1. Heard the learned counsel for the appellant and
the learned counsel for the respondents. This second appeal
2. The factual matrix of case of the
title to the schedule property under a family partition. The
required survey sketch sale deed. It is contended that
the contract. The defendant also agreed to receive lessor
price if it is found that any lessor area after the survey. The
signed by the defendant on 05.10.2009. But, the defendant
receive the balance amount. Inspite of service of notice, he
for the relief of specific performance. In response to the suit
3. The Trial Court having considered the pleadings
1) Whether the plaintiff proves that, on
07.08.2009, the defendant has executed a
registered agreement of sale in respect of
the suit schedule property by receiving part
sale consideration as averred in para 4 of
the plaint?
2) Whether the plaintiff proves that, he was
and is always ready and willing to perform
his part of contract?
3) Whether the defendant proves that, he had
borrowed Rs.25,000/- from the plaintiff and
for security purpose, the plaintiff has
obtained signed blank stamp papers from
him as averred in para 10 of the written
statement?
4) Whether the defendant further proves that,
the plaintiff has misused the signed blank
stamp papers and has created the alleged
agreement for sale as averred in the
written statement?
5) Whether the plaintiff is entitled for the
discretionary relief of specific performance
of contract?
6) What order or decree?
4. The plaintiff in order to prove his case, got
examined himself P.W.1 and got marked 6 documents as
Ex.P.1 to Ex.P.6. On the other hand, defendant got himself
examined D.W.1 and produced 3 documents which are
marked as Ex.D.1 to Ex.D.3. The Trial Court having
considered both oral and documentary evidence, comes to
the conclusion that there is a sale agreement and the very
contention of the defendant that he had received only
Rs.25,000/- was not proved and also not examined any of
the witnesses and also comes to the conclusion that the
plaintiff was always ready and willing to perform his part of
contract and granted the relief for specific performance by
answering Issue No.5 as affirmative and granted the relief
as sought.
5. Being aggrieved by the said judgment of specific
performance, R.A.No.25/2020 is filed before the Appellate
Court and Appellate Court having considered the grounds
urged in the appeal memo, formulated the following points
for consideration:
1) Whether the trial court is justified in coming
to the conclusion that the plaintiff
successfully established execution of suit
agreement?
2) Whether the trial court is justified in holding
that the plaintiff is ever ready and willing to
perform his part of contract?
3) Whether the trial court is justified in
decreeing the suit for specific performance?
4) Whether the Judgment and decree of the
trial court needs interference by this court?
5) What order?
6. Having re-assessed both oral and documentary
evidence available on record, answered the point Nos.1 to 3
as affirmative and comes to the conclusion that it doesn't
requires any interference and confirmed the judgment of
the Trial Court.
7. Being aggrieved by the concurrent finding, the
present R.S.A is filed before this Court. This Court having
considered the grounds urged in the appeal memo,
admitted the second appeal and framed the following
substantive question of law:
1) Whether the defendant proves that the
first Appellate Court has committed an
error in confirming the judgment without
re-appreciating the evidence placed on
record i.e., evidence of DW.1?
2) Whether the defendant proves that the
judgment and decree passed by the first
Appellate Court is not in conformity under
Order 41 Rule 31 of CPC?
8. The counsel appearing for the
appellant/defendant would vehemently contend that that
the land allegedly agreed to sell the property to an extent
of 2 acres and sale consideration is fixed as Rs.1,40,000/-
and the alleged agreement of sale is dated 07.08.2009 and
earnest money of Rs.50,000/- taken specific defence that it
was only a hand loan transaction and he had taken only
Rs.25,000/- and also contend that though he relies upon
document Ex.P.4 and the said document is created
document and the signature available in Ex.P.4 not belongs
to the defendant and also contend that Court can compare
the signature.
9. The counsel also would vehemently contend that
in terms of the said argument, sale deed ought to have
been executed after obtaining the durasth sketch. The
counsel would submits that notice was issued after 3 years.
The counsel would contend that the agreement is concocted
and the stamp paper was used for agreement is 1 year 7
months old and also the stamp paper purchased at
Tarikere. The counsel would vehemently contend that the
document Ex.P.4 clearly discloses that signature available
on the document is a forged signature on the application.
The counsel would contend that it is the specific case that
the defendant got the property through partition and
defendant not having exclusive right to execute the sale
agreement. The counsel would vehemently contend that
though the Trial Court assigned the reasons for granting the
relief of specific performance and the same is not
considered in a proper perspective. The counsel also would
vehemently contend that the First Appellate Court not
discussed the evidence available on record when the First
Appellate Court ought to have examined both oral and
documentary evidence as well as factual aspects and
question of law and the same is not done.
10. The counsel would contend that the Apex Court
in the judgment reported in (2018) 1 Supreme Court
Cases 604 in case of C.Venkata Swamy V/s
H.N.Shivanna(Dead) by Legal representative and
another held while invoking Order 41 Rule 31 it is the duty
of the First Appellate Court to adopt proper mode for
disposal of the appeal and it is settled principle of law that a
right to file first appeal against decree under Section 96 of
the Civil Procedure Code is a valuable legal right of
litigation, jurisdiction of First Appellate Court while hearing
first appeal is very wide like that of Trial Court and it is
open to appellant to attack all findings of fact or/and of law
in first appeal and to appreciate entire evidence and arrive
at its own independent conclusion. Similarly, powers of First
Appellate Court while deciding first appeal are indeed well
defined by various judicial pronouncements of Supreme
Court and are, therefore, no more res integra.
11. The counsel would vehemently contend that First
Appellate Court committed an error and it is an admitted
fact that durasth work was not done and also no cause of
action to file a suit and in the absence of any durasth work,
question of filing the suit doesn't arise. The counsel would
vehemently contend that the Appellate Court committed an
error in appreciation of evidence.
12. The counsel in support of his arguments, he
relied upon the judgment reported in 2009 SCC Online
KAR 616 in case of Susheelamma and Ors V/s and
brought to notice of this Court the discussion made in the
judgment in paragraph No.21. If the plaintiff has
approached the Court for grant of the specific performance,
he has to approach the Court with clean hands then only he
is entitled for the relief of specific performance and also
held that when the plaintiff has not approached the Court
with clean hands and has meddled with the document and
also if it comes to the Court that documents are created
and also though he contend that he was ready and willing
to perform part of the contract, Court has to take note of
conduct of the parties also and brought to notice of
discussion made in paragraph No.22 with regard to the
ready and willingness and so also brought to notice of this
Court when the defence was taken that document was
obtained as a security and the same is discussed in the
paragraph No.23 and Court has to note of the conduct of
the plaintiff as he has not approached the Court with clean
hands.
13. The counsel in his argument would vehemently
contend that with regard to ready and willingness also not
properly appreciated the material on record though he
claims that Ex.P.4 was given to Tahasildar in the year 2009
itself for getting the land surveyed by obtaining the
signature of the defendant, but nothing is placed on record
with regard to the ready and willingness is concerned.
14. The counsel also brought to notice of this Court
the judgment reported in 2022 LiveLaw (SC) 588 in case
of U.N.Krishnamurthy (Since deceased) thr. Lrs V/s
A.M.Krishnamurthy and brought to notice of this Court
paragraph Nos.34 and 35 wherein discussion was made
there is a distinction between readiness and willingness to
perform the contract and both ingredients are necessary for
the relief of specific performance and readiness is capacity
to perform the contract which would include his financial
position, willingness relates to the conduct of the plaintiff
and also in paragraph No.35 it is held that First Appellate
Court is duty bound to examine whether there was
continuous readiness and willingness on the part of the
plaintiff to perform the contract and the same was
discussed in the above read paragraphs in the judgment of
K.S.Vidyanandam V/s Vairavan reported in (1997) 3
SCC 1, His Holiness Acharya Swami Ganesh Dassji
V/s Sita Ram Thapar, Kalawati V/s Rakesh Kumar and
Balraj Taneja V/s Sunil Madan and H.P.Pyarenjan V/s
Dasappa.
15. The counsel also brought to notice of this Court
the discussion made in paragraph No.18 regarding it is
required to comply with the requirements of Order 41 Rule
31 of CPC and non-observance of this Court requirement
leads to an infirmity in the judgment of the First Appellate
Court. The counsel referring this discussion would contend
that First Appellate Court not discussed in detail. The
counsel also brought to notice of this Court paragraph
No.46 wherein discussion was made with regard to settled
law that for relief of specific performance, plaintiff has to
prove that all along and till the final decision of the suit, he
was ready and willing to perform his part of contract.
16. The counsel would vehemently contend that the
Trial Court as well as the First Appellate Court not consider
the evidence of the defendant and not discussed anything
and that too particularly Appellate Court did not discuss
anything about the evidence of D.W.1 and hence it requires
interference and this Court has to answer substantive
question of law as affirmative.
17. Per Contra, the counsel appearing for the
respondents would vehemently contend that the Trial Court
in detail had discussed case of the plaintiff and also the
defendant and applied its judicious mind and passed the
order. The counsel also brought to notice of this Court
P.W.1 is principal and not an ordinary man and had the
knowledge and categorically admits that while signing the
document, he will go through the document and sign the
same. Though contend that Ex.P.4 signature is not belongs
to him, but not sent the said document to hand writing
expert since it is contended that the same is forged one.
The counsel would vehemently contend that the Trial Court
in detail discussed in paragraph Nos.16, 18, 21 and 23 with
regard to limitation also.
18. The counsel would vehemently contend that
Appellate Court did not consider the evidence and also not
discussed anything and passed the order. The counsel in his
argument would contend that no need to discuss extracting
the evidence of the parties in the appeal, but the Court has
to refer the same while passing the order.
19. The counsel in support of his argument, he relied
upon the judgment reported in AIR 1967 Supreme Court
1124 in case of Girijanandini Devi and others V/s
Bijendra Narain Choudary and Apex Court in paragraph
No.12 held that when the Appellate Court agrees with view
of Trial Court on evidence, it need not restate the effect of
evidence or reiterate the reasons given by Trial Court. The
expression of general argument with reasons given by
Court decision of which is under appeal would ordinarily
suffice. But, only it requires application of judicious mind
while appreciating both oral and documentary evidence.
The counsel appearing for the respondent would contend
that the said principle is also not disputed by the counsel
appearing for the appellant and need not necessarily extract
the evidence in detail.
20. Having heard the appellant's counsel and also
the counsel appearing for the respondents and also
considering the substantive question of law framed by this
Court, this Court has to re-analyze the material available on
record. This Court while admitting the second appeal,
framed the substantive question of law as whether the
defendant proves that First Appellate Court has committed
an error in confirming the judgment without re-appreciating
the evidence placed on record that is evidence of D.W.1 and
also judgment and decree passed by the First Appellate
Court is not in conformity under Order 41 Rule 31 of CPC
and these two substantive questions of law were taken
together for consideration since both are inter connected
with regard to exercising powers by the Appellate Court as
envisaged under Order 41 Rule 31 of CPC as well as re-
appreciating the evidence on record.
21. Having considered the grounds which have been
urged by both the counsels and also considering the
material available on record, this Court has to examine
whether the First Appellate Court committed an error in
appreciating the evidence. It is the case of plaintiff that the
defendant was in need of money in order to meet family
necessity, he had executed agreement of sale as per
Ex.P.1. It has to be noted that the sale agreement came
into existence on 07.08.2009 and also dispute with regard
to the signatures available on the document, though it is
contended by the defendant that he did not execute the
sale agreement. But, his contention is that on the blank
stamp paper, the plaintiff took the signature.
22. It is important to note that the specific
contention of the defendant that he was in need of money
he borrowed an amount of Rs.25,000/- in the month of
January-2008. Having taken note of pleading of the parties,
it is the case of the plaintiff that defendant agreed to sell
the property on 07.08.2009 and the evidence of P.W.1 in
the cross-examination is clear that he was having
acquaintance with defendant from 7 to 8 years and also his
case is that agreement came into existence in the house of
the defendant and talks were held in his house and on very
same day, discussion was made and at the time of the
agreement, one Somanna was present and the said
Somanna was not examined before the Court and ought to
have examined the witness with regard to whether it was a
loan transaction or sale transaction. But, Trial Court comes
to the conclusion that defendant did not examine any
witnesses in respect of whether it was a loan transaction
and fails to take note of the fact that burden is on the
plaintiff to prove that it was a sale transaction and after he
proves the same as sale transaction, then burden shifts on
the defendant. But, an observation is made that defendant
ought to have examined the witness and none of the
witnesses have been examined. The very approach of the
Trial Court is erroneous in coming to such a conclusion.
23. It is also important to note that when the said
talks were held in the house of defendant at Shivamogga on
the very same day, a stamp paper ought to have been
purchased at Shivamogga but, the same was purchased at
Tarikere and also on perusal of Ex.P.1, it is very clear that
the stamp paper dated 18.01.2008, if transaction was taken
place on Shivamogga on the very same day that is on
07.08.2009, what made the plaintiff to make use of the
stamp paper dated 18.01.2008 and the same was
purchased at Tarikere and the same has not been
considered by the Trial Court as well as the First Appellate
Court.
24. It is also important to note that in the cross-
examination, specific question was put to the plaintiff that
he does money transaction. But, the plaintiff did not deny
the same. But he admits that he does the same for small
business of money lending. It is the specific case of the
defendant that he does the money lending and hence he
borrowed an amount of Rs.25,000/-. It is also important to
note that when this admission was given by the
defendant/plaintiff both Courts lost sight of discussing the
same regarding money transaction is concerned. It is also
the specific case of the defendant that he was in need of
money in the month of January and he had approached the
plaintiff and the stamp paper was purchased in the month
of January 2008 which supports the case of the defendant
and specific defence was also taken that he borrowed the
money in the month of January. No doubt the counsel
appearing for the respondent brought to notice of this Court
defendant is principal and also it is his case that signatures
were taken on the blank stamp paper and Court cannot
discard the evidence of defendant invariably by borrowing
the money, they used to obtain the signature on the blank
paper and at the same time, Court has to take note of there
was no any cause of action to file the suit as contented by
the appellant's counsel. Having considered the Ex.P.1, it is
very clear that one month time was fixed after obtaining
the Durasth work i.e., survey sketch. But, admittedly P.W.1
categorically says that he did not obtain any durasth work.
But, he contend that he only approached the Tahasildar
after getting the signature of the defendant on 05.10.2009
and till filing of the suit that is 2012, durasth work was not
done, almost for a period of 3 years and hence it is very
clear in view of the clause mentioned in the agreement,
filing of suit for the relief of the specific performance only
starts after obtaining the survey sketch and admittedly no
such survey sketch was obtained.
25. It is important to note that in paragraph No.7 of
the plaint, the counsel appearing for the appellant brought
to notice of this Court that the plaintiff with all intention of
buying the schedule property made arrangements for
getting property measured by spending huge sum of money
and he made preparation of document for measurement but
when such averment is made, but not obtained survey
sketch, but only reason is given that defendant is making
hurried attempts to get the property surveyed that is after
3 years of allegedly obtained the document on 05.10.2009
and having considered the signature available on Ex.P.1 as
well as the acknowledgments available before the Court on
Ex.P.5 and Ex.P.6 and also the signature available on Ex.P.4
and Ex.P.4 signature not appears as in Ex.P.1(b) and also
as available in Ex.P.5 and Ex.P.6 and those signatures are
also different and all these materials were not considered
by the Trial Court as well as the First Appellate Court and
ought to have invoked Section 73 of Evidence Act. No doubt
the Trial Court discussed with regard to the ready and
willingness is concerned. But, when the document was
obtained in the year 2009 itself for getting surveyed the
land, till 2012 not obtained except making the payment of
50,000/-, not made any additional payment from 2009 to
2012 and also the evidence of D.W.1 is very clear that he
had approached the plaintiff for an amount of Rs.25,000/-,
but his contention cannot be accepted, once he contended
that document is concocted, he admitted the signature,
Ex.P.1(a) and Ex.P.1(b), but it is important to note that he
has not taken any action for having obtained the signature
on the blank paper, but the fact is that an amount of
Rs.50,000/- was paid under document Ex.P.1 and though
he contend that he made the payment of Rs.25,000/- in the
month of December itself no document is placed on the
record for having repaid the amount.
26. Now, the question remains before this Court
whether principles laid down in the judgments referred
supra, no dispute with regard to the principles laid down in
the judgments which have been referred by the appellant's
counsel and judgment of Apex Court reported in (2018) 1
Supreme Court Cases 604 aptly applicable to the case on
hand. It is the duty of the First Appellate Court to re-
appreciate the material available on record like the original
Court and also make independent assessment and the same
is not done. The Appellate Court ought to have considered
all the materials which have been considered by this Court
while exercising the Order 41 Rule 31 of CPC. It is also
important to note that in judgment 2022, the Apex Court
discussed with regard to the granting of relief of specific
performance and discussed with regard to the scope of
appeal in paragraph Nos.34 and 35 of the judgment in
paragraph No.12 while discussing the case laws on the
subject matter referring the judgments of the Apex Court
and the same is applicable with regard to the exercising of
powers of the Appellate Court.
27. The counsel also relied upon the judgment of
this Court referred Supra in a case of Susheelamma case
wherein this Court dealt with issue in paragraph Nos.21, 22
and 23 for approaching the Court with clean hands and
readiness and willingness and also when the defence was
taken as security document, the same is also applicable to
the case on hand having considered the admission on the
part of P.W.1 as well as the document or stamp paper used
1 year 7 months old document. If that sale transaction
taken place on the very same day in the house of the
defendant as admitted, the same goes against the
defendant.
28. No doubt counsel appearing for the respondents
relied upon the judgment reported in AIR 1967 Supreme
Court 1124 and brought to notice of this Court discussion
made in paragraph No.12 and scope of the Appellate Court
is also discussed, need not necessarily to restate the effect
of evidence or re-iterate the reasons given by Trial Court
and expression of general agreement with reasons given by
Court decision of which is under appeal would ordinarily
suffice and no doubt Appellate Court discussed the same
but not extracted the evidence, but ought to have been
exercised the power as a original Court and the same is
settled law and the same is being a statutory appeal and
both question of fact and question of law should be
considered by the Appellate court and the same has not
been done. This Court taken note of admission as well as
the material available on record. The defendants took the
contention that it is a money transaction but, though he
contend that he repaid the amount in december 2008 and
not substantiated the same and hence, the Defendant is
liable to repay the amount which he had taken though he
contend that he had taken Rs.25,000/- but to substantiate
the same, none of the witnesses have been examined and
the same is not proved. Hence, he is liable to return the
amount. No doubt this Court need not go into the same in a
second appeal. But, when there is a factual error and error
on law and material placed on record was not considered in
a proper perspective by both the Trial Court and the
Appellate Court, this Court can consider the same and the
substantive question of law framed by this Court whether
the Appellate Court has committed an error in confirming
the judgment without re-appreciating the evidence placed
on record i.e., evidence of D.W.1 as well as the evidence of
P.W.1 and relevant admissions were not taken note of by
both the Courts and Appellate Court also committed an
error in not exercising the powers conferred under Order 41
Rule 31 of CPC. Hence, I answer both the substantive
question of law as affirmative that Appellate Court
committed an error in exercising power under Order 41
Rule 31 of CPC as well as considering the evidence available
on record.
29. In view of the discussions made above, I pass
the following:
ORDER
i) The Second Appeal is allowed.
ii) The impugned judgment of the Trial Court and
Appellate Court is set-aside.
iii) The plaintiff is not entitled for the relief of
specific performance. However, the
appellant/defendant is directed to refund the
amount of Rs.50,000/- with interest of 12%
from the date of sale agreement that is
07.08.2009.
Sd/-
(H.P. SANDESH)
JUDGE
RHS
