Kerala High Court

C.M.Divakaran *[Died] vs K.S.Balan on 22 September, 2025

RFA No.406/2017




                                 1
                                               2025:KER:70717

                                                          'CR'

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

            THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR

  MONDAY, THE 22ND DAY OF SEPTEMBER 2025 / 31ST BHADRA, 1947

                        RFA NO. 406 OF 2017

          AGAINST THE DECREE AND JUDGMENT DATED 31.05.2017 IN OS

NO.155 OF 2012 OF SUB COURT, KATTAPPANA

APPELLANT/PLAINTIFF:

      1      C.M.DIVAKARAN [DIED]
             AGED 57 YEARS,S/O.MADHAVAN,
             CHAKKANIKUNNEL HOUSE,
             MURIKKADI KARA,KUMILI VILLAGE,
             IDUKKI DISTRICT.

      2      DIPIN C. DIVAKARAN
             S/O LATE C.M. DIVAKARAN, AGED 35 YEARS,
             RESIDING AT CHAKKANIKUNNEL HOUSE,
             MURIKKADI KARA, KUMILI VILLAGE,
             IDUKKI DISTRICT, PIN - 685535.

      3      DIVYA C. DIVAKARAN
             D/O LATE C.M. DIVAKARAN, AGED 33 YEARS,
             RESIDING AT CHAKKANIKUNNEL HOUSE,
             MURIKKADI KARA, KUMILI VILLAGE,
             IDUKKI DISTRICT, PIN - 685535.

             [THE LEGAL HEIRS OF DECEASED SOLE APPELLANT ARE
             IMPLEADED AS SUPPLEMENTAL APPELLANTS 2 & 3 VIDE
             ORDER DATED 08/04/2024 IN I.A.1/2024].
 RFA No.406/2017




                                 2
                                              2025:KER:70717


             BY ADVS.
             SRI.T.KRISHNANUNNI (SR.)
             SMT.MEENA.A.
             SRI.ASHWIN SATHYANATH
             SRI.M.DEVESH
             SRI.K.C.KIRAN
             SRI.VINOD RAVINDRANATH
             SRI.VINAY MATHEW JOSEPH
             SMT.M.R.MINI
             SHRI.ANISH ANTONY ANATHAZHATH
             SHRI.THAREEQ ANVER
             SMT.NIVEDHITHA PREM.V


RESPONDENTS/DEFENDANTS:

      1      K.S.BALAN
             AGED ABOUT 67 YEARS,S/O.SREEDHARAN,
             RESIDING AT HOUSE NO.29/31-B,
             THRIPOONITHURA TOWN,
             THRIPOONITHURA VILLAGE,
             ERNAKULAM DISTRICT,PIN-682 301.

      2      P.G.AJITHA
             AGED ABOUT 57 YEARS,W/O.K.S.BALAN,
             RESIDING AT HOUSE NO.29/31-B,
             THRIPOONITHURA TOWN,
             THRIPOONITHURA VILLAGE,
             ERNAKULAM DISTRICT,PIN-682301.

             BY ADVS.
             SRI.P.HARIDAS
             SRI.P.C.SHIJIN



       THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
26.08.2025, THE COURT ON 22.09.2025 DELIVERED THE FOLLOWING:
 RFA No.406/2017




                                      3
                                                        2025:KER:70717

                                                                         C.R.
                              JUDGMENT

Dated this the 22nd day of September, 2025

The plaintiff in OS. No.155/2012 on the file of Sub Court,

Kattappana is the appellant. (For the purpose of convenience, the parties

are hereafter referred to as per their rank before the trial court).

2. The plaintiff filed the suit for specific performance of an

agreement for sale dated 23.12.2005 and in the alternative for return of

advance amount. According to the plaintiff, the defendants agreed to

sell the plaint schedule property, which the defendants are entitled to as

per the final decree proceedings in I.A. No.677/2003 in OS No.29/2000

pending before the Sub Court, Kattappana, to the plaintiff for a

consideration of Rs.20,00,000/- As per the agreement, the plaintiff paid

an advance amount of Rs.2,00,000/- to the defendants. As per the

agreement, the balance consideration is to be paid and the sale deed is to

be executed within a period of six months. It was also agreed that in

case of any unexpected delay in passing the final decree, the agreement

is to be performed within a period of three months after passing of the

2025:KER:70717

final decree.

3. According to the plaintiff, on the date of agreement itself, the

plaintiff was put in possession of the plaint schedule property and a

power of attorney dated 5.1.2006 was also executed in favour of the

plaintiff. Accordingly, the plaintiffs cultivated the property with

cardamom spending a sum of Rs.10,00,000/- and now it is a high

yielding cardamom plantation getting attractive profit. The plaintiff has

performed substantial part of the agreement, settled an appeal preferred

by the brother of the 2nd defendant and brother-in-law of the 2nd

defendant before the High Court as AS.No.93/2003 paying a sum of

Rs.6,10,000/- and thereby the specific performance of the agreement

became possible. However, now the defendants are not willing to

perform the contract after receiving the balance sale consideration. The

power of attorney executed in favour of the plaintiff was also cancelled

on 6.3.2009. The plaintiff also came to know that the defendant is taking

hasty steps to sell the plaint schedule property to third persons, ignoring

the agreement executed with the plaintiff. In the above circumstances,

2025:KER:70717

the plaintiff instituted a suit before the Sub Court, Kattappana as OS

No.235/2010 after issuing a lawyers notice on 29.1.2010. Since the

defendants failed to perform the contract in spite of issuing lawyer

notice dated 29.1.2010 (Exhibit A7), the plaintiff preferred the suit.

4. Defendants 1 and 2 filed a written statement contending that

the suit is barred under Order II Rule 2 CPC, as the plaintiff failed to

seek relief of specific performance in O.S. No.235/2010. Further

according to them, the agreement dated 23.12.2005 (Exhibit A1) was

intended to be performed within a period of six months from the date of

its execution and it was never intended to be postponed for a period of

three months after passing the final decree. The plaintiff was never put

in possession of the plaint schedule property under the agreement as the

property was under the co-ownership of other owners also. The

defendants executed a power of attorney in favour of the plaintiff for the

sole purpose of cultivating and managing plaint schedule property as

they were residing elsewhere. The plaintiff was liable to furnish proper

accounts of the income received from the property. Since he did not

2025:KER:70717

furnish the accounts of the income received from the plaint schedule

property, the power of attorney was cancelled. The defendants are not

aware of the settlement entered into between the plaintiff and the

appellant in AS.No.93/2003 and the payments made by the plaintiff to

the appellant therein.

5. After the dismissal of the appeal, the final decree was passed

and separate possession of the respective shares were also allotted to the

parties. Therefore, the suit for specific performance, is a premature one.

Since the plaintiff failed to pay the balance sale consideration within six

months from the date of the agreement, the plaintiff was not at all ready

and willing to perform his part of the contract. Now, it is inequitable to

grant specific performance of schedule property for the price fixed at the

time of agreement in 2005. The above sale consideration is too low

when compared to the present market value of the property. Granting

specific performance will cause irreparable loss and injury to the

defendants. Therefore, according to the defendants, the plaintiff is only

entitled to get return of the advance amount and nothing else.

2025:KER:70717

6. The trial court framed seven issues. The evidence in the case

consists of the oral testimonies of PWs 1 to 8, DW1, Exhibits A1 to A24

and B1 to B5. After evaluating the evidence on record, the trial court

declined the prayer for specific performance, but decreed the prayer for

return of advance amount of Rs.2,00,000/- along with interest.

Aggrieved by the above judgment, the plaintiff preferred this appeal.

7. Now, the points that arise for consideration are the following:

1) Whether the suit is barred under Order II Rule 2 CPC?

2) Whether the plaintiff was always ready and willing to

perform his part of the contract?

3) Whether the plaintiff is entitled to get a decree for

specific performance as claimed?

8. Heard Sri. T. Krishnanunni, learned senior counsel for the

appellant and Sri. P. Haridas, learned counsel for the

respondents/defendants.

9. The Points: As per Exhibit A1 agreement dated 23.12.2005, the

defendants agreed to sell the plaint schedule property to the plaintiffs for

2025:KER:70717

a sum of Rs.20,00,000/-. At the time of executing the sale deed, the

plaint schedule property was the subject matter of the final decree

proceedings in I.A. No.677/2003 in O.S. No.29/2000 on the file of the

Sub Court, Kattappana. On the date of execution of Exhibit A1

agreement itself, a sum of Rs.2,00,000/- was paid by the plaintiff to the

defendants. On 5.1.2006, Exhibit A2 power of attorney was executed by

the defendants in favour of the plaintiff and possession of the plaint

schedule property was also handed over to the plaintiff. While

according to the plaintiff, the possession of the plaint schedule property

was handed over to him for managing and nurturing the property,

according to the defendants, it was for the purpose of cultivating and

managing the property as the defendants were residing elsewhere.

Though in Exhibit A1 agreement, the period of six months was

prescribed for paying the balance sale consideration and for executing

the sale deed, it contained a further stipulation that in case passing of

final decree is delayed, the contract can be performed within a period of

three months from the date of passing final decree. In this case, final

2025:KER:70717

decree was passed by the Sub Court, Kattappana only on 25.9.2010 and

thereafter the suit was filed on 2.12.2010. In the meantime on

29.1.2010, a lawyers notice (Exhibit A7) was also issued. Further on

2.12.2010, the plaintiff filed a suit as O.S. No.235/2010 seeking a

permanent prohibitory injunction against the defendants from alienating

the plaint schedule property against the terms and conditions of Exhibit

A1 sale agreement. According to the learned counsel for the defendants,

since in Exhibit A8 suit, the prayer for specific performance was not

raised, the present suit is barred by Order II rule 2 CPC.

10. On the other hand, according to the learned Senior Counsel,

the cause of action for filing the suit for specific performance did not

arise when Exhibit A8 suit was filed and as such the bar under Order II

Rule 2 CPC does not apply to the facts of this case. He has relied upon

the decision of the Hon'ble Supreme Court in Cuddalore Powergen

Corporation Ltd. v. M/s.Chemplast Cuddalore Vinyls Ltd. [2025

KHC 6046 SC], in support of his argument. Further according to the

learned senior counsel, as per Exhibit A1 sale agreement, a period of

2025:KER:70717

three months was provided from the date of passing the final decree

and the same had not expired when Exhibit A8 suit was filed.

Therefore, according to the learned senior counsel, the cause of action

for filing a suit for specific performance did not arise on 2.12.2010 when

Exhibit A8 suit was filed and as such the bar under Order II Rule 2 CPC

does not apply. In other words, according to the learned senior counsel,

the present suit for specific performance is perfectly maintainable.

Further according to him, if a prayer for specific performance was

included along with Exhibit A8 suit, it would have been styled as a

premature suit.

11. On the other hand, the learned counsel for the

respondents/defendants relied upon the decision of the Hon'ble Supreme

Court in M/s.Virgo Industries (Eng.) P. Ltd. v. M/s. Venture Tech

Solutions P. Ltd. [(2013) 1 SCC 625], in support of his argument that

the bar under Order II Rule 2 CPC will apply in the facts of this case.

12. Order II Rule 2 CPC states as follows:

"2. Suit to include the whole claim.--(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in

2025:KER:70717

respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

(2) Relinquishment of part of claim.--Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

(3) Omission to sue for one of several reliefs.--A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

Explanation.--For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action. "

13. In the decision in Cuddalore Powergen Corporation

(supra), the land owner (respondent No.2) entered into an agreement for

sale with respondent No.1 to sell a particular property for a

consideration of Rs.1,50,000/- and also executed a power of attorney in

favour of the 1st respondent to comply with the other formalities of

registration of the document. Later on, respondent No.2 revoked the

power of attorney and offered the advance consideration received by

2025:KER:70717

him. At the same time, the 1 st respondent tried to register the sale deed

on the basis of the power of attorney executed in his favour. However,

he could not succeed in registering the sale deed in the light of a

Government Order banning the registration of certain parcels of land

including the property involved in the case. In the meantime, the

respondent No.1 filed a suit against forceful dispossession and in the

meantime, the 2nd respondent executed a sale deed in respect of the

same property in favour of the appellant. When the 1 st respondent came

to know about the sale deed executed by the 2 nd respondent in favour of

the appellant, he filed the 2 nd suit for specific performance. In the

meantime, in the public interest litigation filed before the High Court

challenging the Government Order, the High Court set aside the

Government Order. The trial court dismissed the suit for specific

performance under Order II Rule 2 CPC, but the High Court reversed

the finding of the trial court. In appeal, the Hon'ble Supreme Court

sustained the judgment of the High Court and held that in the light of

the Government Order banning registration of the sale deed the 1 st

2025:KER:70717

respondent could not have filed a suit for specific performance at the

time when he filed the 1st suit for injunction. Therefore, the Apex Court

held that in the facts of this case, the bar under Order II Rule 2 CPC did

not apply.

14. In the decision in Virgo Industries (supra.), the respondent

being the original plaintiff filed two suits seeking permanent prohibitory

injunction restraining the appellants/defendants from alienating,

encumbering or dealing with the plaint schedule properties to anybody

other than the plaintiff. Though suits were filed on the basis of two sale

agreements entered into by the plaintiffs and the defendants on

27.7.2005 in respect of two different parcels of immovable property, in

the injunction suits the plaintiff had stated that on the pretext that

restrictions on the alienation of the suits land were likely to be issued by

the Central Excise Department on account of getting revenue demands,

the defendants were attempting to frustrate the agreements in question.

In the plaint, they have further stated that as the period of six months

fixed for execution of sale deeds under the agreements in question was

2025:KER:70717

not yet over, the plaintiff is not claiming specific performance of the

agreements. Further, they sought leave of the court to omit claim the

relief of specific performance with liberty to sue for the said relief at a

later point of time, if necessary. The injunction suits were filed on

28.8.2005 and 9.9.2005 respectively. Thereafter on 29.5.2007, the

plaintiff filed two suits for specific performance. In the suits for specific

performance, the plaintiff has specifically contended that at the time of

filing the suits for injunction, the period provided for execution of sale

agreement has not expired and also that at the time of filing the suit for

injunction, the prayer for specific performance would have been

premature. Even then, rejecting the arguments raised by the

plaintiff/appellant, the Apex Court held in paragraph 14 as follows:

"14. The averments made by the plaintiff in C.S. Nos. 831 and 833 of 2005,particularly the pleadings extracted above leave no room for doubt that on the dates when C.S. Nos. 831 and 833 of 2005 were instituted, namely,28.8.2005 and 9.9.2005, the plaintiff itself had claimed that facts and events have occurred which entitled it to contend that the defendant had no intention to honour the agreements dated 27.7.2005. In the aforesaid situation it was open for the plaintiff to incorporate the relief of specific

2025:KER:70717

performance alongwith the relief of permanent injunction that formed the subject matter of above two suits. The foundation for the relief of permanent injunction claimed in the two suits furnished a complete cause of action to the plaintiff in C.S. Nos. 831 and 833 to also sue for the relief of specific performance. Yet, the said relief was omitted and no leave in this regard was obtained or granted by the Court."

15. Further, in paragraph 15, the Apex Court held that:

"15. Furthermore, according to the plaintiff, which fact is also stated in the plaints filed in C.S. Nos. 831 and 833, on the date when the aforesaid two suits were filed the relief of specific performance was premature inasmuch as the time for execution of the sale documents by the defendant in terms of the agreements dated 27.7.2005 had not elapsed. According to the plaintiff, it is only after the expiry of the aforesaid period of time and upon failure of the defendant to execute the sale deeds despite the legal notice dated 24.2.2006 that the cause of action to claim the relief of specific performance had accrued. The above stand of the plaintiff found favour with the High Court. We disagree. A suit claiming a relief to which the plaintiff may become entitled at a subsequent point of time, though may be termed as premature, yet, can not per se be dismissed to be presented on a future date. There is no universal rule to the above effect inasmuch as "the question of a suit being premature does not go to the root of the jurisdiction of the Court" as held by this Court in Vithalbhai (P)

2025:KER:70717

Ltd. v. Union Bank of India[6]. In the aforesaid case this Court has taken the view that whether a premature suit is required to be entertained or not is a question of discretion and unless "there is a mandatory bar created by a statute which disables the plaintiff from filing the suit on or before a particular date or the occurrence of a particular event", the Court must weigh and balance the several competing factors that are required to be considered including the question as to whether any useful purpose would be served by dismissing the suit as premature as the same would entitle the plaintiff to file a fresh suit on a subsequent date. We may usefully add in this connection that there is no provision in the Specific Relief Act, 1963 requiring a plaintiff claiming the relief of specific performance to wait for expiry of the due date for performance of the agreement in a situation where the defendant may have made his intentions clear by his overt acts."

16. In the decision in Pramod Kumar and Anothers v. Zalak

Singh and Others (2019) 6 SCC 621, relied upon by the learned

counsel for the respondent, two items of properties were involved,

having a total extent of 8.22 acres. Those properties were sold by Mr.

Tikaram through two sale deeds, one in respect of 3.20 acres dated

21.01.1959 and the second one for 4.82 acres as per sale deed dated

11.2.1959. The suit was filed in 1983 to set aside the first sale deed by

2025:KER:70717

the relatives of Mr. Tikaram, claiming that the said property is a joint

ancestral property. The trial court dismissed the above suit stating that

the above 8.22 acres of property belong to Tikaram through family

partition and that he is the absolute owner of the said property. In 1971

they filed another suit to set aside the sale deed in respect of the

remaining properties. In the above facts, the apex court held that the

second suit was barred by Order II Rule (2) CPC. In the above decision,

the plaintiff entered into a sale agreement with the 1 st defendant for

purchasing the property belonging to the 1st defendant and her children

for a price of Rs.62,000/- per acre. The time stipulated for completing

the performance was 13.3.1994 and the date of agreement was on

18.9.1993. The plaintiff alleging that though he was ready and willing

to perform his part of the contract, the defendant was not ready to

execute the sale deed, filed a suit as O.S.37/1994 against the 1 st

defendant preventing any breach of terms in Exhibit A3 agreement.

The injunction suit was dismissed on 24.8.1994. Thereafter, the plaintiff

filed a suit for specific permanence as O.S No.166/1994. In the

2025:KER:70717

meantime, the defendant filed a suit as O.S.No 164/1994 against the

plaintiff alleging that the plaintiff is trying to trespass into the property

covered by Exhibit A3 agreement. While holding that the second suit is

barred under Order II Rule (2) CPC, the Apex court held in paragraph

23 as follows:

"23. The Privy Council proceeded to summarize the principles relating to O.2 R.2 CPC, in paragraph 61, which reads as follows:

"61. The principles laid down in the cases thus far discussed may be thus summarized:

(1) The correct test in cases falling under O.2 R.2, is "whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit.

(2) The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment.

(3)If the evidence to support the two claims is different, then the causes of action are also different.

(4) The causes of action in the two suits may be considered to be the same if in substance they are identical. (5) The cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers..... to the media upon which the plaintiff asks the Court

2025:KER:70717

to arrive at a conclusion in his favour."

17. The learned Senior counsel for the appellant would argue that

in this case the suit for injunction was filed before the expiry of the

period stipulated in the agreement for specific performance and at that

time, suit for specific performance was premature. Further according

to the learned senior counsel, the defendant has not intimated that they

are not willing to execute the sale deed. Therefore, the learned senior

counsel would argue that the bar under Order II Rule (2) CPC does not

apply to the facts of this case. However, the argument that the suit for

specific performance would have been premature before the expiry of

the period stipulated in the agreements does not hold good in the light

of the dictum laid down by the Apex Court in Virgo industries (supra).

In the above decision, the Apex Court held that a suit for specific

performance is not barred even if filed before the expiry of the period

stipulated in the agreement.

18. In the instant case, Exhibit A1 sale agreement was executed

on 23.12.2005. The defendants in the suit filed OS. No.29/2000 before

2025:KER:70717

the Sub Court, Kattappana for partition and Exhibit B1 preliminary

decree was passed in the said suit on 31.7.2002. AS No.93/2023, filed

against the preliminary decree before this Court was dismissed as

withdrawn as revealed from Exhibit A6, on 22.8.2009. In the final

decree proceedings, namely IA.No.677/2003, the Advocate

Commissioner deputed by the Court filed a report on 2.11.2005. It was

thereafter on 23.12.2005 Exhibit A1 sale agreement was executed. Even

the final decree was passed by the Sub Court on 25.9.2010. It was

thereafter on 2.12.2010, the plaintiff filed the suit for injunction. It is

true that, in the injunction suit, the right to file suit for a specific

performance was reserved. It is also true that in Exhibit A1 sale

agreement, the period prescribed for performance was three months after

passing of final decree.

19. In the plaint in OS.235/2010, the plaintiff has specifically

pleaded that he got believable information that as soon as the proceeding

in the final decree application are over, the defendants are planning to

sell the plaint schedule property to third parties, against the terms and

2025:KER:70717

conditions of the agreement dated 23.12.2005. In paragraph 7 of the

plaint, it is further stated that it is also learned by the plaintiff that the

defendants have entrusted one real estate broker named Sajan in the

locality to sell the plaint schedule property to third parties. It is also

pleaded that the apprehended sale of the plaint schedule property is

illegal and the defendants have no right to sell the plaint schedule

property to third parties against the terms and conditions of the

agreement dated 23.12.2005. It is further pleaded that, in the meantime,

the power of attorney executed by the defendant in favour of the plaintiff

on 5.1.2006 was also cancelled on 6.3.2009. In OS. 235/2010 the cause

of action alleged is on 6.3.2009 and 18.11.2010, the dates on which the

plaintiff came to know about the plan and preparations of the defendant

to alienate the plaint schedule property to the third parties and to

dispossess the plaintiff from the plaint schedule property. The relief

sought for in the suit is a permanent prohibitory injunction restraining

the defendants from alienating the plaint schedule property against the

terms and conditions of the agreement and from dispossessing the

2025:KER:70717

plaintiff from the schedule property.

20. On a perusal of the above pleading in the plaint itself, it can

be seen that, even before filing the above suit, the plaintiff got reliable

information that the defendants are planning to sell the plaint schedule

property to third parties and also that they are not going to honour

Exhibit A1 sale agreement. In the above circumstance, it is crystal clear

that even at the time of filing OS No..235 of 2010 the plaintiff was

aware of the fact that the defendants are not going to execute the sale

deed in favour of the plaintiff and the attempt of the defendants was to

sell the schedule properties to strangers. Therefore, at the time of filing

the suit OS. No. 235/2010 the plaintiff had the option to sue for specific

performance also. Though in the said suit the right to sue for specific

performance was reserved, the leave of the court was not obtained as

required under Order II Rule 2 CPC. Therefore, this is a case in which

the bar under Order II Rule 2 squarely applies and as such the trial court

was perfectly justified in holding that the present suit is hit by Order II

Rule 2 CPC.

2025:KER:70717

21. The learned counsel for the appellant would argue that the

trial court was not justified in not answering issue Nos. 2 to 6 and

disposing of the suit merely on the basis of the finding on the

preliminary issue under Order II Rule 2 CPC. It is true that, by virtue of

O.XIV Rule 2 CPC, notwithstanding that a case may be disposed of on a

preliminary issue, the court shall, subject to the provisions of sub-rule

(2), pronounce judgment on all issues and as such, even though the court

found that the suit is not maintainable in the light of Order II Rule 2

CPC, the trial court ought to have decided the other issues also.

22. It is true that this court also found that the suit is barred

under Order II Rule 2 CPC. Even then, of O.XIV Rule 2 CPC, it is

advisable to dispose of the other issues also, on merits. This is a suit for

specific performance. Exhibit A1 is the agreement for sale dated

23.12.2005. The period provided for specific performance is six

months. However, it is to be noted that at the time of executing Exhibit

A1 agreement, the defendant did not have possession and delivery of the

property he agreed to be sold to the plaintiff. The defendant filed a suit

2025:KER:70717

for partition and the final decree proceedings were pending at the time

of executing Exhibit A1 agreement. It is true that in Exhibit A1 there is

a clause to the effect that sale deed can be executed within a period of

three months from the date of passing of final decree, in case there is

delay in passing the final decree. In the above circumstance, the learned

counsel for the appellant would argue that the suit filed on 19.7.2012 is

within the period of three months from the date of passing the decree, as

the final decree was passed only on 25.9.2010. It means that the

plaintiff filed the suit for specific performance more than 6½ years after

the date of execution of Exhibit A1 sale agreement.

23. In the meantime, on 29.1.2010 the plaintiff issued Exhibit

A7 lawyers notice to the defendant calling upon him to execute the sale

deed. In the said notice, it is also stated that if the defendant fails to

execute the sale deed as demanded in the said notice, he will initiate

appropriate legal proceedings against the defendant. However, even

then the plaintiff waited till 19.7.2012 to file the suit for specific

performance. In this context, it is worthwhile to note that, in Exhibit A7

2025:KER:70717

lawyers notice, the plaintiff has not expressed his readiness and

willingness to perform his part of the agreement. The law is well settled

that the person who seeks specific performance of an agreement should

always be ready and willing to perform his part of the contract.

However, conspicuously, such pleadings regarding readiness and

willingness are absent in Exhibit A7 lawyers notice. Moreover, even

though the defendant did not execute the sale deed as demanded, in

Exhibit A7, he has waited more than 2 1/2 years after Exhibit A7 suit

notice, to file the suit for specific performance.

24. It is true that as per Exhibit A1, the plaintiff could get the

sale deed executed after the passing of the final decree and the final

decree was passed in this case only on 25.9.2010. Even then, the

plaintiff filed only a suit for injunction on 2.12.2010 and filed the suit

for specific performance only on 19.7.2012. Failure on the part of the

plaintiff in pleading his readiness and willingness in Exhibit A7 and in

waiting for 6 ½ years for seeking specific performance is fatal to the

claim for specific performance.

2025:KER:70717

25. As per the terms of Exhibit A1 sale agreement, possession

was handed over to the plaintiff and a power of attorney was also

executed on 5.1.2006. However, the said power of attorney was

cancelled by the defendant on 6.3.2009. Thereafter, though as per

Exhibit A7 notice, specific performance was demanded on 29.1.2010,

the defendant failed to comply with the demand for specific

performance. In the above circumstance, the plaintiff ought to have

filed the suit for specific performance immediately after Exhibit A7

notice. The plaintiff has not offered any satisfactory explanation for not

filing the suit for specific performance, at least immediately after

Exhibit A7 lawyers notice. There is also no explanation from the side of

the plaintiff in not pleading his readiness and willingness to perform his

part of the contract in Exhibit A7 lawyers notice.

26. The law is well settled that relief of specific performance is

only a discretionary relief and even if it is found that the breach of

contract was committed by the defendant, the court is not bound to grant

the relief of specific performance. Section 20 of the Specific Relief Act

2025:KER:70717

dealing with the discretion to be exercised by the court while

considering the relief of specific performance is extracted below for

reference:

"20. Discretion as to decreeing specific performance.--

(1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. (2)The following are cases in which the court may properly exercise discretion not to decree specific performance:--

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

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

(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.

Explanation 1.--Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b).

Explanation 2.--The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be

2025:KER:70717

determined with reference to the circumstances existing at the time of the contract.

(3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.

(4)The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party."

27. In this case, the total sale consideration was Rs.20,00,000/-

and the plaintiff had advanced only a sum of Rs.2,00,000/-, to the

defendant at the time of executing Exhibit A1. From the evidence on

record, it is revealed that after getting possession of the plaint schedule

property, the plaintiff spent amounts for cultivating cardamom and he

was also taking yield from the said cardamom. As held by the trial

court, though the plaintiff has spent money for cultivating cardamom in

the schedule property, he himself has taken the yield from the said

property and as such in this case there is no reliable evidence to show

that the plaintiff has in fact sustained any loss on account of non-

performance of Exhibit A1 agreement. At the same time, as I have

already noted above, as per Exhibit A1 agreement dated 23.12.2005, the