Kerala High Court
Balakrishna Menon (Died) vs Gopala Menon (Died) on 28 June, 2024
"C.R"
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 28TH DAY OF JUNE 2024 / 7TH ASHADHA, 1946
AS NO. 919 OF 1996
AGAINST THE ORDER/JUDGMENT DATED 31.10.1992 IN OS NO.193 OF
1988 OF ADDL. SUB COURT, IRINJALAKUDA
APPELLANT/PLAINTIFF:
*1 BALAKRISHNA MENON (DIED)
S/O.PYNKIL MADHAVI AMMA, RESIDING AT KUMARAVILASAM,
PANANGAD DESOM, SREE NARAYANAPURAM VILLAGE,
KODUNGALLUR TALUK.
ADDITIONAL A2 TO A4 IMPLEADED
*ADDL.A2 A.SURESHKUMAR, AGED 38 YEARS
S/O.LATE BALAKRISHNA MENON, RESIDING AT KUMARA
VILASAM, PANANGAD DESOM, SREENARAYANAPURAM VILLAGE,
KODUNGALLUR TALUK.
*ADDL.A3 A.SUDHEERKUMAR, S/O. -DO- -DO-
*ADDL.A4 A.BHANUMATHY AMMA, W/O. -DO- -DO-
*LEGAL HEIRS OF DECEASED IST APPELLANT ARE IMPLEADED AS
ADDITIONAL APPELLANTS 2 TO 4 VIDE ORDER DATED 28.11.16 IN IA
811/10.
BY ADVS. G.SREEKUMAR (CHELUR);
PREETHY KARUNAKARAN;
RAVI PARIYARATH
RESPONDENTS/DEFENDANTS:
1 GOPALA MENON (DIED)
RETIRED ENGINEER, S/O. KIZHAKOOTT LAKSHMIKUTTY AMMA,
KOTTAYIL HOUSE, KAKKA THURATHI ROAD, IRINJALAKUDA -
LRS IMPLEADED- ADDL.R10 TO R12 & ADDL.R18 TO R21.
2 KOCHUGOVINDA MENON (DIED)
RETIRED ENGINEER,S/O.KOLATH NANIKUTTY AMMA, RESIDING
AT THOTTIPPAL VILLAGE, DESOM, MUKUNDAPURAM TALUK.
LRS IMPLEADED- ADDL.R14 TO R16
3 KUTTAN, BUSINESSMAN, S/O.ARAYAMPARAMBIL
BALAKRISHNAN, ALA DESOM, SREE NARAYANAPURAM VILLAGE,
KODUNGALLUR TALUK.
AS 919/96
2
4 RAJAN, AGRICULTURIST, S/O.PANANGAYIL KUMARAN, ALA
DESOM SREENARAYANAPURAM VILLAGE, KODUNGALLUR TALUK.
5 MURALEEDHARAN, AGRICULTURIST, S/O.KARIPADATH
PAYANIYIL RAGHAVAN, ENGANDIYOOR AMSOM DESOM,
CHAVAKKAD TALUK.
6 JANAKY
W/O. VALLIVATTAM VELAYUDHAN, ALA DESOM, SREE
NARAYANAPURAM VILLAGE, KODUNGALLUR TALUK.
7 PRABHAKARAN
BUSINESSMAN, S/O. PUTHEZHATHU VELANDI, ALA DESOM,
SREE NARAYANAPURAM VILLAGE, KODUNGALLUR TALUK.
**ADDL.R8 K.V.SIVAKUMAR, AGED 38 YEARS
S/O.K.G.VASUDEVAN, BUSINESS, RESIDING AT
GEETHALAYAM, KOTHAPARAMBA P.O., THRISSUR DISTRICT.
**ADDL.R9 P.R.SURESH
S/O. LATE P.K. RAMAKRISHNAN, BUSINESS,
POVATHUKADAVIL HOUSE, P.O. VALLIVATTOM (VIA)
KONATHEKUNNU, THRISSUR DISTRICT.
***ADDL. MRS.BHARATHIKUTTY AMMA
R10 W/O.GOPALA MENON, KOTTAYIL HOUSE, KAKKATHURATHI
ROAD, IRINJALAKKUDA.
***ADDL. SRI.HARINATH
R11 S/O. LATE GOPALA MENON, KOTTAYIL HOUSE,
KAKKATHURATHI ROAD, IRINJALAKKUDA.
***ADDL. SRI.JAYANATH
R12 S/O.LATE GOPALA MENON, KOTTAYIL HOUSE, KAKKATHURATHI
ROAD, IRINJALAKKUDA.
****ADDL. SMT.AMBUJAM
R13 D/O.VISWAMBHARAN, MADATHIPARAMBU, PULLOOT VILLAGE,
NARAYANAMANGALAM DESOM, KODUNGALLOOR TALUK, THRISSUR
DISTRICT.
#ADDL. R14 GIRIJA MENON, W/O.KOCHUGOVINDA MENON, KOLATH HOUSE,
THOTTIPPAL, MUKUNDAPURAM TALUK.
#ADDL. R15 PADMAKUMAR, S/O.KOCHUGOVINDA MENON, KOLATH HOUSE,
THOTTIPPAL, MUKUNDAPURAM TALUK.
#ADDL. R16 MANOJ KUMAR, S/O.KOCHUGOVINDA MENON, KOLATH HOUSE,
THOTTIPPAL, MUKUNDAPURAM TALUK.
##ADDL.R17 MRS.REMA, W/O.SRI.KUTTAN, ARYAMPARAMBIL HOUSE,
AS 919/96
3
LOKAMALLESWARAM, KODUNGALLUR.
###ADDL. ANEESH, S/O.LATE GOPALA MENON, PANANGAYIL HOUSE,
R18 NAALUM KOODIYA VAZHI, KOTHAPARAMBU, KODUNGALLUR,
THRISSUR.
###ADDL. AJI, S/O.LATE GOPALA MENON, PANANGAYIL HOUSE, NAALUM
R19 KOODIYA VAZHI, KOTHAPARAMBU, KODUNGALLUR, THRISSUR.
###ADDL. MANOJ, S/O.LATE GOPALA MENON, PANANGAYIL HOUSE,
R20 NAALUM KOODIYA VAZHI, KOTHAPARAMBU, KODUNGALLUR,
THRISSUR.
###ADDL. NIDHEESH, S/O.LATE GOPALA MENON, PANANGAYIL HOUSE,
R21 NAALUM KOODIYA VAZHI, KOTHAPARAMBU, KODUNGALLUR,
THRISSUR.
** ADDL.R8 AND R9 IMPLEADED AS PER ORDER DATED 14.10.98 ON
CMP.6697/98
*** ADDL.R10 TO R12 ARE IMPLEADED AS THE LEGAL
REPRESENTATIVES OF THE DECEASED R1 VIDE ORDER DATED 11.8.05 IN
CMP.3044/97.
**** ADDL.R13 IS IMPLEADED VIDE ORDER DTD.11.8.05 IN
I.A.1019/05.
# LEGAL HEIRS OF DECEASED RESPONDENT NO.2 ARE IMPLEADED AS
ADDITIONAL RESPONDENT NOS.14 TO 16, VIDE ORDER DATED 18.6.2024
IN IA NO.111/2009
## ADDITIONAL RESPONDENT NO.17 IS IMPLEADED VIDE ORDER DATED
18.6.2024 IN IA NO.3752/2005.
### ADDITIONAL RESPONDENTS NOS.18 TO 21 ARE IMPLEADED BEING
THE LEGAL HEIRS OF DECEASED RESPONDENT NO.1 VIDE ORDER DATED
18.6.2024 IN I.A.NO.1081/2017.
BY ADVS.
A.SUDHI VASUDEVAN (SR.) FOR R13-R15;
P.R.VENKITESH FOR R2;
S.VINOD BHAT FOR R3;
V.G.SURESH CHANDRA BABU FOR R3;
M.P.RAMNATH FOR R7;
A.K.SRINIVASAN R6;
N.P.SAMUEL FOR R10 & R12;
K.P.SURESH KUMAR FOR R10 & R12;
THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON
18.06.2024, THE COURT ON 28.06.2024 DELIVERED THE FOLLOWING:
AS 919/96
4
"C.R"
JUDGMENT
(Dated this the 28th day of June, 2024)
The defeated plaintiff in a suit for specific performance is the
appellant before this Court. The pointed question that arises for
consideration before this Court is whether after a lapse of near 40
years of the execution of the agreement of sale, this Court should
grant a decree for specific performance in favour of the
appellant/plaintiff. The success of the plaintiff in this appeal would
depend only if multiple points are found in his favour.
2. The present appeal, AS No.919/1996, arises from the
judgment and decree dated 31.10.1992 in OS No.193/1988 on the
files of Additional Subordinate Court, Irinjalakuda. The above OS
was disposed of along with OS No.364/1986, which was filed by
respondents 3 to 6 herein, who are defendants 3 to 6 in OS
No.193/1988. The appellant herein was the 1 st defendant in OS
No.364/1986. Even though, an appeal was preferred as AS
No.905/1995, before this Court, the same was dismissed for
default as per judgment dated 21.3.2013. Till today it is not
restored to file. The impact of the dismissal of the AS No 905 of
1998 for default will be discussed later in this Judgment.
3. OS No.364/1986 was filed for an injunction against the
plaintiff in OS No.193/1988 from trespassing into the plaint
schedule property. After two years on filing of OS No 364/1986,
the plaintiff in OS No.193/1988 claimed specific performance of
Ext.A2 agreement executed between the plaintiff and Gopala
Menon and Kochu Govinda Menon who are defendants 1 and 2,
respectively. Plaintiffs in OS No.364/1986 are the assignees
from defendants 1 and 2. Their assignments were in the year
1986. Apprehending that the plaintiff in OS No.193/1988 will
trespass into the property and disturb their peaceful possession,
OS No.364/1986 was filed.
4. The plaint averments in OS No.193/1988 shows that
the plaintiff along with defendants 1 and 2 entered into a Karar
with one Mr.Mambilly Thomas on 29.9.1984 as per which the said
Mambilly Thomas had agreed to assign 66.7 cents of land in
favour of plaintiff and defendants 1 & 2 for a sum of
Rs.13,34,000/-. The plaint schedule property covers an extent of
35.7 cents in Sy No.262/1 of Lokamaleswaram Village forming
part of larger extent of 66.7 cents in the same survey number
which is the subject matter of the agreement dated 29.9.1984. It
is further averred in the plaint that the entire 66.7 cents of land in
Sy.No.262/1 of Lokamaleswaram Village was in possession of the
plaintiff since Mambilly Thomas had done the sale. 96 cents in
Sy.No.559/6 of Pullut Village was also subject matter of the Karar
on 29.9.1984. Out of the said 96 cents, 48 cents was purchased
by the plaintiff in his own name and 48 cents purchased by the
plaintiff in the names of defendants 1 & 2, since he had borrowed
money from them earlier in June, 1983 for a sum of
Rs.2,25,000/-. Therefore, for balance 35.7 cents mentioned in the
plaint schedule, the plaintiff and Mambilly Thomas executed two
deeds of exchange in respect of 31 cents in Sy.No.262/1 of
Lokamaleswaram Village on 22.7.1985 and 6.9.1985 and these
documents have been registered as document Nos.2454 and 2842
of 1985 of Kodungallur Village. As per the terms of the
agreement, the plaintiff on 20.9.1985 had agreed to convey the
said item which was nominally to purchase from Mambilly Thomas
in pursuance to the karar dated 29.9.1984 and the plaintiff paid a
sum of Rs.3,41,300/- to defendants 1 and 2. Rs.2,48,900/- was
paid to the 2nd defendant and Rs.92,400/- was paid to the 1 st
defendant. On 13.12.1985, Mambilly Thomas and defendants 1
and 2 together executed an exchange deed assigning items
mentioned in the schedule in favour of defendants 1 and 2 in
consideration of them assigning 48 cents in Sy.No.559/6 of Pullut
Village, which stood in their names. The entire amount due to
Mambilly Thomas being the difference in the price of two items of
properties to be exchanged as per karar dated 29.9.1984 was paid
only by the plaintiff. The original karar dated 29.9.1984 was also
in the custody of the plaintiff. Thereafter, the plaintiff offered to
pay defendants 1 and 2 a sum of Rs.3,41,300/- to execute the
deed of conveyance. Though the defendants 1 and 2 agreed to
accept the aforesaid, they wanted more time. However, later it is
alleged that defendants 1 and 2 colluded with other defendants
and fraudulently concocted some documents purporting to show
that the defendants 1 & 2 have assigned the property to
defendants 3 to 7 in five portions. According to the plaintiff, since
he obtained possession of 66.7 cents pursuant to the karar dated
29.9.1984, and that he was entitled for specific performance, the
suit was instituted.
5. The defendants 1 and 2 appeared and contested the
suit filing the written statement. It was specifically denied that
the plaintiff was put to possession of 66.7 cents of land in
Sy.No.262/1 of Lokamaleswaram Village. The defendants 1 and 2
also contended that the 1st defendant and plaintiff were
shareholders in a finance company, named 'Pioneer Financiers',
Irinjalakkuda, and the plaintiff was the Chairman of the firm. The
2nd defendant's nephew was a shareholder of the firm and that is
how the 2nd defendant was introduced to the plaintiff. The plaintiff
had only paid price of his own property and that sale price in
respect of the property purchased by these defendants were paid
by the defendants. During September, 1985, the plaintiff
approached these defendants and told that Mambilly Thomas is
expressing certain doubts with regard to the exchange of
properties belonging to these defendants and the defendants
came to know that the plaintiff had managed to effect the
exchange between himself and Mambilly Thomas and these
defendants were naturally put to in embarrassing position.
According to the defendants, the plaintiff suggested that he will
prevail upon Mr. Thomas to exchange the property as per the
karar and that he will also prevail upon Mr. Thomas to re-assign
the property upon these defendants. According to the defendants,
since Mr.Mambilly Thomas is also a necessary party to the
agreement, absence of him in the party array is detrimental to the
cause of the plaintiff. On the prayer for specific performance, it
was contended that it was strange to pray for a specific
performance of a contract without mentioning the sale price. The
plaintiff had cleverly avoided to mention anything concerning the
sale price and therefore, according to the defendants, the plaintiff
is not entitled to any relief based on the karar dated 20.9.1985.
6. Based on the averments in the plaint and in the
written statement, the trial court framed the following issues:
"(1) Whether the plaintiff is in actual physical
possession of the plaint schedule property?
(2) Whether the defendants have committed
breach of contract?
(3) Whether the plaintiff is entitled to get a decree
for specific performance of contract?
(4) Whether the plaintiff is entitled to get
damages?
(5) Reliefs and costs?"
7. On behalf of the plaintiff, Exts.A1 to A7 were produced
and marked and PW1 to PW5 were examined. On behalf of
defendants, Exts.B1 to B14 were produced and DW1 to DW3 were
examined.
8. Based on the materials and evidence on record, the
trial court came into conclusion that the plaintiff is not entitled for
a specific performance of the agreement. The trial court
proceeded to find that the plaintiffs in OS No.364/1986 are the
bona fide purchasers of the property from defendants 1 and 2 in
OS No.193/1988 and accordingly declined to grant specific
performance. However, the alternate relief of damages quantified
at Rs.4,00,000/- was directed to be paid the hence, the suit was
decreed to that extent. It is aggrieved by the refusal on the part
of trial court to grant specific performance of the agreement that
the plaintiff has approached this Court by filing AS No.919/1996.
As No.905/1995 is taken against the judgment and decree in OS
No.364/1986, in which the appellant herein/plaintiff in OS
No.193/1988 has been restrained by a permanent prohibitory
injunction from trespassing into the properties held by the
plaintiffs in OS No.364/1986/defendants 3 to 6 in OS
No.193/1988.
9. I have heard Sri.G.Sreekumar Chelur, learned counsel
appearing for the appellant, and Sri.Vinod Bhatt, learned counsel
appearing for the 3rd defendant and Sri.M.P.Ramnath, the learned
counsel appearing for the 7th defendant.
10. Sri.G.Sreekumar Chelur, learned counsel appearing for
the appellant raised the following points:
(1) The trial court failed to appreciate the true purport of Section
19(b) of the Specific Relief Act, 1963.
(2) The provisions of Section 91 of the Indian Trusts Act, 1882
would also apply on the facts of the case entitling the
plaintiff to claim specific performance of the agreement.
(3) There was no essence of good faith in the transaction
between defendants 1 to 2 and 3 to 7.
(4) The defendants 3 to 7 had constructive notice of the karar
which is the subject matter of the suit for specific
performance because all the parties are residing in the
vicinity of the property in question.
(5) The attempt to alienate the property into 5 pieces of land
would certainly show the intention of defendants 1 & 2 to
defeat the performance of the karar.
11. The essence of the argument of Sri.G.Sreekumar
Chelur, is that the specific performance of the agreement could be
declined by the Court only if the ingredients of Section 19(b) are
found against the plaintiff. The assertion on the part of the
learned counsel for the appellant is basically against the lack of
good faith in defendants 1 and 2 in alienating the property during
the pendency of the agreement.
12. According to Sri.G.Sreekumar Chelur only if the
transferee has shown that he has parted the money in good faith
and without notice to the original contract that the relief for
specific performance would be declined. Here, in this case,
according to Sri.G.Sreekumar, the defendants 3 to 7 are residing
near the residence of defendants 1 and 2 near the vicinity of the
plaint schedule property and therefore presumed to have notice of
the agreement and hence the trial court erred egregiously in
holding that defendants 3 to 7 are bona fide purchasers of the
property. He would also point out that once the trial court has
found that there is breach on the part of defendants 1 and 2 in
complying with the terms and conditions of the agreement, the
necessary consequences should have followed which entitles the
plaintiff to claim a decree for specific performance.
13. On the other hand, Sri.Vinod Bhatt, learned counsel
appearing for the 3rd defendant would submit that the claim of the
appellant/plaintiff that he was put into possession of the property
of an extent of 66.7 cents, has been found against by the trial
court. There is no serious challenge to the said finding in the
above appeal. Moreover, when the plaintiff himself has failed
miserably to prove the assertion that he was put in possession of
the property which is subject matter of the agreement for sale,
and hence therefore he is not entitled for any discretionary relief.
Further, it has been pointed out that even if the plaintiff was
entitled for a decree for specific performance based on the failure
on the part of defendants 3 to 7 in discharging their obligation
under Section 19(b) of the Specific Relief Act, 1963 it does not
absolve the plaintiff from discharging the burden under Section 16
of the Specific Relief Act, 1963. According to Sri.Vinod Bhatt, the
learned counsel appearing for the 3 rd defendant, the plaintiff will
have to necessarily satisfy the court that he was ready and willing
to perform his part of the contract and it should have been
supported by evidence which is not the case here.
14. Sri.M.P.Ramnath, appearing on behalf of 7th defendant
supported the contentions of Sri.Vinod Bhatt and further
contended that his client has already transferred the property to
the 3rd party and in the absence of any interdictory orders, such
transfer cannot be interdicted by this Court.
15. In reply, the learned counsel Sri.G.Sreekumar Chelur
would point out that during the pendency of the appeal, if the
property has been sold, that will not affect the right of the plaintiff
to claim specific performance of the contract. Any transfer
pendente lite would be subject matter of the suit and the appeal
and there cannot be any importance attached to the transfer
made by the 7th defendant.
16. Based on the rival submissions raised before this Court,
the question that this Court must consider is as to whether the
finding of the trial court in declining to grant specific performance
of the contract is to be interfered or not?.
17. The power of the court to grant specific performance is
certainly discretionary. Even if the plaintiff succeeds in proving
that breach occurred on the part of the defendants, the plaintiff
cannot claim that the suit should be decreed as a matter of right.
In other words, appellant cannot be heard to contend that the
specific performance of an agreement should be granted as a
necessary corollary of the finding that the breach has been
occurred on the part of defendants 1 and 2.
18. Therefore, essentially, this Court would have to analyse
the findings rendered by the trial court and has to see as to
whether those findings are supported by evidence. Once the
findings of the trial court are supported by evidence on record,
necessarily the next question that would arise before this Court is
as to whether this Court should exercise its appellate power and
decree the suit in favour of the appellant.
19. It is to be noted that the suit for specific performance
was instituted in the year 1988 and the judgment was rendered
on 31.10.1992. The appeal has been pending on files of this
Court from 1996. Nearly, after a lapse of 30 years, should this
Court grant the decree of specific performance would also be a
prime consideration which passes through the mind of this Court
while rendering this judgment.
20. Before proceedings to consider the issue as to whether
the plaintiff/appellant is entitled for specific performance or not,
the pointed questions raised by the learned counsel for the
appellant will have to be addressed first.
21. The primary question which has been raised by the
learned counsel appearing for the appellant is that the defendants
3 to 7 have failed to discharge the duty cast upon them and they
have failed to prove that they are purchasers of the property for a
valuable consideration and without notice of the karar. Section
19(b), no doubt cast an obligation on the subsequent transferee to
establish as to whether he/she is a purchaser of the property for a
considered value and that too without notice of the karar. It is to
be noted that the plaintiff/appellant did not adduce any evidence
to show before the court that defendants 3 to 7 had any prior
notice of the agreement between him and defendants 1 and 2.
When this question was posted by this Court to the learned
counsel for the appellant, the answer of the appellant was that it
is presumed that the defendants 3 to 7 have constructive notice
about the karar because they were residing in the vicinity of the
subject matter of the plaint schedule property. However, this
Court cannot assume that defendants 3 to 7 had a constructive
notice in the absence of any material on record.
22. The question as to whether mere knowledge of
agreement for sale was sufficient to discharge the burden of the
plaintiff in a suit for specific performance came up for
consideration in Kirtarath Rai v. Sripat Rai [AIR 1928 All 307]
and it was held that the mere fact that the transaction might have
been known to a number of people is not enough. Still further, the
Hon'ble Apex Court in Ram Niwas (dead) through Lrs. v. Bano
(Smt) & Others [(2000) 6 SCC 685] has laid down that
"notice" under Section 19(b) of the Specific Relief Act may be (i)
actual, (ii) constructive or (iii) imputed. Under Section 3 of the
Transfer of Property Act and Explanation II thereof, a statutory
presumption of "notice" arises against any person who acquires
any immovable property or any share or interest therein of the
title, if any, of the person who is for the time being in actual
possession thereof. The further question would be whether the
principle laid down by the Supreme Court in terms of Section 3 of
the Transfer of Property Act would apply to the facts of the
present case. Admittedly, on evidence, it has been found though
the plaintiff asserted that he has been put in possession, such
claim has been thoroughly negatived for lack of evidence. Though
the proposition canvassed by the appellant in terms of Section 3
of the Transfer of Property Act is indisputable, this Court is not
persuaded to accept the contention of the learned counsel for the
appellant, especially when the plaintiff's assertion that he was in
possession of the property has been specifically found against. In
view of the aforesaid findings, this Court has to necessarily
conclude that on the facts of this case, there was no notice of
karar to defendants 3 to 7, much less a constructive notice could
be inferred on facts. Hence, this Court has no other alternative,
but to reject the aforesaid contention. This being so, the question
of applicability of Section 91 of the Indian Trusts Act, 1882 pales
into insignificance.
23. Once this Court has found that defendants 3 to 7 had
no notice about the karar, which is subject matter of the suit, then
necessarily the benefit of Section 19(b) will have to be granted to
defendants 3 to 7. Therefore, this Court cannot find fault with the
findings of the trial court that the defendants 3 to 7 are entitled
for the benefit of Section 19(b) of the Specific relief Act, 1963 and
thereby protecting their property from any decree that was liable
to be granted in favour of the plaintiff.
24. In addition to the above, one of the most important
factors which this Court could not afford to ignore is the conduct
of the plaintiff which does not inspire confidence in the minds of
this Court. It is admitted that the Karar which is the subject
matter of the suit for specific performance was entered on
29.9.1984. The sale, which is subject matter of Exts.B3 to B9 are
between 23.8.1986 and 4.9.1986. The suit for specific
performance was filed only on 10.6.1988. Before filing of the suit
for specific performance, the defendants 3 to 6 had already
approached the court by filing a suit, OS No 364/1986, for
injunction against the plaintiff in OS No.193/1988. Despite the
service of summons in OS No.364/1986, the appellant/ plaintiff,
chose to wait for two years after the receipt for filing the suit for
specific performance. This in the considered view of this Court,
would certainly deters this Court from exercising the discretion
under the Specific Relief Act, 1963.
25. Not Doubt the suit filed by the plaintiff is within the
period of limitation. The agreement in question do not prescribe
any time limit for performance. Therefore when parties to the
contract did not stipulate any period for performance of the
contract, can it be said that the plaintiff need to file the suit only
at the fag end of the expiry of the period of limitation. Answer to
this question should be necessarily in negative against the
plaintiff. Merely because the agreement does not stipulate the
period for performance, that itself will not absolve the plaintiff
from the burden of discharging that he had come before the court
within sufficient time. It may be noticed that the agreement
between the parties for sale of the property was on 20.9.1985 and
the suit has been filed only on 10.6.1988. No doubt the suit, as
found earlier is within the period of limitation. But the plaintiff
had notice about the transfer of the plaint schedule properties in
favour of defendants 3 to 7 when OS No.364/1986 was filed. Still,
the plaintiff chose to wait till 1988 to prefer the present suit. It is
in this context, that the court will have to consider exercise of the
discretionary relief in granting the decree of specific performance.
In the considered view of this Court, the factum of two years of
delay which has not been explained in anywhere in the plaint,
assume significance which would certainly disentitle the plaintiff to
claim a decree for specific performance.
26. The question as to whether despite the suit being
within the period of limitation, a plaintiff in a suit for specific
performance could be non-suited on the ground that the delay in
approaching the court is no longer res-integra. In
K.S.Vidyanadam Vs Vairavan [(1997) 3 SCC 1], it was held as
follows.
"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. Would it be
reasonable to say that because time is not made the essence
of the contract, the time-limit(s) specified in the agreement
have no relevance and can be ignored with impunity? It
would also mean denying the discretion vested in the court
by both Sections 10 and 20."
27. In Azhar Sultana v. B. Rajaani [(2009) 17 SCC
27], it was held by the Supreme Court that the court keeping in
mind the fact that it exercises a discretionary jurisdiction, would
be entitled to take into consideration as to whether the suit had
been filed within a reasonable time. What would be a reasonable
time would, however, depend upon the facts and circumstances of
each case. No hard-and-fast law can be laid down therefor. The
conduct of the parties in this behalf would also assume
significance.
28. In a more recent decision, Rajesh Kumar Vs Anand
Kumar & Ors. [2024 SCC Online SC 981], the Apex Court had
reiterated the point of law. On facts of the above case, it was
found that conduct of the plaintiff in not filing the suit immediately
on the transfer of property by the defendant and despite raising
objection to the application for mutation by the purchasers was
certainly a point put against the grant of decree for specific
performance.
29. Certainly, the facts in Rajesh Kumar (supra) matches
with the facts on hand. However, whatever said above, this Court
cannot be oblivious of the fact that the question of delay was
never in issue before the trial court. Therefore would it be proper
for this Court to non suit the plaintiff on the ground of delay
alone. The answer is obviously no. However, considering the fact
that the appeal is pending for nearly 30 years this Court is of the
definite view that on this issue the parties should not burden with
a trial, on framing of additional issue. Therefore, the endeavour of
this Court was only to find out whether the circumstances
warrants exercise of discretion in favour of the plaintiff. There
exists multiple factors which would dissuade this Court from
exercising the discretion. The question of delay is only one of the
factors. Pertinently, during the cross examination of the plaintiff a
more specific question was raised regarding the delay in filing the
suit, wherein he admitted that there was no reason to offer for
delay in filing the suit. Still further, the discussion on this issue
was necessitated since the plaintiff/appellant insists for a decree
for specific performance despite having notice of the subsequent
transfer as per Exts.B3 to B7 documents and the suit being filed
only after 2 years from the said transfer. Further, there is no
evidence on record to show that the plaintiff ever demanded
specific performance before instituting the suit. This certainly
shows lack of bonafide on the part of the plaintiff. Therefore, the
court cannot ignore the fact that the plaintiff could not discharge
the burden under Section 16(c) of the Specific Relief Act, 1963.
Therefore, when this Court is called upon to exercise the
discretion vested in it under the provisions of the Specific Relief
Act, 1963, certainly this Court is not persuaded to exercise the
discretion in the light of these overwhelming facts. Added to the
above, the plaintiff in not diligent in even prosecuting AS
No.905/1995. The dismissal of the said appeal for default leading
to the decree in OS No.364/1986 to become final would certainly
bar the appellant in seeking specific performance of the
agreement on the principles of res-judicata. Resultantly, if a
decree for specific performance is granted by this Court in favour
of the appellant, the same would be incongruous with decree in
OS No.364/1986, which was allowed to become final. In view of
the above findings, it becomes clear that the plaintiff is not
entitled to get a decree for specific performance.
Resultant discussion leads to the irresistible conclusion that
the findings of the trial court in declining the grant of specific
performance does not call for interference. The appeal lack merit
and accordingly dismissed. Parties are directed to suffer
irrespective costs. Sd/-
EASWARAN S.
JUDGE
jg
