal notice and inspite of legal notice was
served, no reply was given and also not contested the matter
before the Trial Court and hence the relief cannot be granted.
19. Having heard the learned counsel for the
appellants and the learned counsel for the respondent and
also considering the material available on record and the
principles laid down in the judgments referred supra, the
points that arise for the consideration of this Court are:
(i) Whether the Trial Court committed an error in
decreeing the suit even though there is no any
specific pleading of readiness and willingness in
the plaint?
(ii) Whether the Trial Court committed an error in
decreeing the suit for specific performance and
whether it requires interference of this Court?
(iii) What order?
Point No.(i):
20. Having heard the learned counsel for the
respective parties, it is not in dispute that the sale agreement
is registered and also time is stipulated for a period of one
year. The main contention of the learned counsel for the
appellants is that there is no compliance of Section 16(c) of
the Specific Relief Act and Forms 47 and 48 of I Schedule of
CPC. Having taken note of the said contention, the Court has
to take note of the pleading of the plaintiff. In paragraph
No.2 of the plaint, with regard to the property and how the
defendant has acquired the property has been pleaded. In
paragraph No.3, it is pleaded with regard to the reason for
executing the sale agreement i.e., to repay the debts made at
the time of purchase of the suit schedule property and for her
domestic expenses offered to sell the suit schedule property.
It is also pleaded with regard to the very execution of the
registered sale agreement and receipt of Rs.1,25,000/- as
against Rs.1,50,000/- and remaining Rs.25,000/- is payable
at the time of registration. It is important to note that with
regard to readiness and willingness is concerned, in paragraph
No.4 it is stated that even after lapse of the stipulated period,
the defendant did not come forward to receive the balance
consideration and furnish the relevant documents as
undertaken and did not come forward to execute the
registered sale deed. It is also specifically pleaded that the
plaintiff himself approached the defendant on several
occasions and requested the defendant to receive the balance
consideration and to execute the sale deed. If is further
pleaded that instead of complying the terms of the
agreement, the defendant gave deaf ear to the request of the
plaintiff and hence the plaintiff convened a panchayat in the
village and the defendant instead of participating in the
pachayat, evaded to appear before the panchayatdars and
without any other alternative, the plaintiff issued a legal
notice dated 18.02.2000 through RPAD calling upon the
defendant to receive the balance consideration and to execute
the sale deed. The defendant has not taken any pain even to
reply to the said notice. The office copy of the legal notice and
postal receipt and postal acknowledgment are also produced.
21. Having taken note of the pleading in paragraph
No.4 of the plaint is concerned, specific averments are made
with regard to readiness and willingness and a request was
made as well as panchayat was arranged and issuance of legal
notice. The learned counsel for the appellants relied upon the
judgment of this Court in the case of Palthur Honnur Saheb
(supra) and brought to the notice of this Court paragraph
No.21, wherein this Court discussed with regard to Section
16(c) of the Specific Relief Act is mandatory and it is
imperative to aver in plaint and prove performance or
readiness and willingness to perform essential terms of
contract and also brought to the notice of this Court that he
must go further and plead that he has applied to the
defendant specifically to perform the agreement pleaded by
him but the defendant has not done so. He must further
plead that he has been and is still ready and willing to
specifically perform his part of the agreement and also
discussed with regard to Forms 47 and 48 of CPC. There is no
dispute with regard to Section 16(c) of the Specific Relief Act
is concerned that there must be pleading of readiness and
willingness. No doubt, in the plaint the words 'readiness' and
'willingness' has not been pleaded, but pleaded with regard to
the demand made and panchayat was convened and the
defendant did not participate in the panchayat and even
issued legal notice. The Court has to take note of the entire
pleading of paragraph No.4 of the plaint and specifically
pleaded with regard to readiness and willingness. Even in the
absence of specific words 'readiness' and 'willingness', the
Court has to take note of in toto the averments made in the
plaint which discloses readiness and willingness.
22. The learned counsel for the appellants also relied
upon the judgment of this Court in the case of Saraswathi
Ammal (supra) and brought to the notice of this Court
paragraph No.31, wherein it is discussed with regard to the
readiness involves proof of capacity to perform, which in turn
requires proof of his financial ability at the relevant point of
time. This judgment will not come to the aid of the appellants
since already 80% of the sale consideration was paid. Out of
Rs.1,50,000/- an amount of Rs.1,25,000/- was paid and only
remaining balance is Rs.25,000/- and hence the question of
capacity does not arise.
23. The learned counsel for the appellants also relied
upon the judgment of the Apex Court in the case of
Shenbagam (supra) and brought to the notice of this Court
paragraph Nos.29, 31 and 40, wherein discussion is made
with regard to readiness of the respondent to perform his
obligations refers to whether he was financially capable of
paying the balance consideration which is discussed in
paragraph No.31. I have already pointed out that his
readiness does not arise, since the respondent has already
made the substantial payment and no doubt in paragraph
No.40 discussed with regard to discretion is concerned. In the
case on hand, the defendant inspite of appeared before the
Trial Court, for a period of 5 years did not dispute the
agreement and also not filed the written statement.
24. The learned counsel also relied upon the judgment
of the Apex Court in the case of J.P.Builders (supra) and
brought to the notice of this Court the discussions made in
paragraph No.27 that it is settled law that even in the absence
of specific pleas by the opposite party, it is the mandate of the
statute that the plaintiff has to comply with Section 16(c) of
the Specific Relief Act and when there is non-compliance with
this statutory mandate, the Court is not bound to grant
specific performance and is left with no other alternative but
to dismiss the suit. I have already pointed out that in
paragraph No.4 of the plaint, entire pleading is with regard to
the readiness and willingness to have the sale deed and
demand was made orally and also in writing and even
panchayat was convened and the defendant did not choose to
appear before the panchayatdars and without any other
alternative, filed the suit. I have already pointed out that the
Court has to take note of readiness and willingness pleaded in
the plaint in paragraph No.4 and only the words of 'readiness'
and 'willingness' specifically is missing and missing of the
same cannot be a ground to dismiss the suit for specific
performance. The averments made in paragraph No.4 of the
plaint is in consonance with Section 16(c) of the Specific Relief
Act as well as Forms 47 and 48 of CPC. Hence, the very
contention of the learned counsel for the appellants that there
was no pleading of readiness and willingness cannot be
accepted. The Trial Court also raised the point for
consideration with regard to readiness and willingness framing
point No.2 and the same is answered in the affirmative taking
note of the averments made in the plaint as well as the
evidence of the plaintiff and the defendant never made any
attempt to dispute the case of the plaintiff regarding sale
transaction as well as capacity and not contested the matter
regarding readiness and willingness and slept over for a
period of five years from the date of service of suit summons
till the date of judgment .
Point No.(ii):
25. Now the question before this Court is with regard
to granting the relief of specific performance. There is no
dispute with regard to the fact that the sale agreement was
executed and registered and time is stipulated for a period of
one year and also pleading that oral request was made
repeatedly, but his effort became vain and hence convened a
panchayat and in the panchayat also no response and hence
he issued the legal notice. The Court has to take note of the
substantial payment of Rs.1,25,000/- as against
Rs.1,50,000/- and though it is pleaded that sale agreement is
obtained fraudulently, no material is placed on record by the
defendant and also did not file any written statement or
adduce any evidence. The Court has to take note of the fact
that in the month of July 2000 itself, the defendant engaged
the counsel, but did not choose to file the written statement
and even did not choose to cross-examine the witness and
sufficient opportunity was given and for a period of five years
no steps was taken by the defendant either to deny the
agreement of sale or to rebut the evidence of the plaintiff and
the evidence is unchallenged. The period taken for disposal of
the suit is five years and ultimately the suit was decreed in
2005. In the judgments which have been relied upon by the
learned counsel for the respondent in detail discussed with
regard to Order IX Rule 13 and scope of Section 96 of CPC
and it is also settled law that the Court cannot come to the
rescue of the defendant on whims and fancies and no
opportunity was availed by the defendant for a period of five
years and this appeal is filed when the notice was issued in
the execution petition. In the absence of any sufficient cause
for non-appearance and non-contesting the matter, the
question of interfering also does not arise.
26. It is important to note that one of the sons of the
defendant is also a party to the sale agreement and though it
is contended that he colluded with the plaintiff, in order to
substantiate the same, nothing is placed on record. The fact
that one of the son is a witness to the sale agreement is not in
dispute. The fact that the property was purchased by the
original defendant in the year 1978 is also not in dispute. It is
important to note that the original sale deed is handed over at
the time of executing the sale agreement to the plaintiff and
the same is also marked as Ex.P.2 before the Trial Court.
Hence, it is clear that at the time of execution of the sale
agreement, original document of sale deed is handed over and
the sale deed also came into existence in the year 1978 and
the reason assigned in the sale agreement is that the property
is the self-acquired property of the vendor of the plaintiff and
it is specifically mentioned that in order to clear the loan and
to meet the domestic expenses, she came forward to execute
the sale deed and the same is also pleaded in the plaint and
also with regard to readiness and willingness is also pleaded in
the plaint as well as in the legal notice Ex.P.3. When such
being the material on record, I do not find any error
committed by the Trial Court in granting the relief of specific
performance and though the judgment was delivered in the
order sheet, the point for consideration was answered
independently by the Trial Court and hence there are no
grounds to interfere with the judgment and decree of the Trial
Court. Hence, I answer both the points for consideration in
the negative.
27. In view of the discussions made above, I pass the
following:
ORDER
(i) The regular first appeal is dismissed.
(ii) The judgment and decree of the Trial Court is
confirmed.
Sd/-
(H.P. SANDESH)
JUDGE
MD
