is the appellant. (For the purpose of convenience, the parties are hereafter
2. The plaintiff filed this suit for specific performance of an agreement
for sale dated 13.2.2008, along with an alternative prayer for return of advance.
schedule property having an extent of 13 cents for Rs.75,000/- per cent. As per
defendant and the period stipulated for the performance was four months. As per
property after measurement and also encumbrance-free title to the plaintiff. Since
the defendant failed to perform the contract in spite of demand and the defendant
tried to alienate the said property, the plaintiff filed a suit as O.S.119/2008 before
the Munsiff's court, Attingal and obtained an injunction against the defendant.
performance, the defendant failed to perform the contract and hence the suit.
3. The defendant filed a written statement contending that consequent
various hospitals including Santhigiri asramam, General hospital,
Thiruvananthapuram and Medical college hospital. Due to financial constraints
she borrowed a sum of Rs.25,000/- from the plaintiff after affixing her signature
defendant. She had no intention to sell the plaint schedule property. She had not
schedule property. The defendant conducted the marriage of her daughters
agreeing to give shares from the scheduled properties. Three buildings are there
cent during the year 2008. If the scheduled property is disposed of, the defendant
and her children will be thrown out to the street. Therefore, she prayed for
4. The trial court framed five issues. The evidence in the case consists
of the oral testimonies of PWs1 to 5, DW1 and Exts.A1 to A6. After evaluating
Rs.25,000/- along with interest at the rate of 18% per annum from the date of the
agreement till the date of the decree and thereafter, at the rate of 6% per annum,
till realization with costs. Dissatisfied with the above judgment and decree of the
5. Now the points that arise for consideration are the following :
1) Whether the defendant agreed to sell the plaint schedule property to
the plaintiff ?
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2. Whether the plaintiff was always ready and willing to perform his part
of the contract ?
3. Whether the suit is barred under Order II Rule 2 CPC ?
4. Whether the plaintiff is entitled to get a decree for specific
performance as prayed for ?
6. Heard Smt.Ligey Antony, the learned counsel for the appellant and
Sri.R.Muraleekrishnan (Malakkara), the learned counsel for the respondent.
7. Admittedly the plaint schedule property having an extent of 13
cents belongs to the defendant. According to the plaintiff, as per Ext.A2
agreement dated 13.2.2008, the defendant agreed to sell the plaint schedule
property to the plaintiff for a consideration of Rs.75,000/- per cent. Further,
according to the plaintiff, on the date of execution of Ext.A2, a sum of
Rs.25,000/- was paid as advance and the sale deed was to be executed within a
period of four months, from the date of the agreement. On the other hand,
according to the defendant, she never executed any sale agreement in favour of
the plaintiff and when she was in dire need of money, in connection with her
treatment, she only borrowed a sum of Rs.25,000/- from the plaintiff after
affixing her signature in two stamp papers and a white paper. On the side of the
plaintiff, PW1 to 5 were examined. The plaintiff was examined as PW1 and one
of the attestors to Ext.A2, Selvan, was examined as PW3. In addition to the same,
the plaintiff examined PWs2, 4 and 5 also. According to them, Ext.A2 sale
agreement was executed by the defendant after agreeing to sell the plaint
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schedule property to the plaintiff. On the side of the defendant, the defendant
herself was examined as DW1. At the time of evidence she claimed that she only
borrowed a sum of Rs.25,000/- from the plaintiff and that she never executed an
agreement agreeing to sell the plaint schedule property to the plaintiff.
8. The learned counsel for the appellant would argue that even before
the expiry of the period mentioned in Ext.A2, the plaintiff issued Ext.A3 lawyer's
notice on 9.6.2008 and also Ext.A3(b) notice dated 3.6.2008 demanding her to
execute the sale deed, after receiving the balance sale consideration. Therefore,
according to the learned counsel, the plaintiff was always ready and willing to
perform his part of the contract and the sale deed could not be executed due to the
default of the defendant. On the other hand, the learned counsel for the defendant
would argue that the defendant, who was a widow, due to her financial
constraints, happened to affix her signature in blank papers at the instance of the
plaintiff and as such, the trial court was justified in declining the relief of specific
performance. He would also argue that the plaintiff has not succeeded in proving
his readiness and willingness and especially his financial capacity to purchase the
plaint schedule property. He would also argue that there are three residential
buildings in the plaint schedule property and there was no mention of the same in
Ext.A2.
9. The law is well settled that the relief of specific performance is a
discretionary relief and merely for the reason that the plaintiff was ready and
willing to perform his part of the contract, the court is not bound to grant the
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relief of specific performance. Section 20 of the Specific Relief Act, 1963,
dealing with the discretion to be exercised while granting a decree 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).
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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 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.
10. According to the defendant, she is a widow and the mother of two
daughters and they are residing in the residential building in the plaint schedule
property. According to her, if the prayer for specific performance is allowed, they
will be thrown out to the street. The specific case of the defendant is that there are
three residential buildings in the plaint schedule property. However, in Ext.A2
sale agreement, there is no mention about any such buildings and valuation is
given only to the landed property namely, Rs.75,000/- per cent of land. During
the cross examination of PW1, when it was suggested to him that the defendant
has four children and all of them are residing in three residential buildings
situated in the said property, the same was not denied by him. He even pleaded
ignorance when it was suggested that the defendant and children are residing in
the residential building in the said property along with their family. He also
deposed that he is not aware whether the defendant has any other property or
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residential building.
11. The fact that in Ext.A2 there is no mention about the three
residential buildings and no valuation is given for the residential building and the
value is given only for landed property on centage basis, is a strong circumstance
probabilising the defence version that Ext.A2 was not a genuine sale agreement
and improbabilising the plaintiff's case.
12. In Thomas P.A. (Died) & Ors. v.M/s.Southern Housing
Corporation Ltd. 2025 KHC 364 relied on by the learned counsel for the
plaintiff, a learned Single Judge of this Court held in paragraph 42 that :
"42. As far as the legal position governing the grant of discretionary
relief, the decisions cited by both sides will hold the field. In order to
obtain a decree for specific performance, the plaintiff has to prove
readiness and willingness to perform his part of the contract and the
readiness and willingness has to be shown throughout and has to be
established by the plaintiff. Clause (c) of S.16 of the Specific Relief
Act, 1963, lays down the conditions precedent to the enforcement of
specific performance of a contract. S.16(c) of the Act is couched in a
negative form. It mandates that specific performance of a contract
cannot be enforced in favour of a person who has failed to aver and
prove his readiness and willingness to perform his part of the contract.
In terms of S.16(c), what are the obligations which the plaintiff has to
comply with in reference to his plea and whether the plea of the
plaintiff could not be construed to conform to the requirement of the
aforesaid section, or does this section require specific words to be
pleaded that he has performed or has always been ready and is willing
to perform his part of the contract. In construing a plea in any
pleading, courts must keep in mind that a plea is not an expression of
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art and science but an expression through words to place fact and law
of one's case for a relief. Such an expression may be pointed, precise,
sometimes vague but still it could be gathered what he wants to convey
through only by reading the whole pleading, depending on the person
drafting a plea."
13. Relying upon the decision in Shama Naik R. v. G.Srinivasiah,
2024 KHC 6671 the learned counsel for the defendant would argue that it is the
burden of the plaintiff to prove that he had the funds to purchase the property. In
the above decision, in paragraph 10 the Apex Court held that :
"The law is well settled. The plaintiff is obliged not only to
make specific statement and averments in the plaint but is also obliged
to adduce necessary oral and documentary evidence to show the
availability of funds to make payment in terms of the contract in time."
14. During the cross examination, PW1 claimed that he mobilised the
balance amount of 9.5 lakhs by selling the share of his wife at Chadayamangalam
in October, 2007. He also claimed that he retained the sale proceeds of his wife's
share worth Rs.9.5 lakhs till the expiry of the period in Ext.A2. Though he agreed
to produce documents to prove the above fact, he has not produced any such
documents. Even at the time of argument before this Court, he could not produce
any documents to prove that he had mobilized Rs.9.5 lakhs by selling the
property of his wife. Failure on the part of the plaintiff in producing such
documents which are claimed to be within his reach persuades me to believe that
he has no such documents to be produced, to prove that he was in possession of
Rs.9.5 lakhs as claimed. In that case, an adverse inference is to be drawn against
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the plaintiff that he was not in possession of Rs.9.5 lakhs by selling the property
of his wife. If so, it is to be further held that he was not ready and willing to
perform his part of the contract, as claimed. Further, if Ext.A2 was a genuine sale
agreement, in addition to the value of the landed property, the value of the
residential buildings situated therein also would have been included as part of
sale consideration. The above circumstances probabilises the case of the
defendant that it was only a loan transaction and that he never intended to sell the
plaint schedule property to the plaintiff. In the above circumstance, the trial court
was justified in declining the prayer for specific performance.
15. In the proof affidavit the plaintiff admits that before filing the suit
for specific performance, he filed a suit as O.S. 119/2008 before the Munsiff's
court, Attingal, when he came to know that the defendant was about to sell the
plaint schedule property to strangers. Even then, instead of filing a suit for
specific performance, he filed a simple suit for injunction. Order II Rule 2 CPC
reads as follows :-
"Rule 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 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.
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(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."
16. In this context it is worthwhile to refer to 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 the above decision, 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 not yet over, the plaintiff is not
claiming specific performance of the agreements. Further, they sought leave of
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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 performance
along with 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."
17. 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
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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)
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."
18. In this case the plaintiff filed the above suit for injunction, without
obtaining leave of the court to file a suit for specific performance and as such, the
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present suit is hit by Order II Rule 2 CPC also.
19. In the light of the above discussions, it is to be held that there is no
irregularity or illegality in the judgment and decree of the trial court so as to call
for any interference. Points answered accordingly.
20. In the result, the appeal is dismissed, confirming the judgment and
decree of the trial court.
All pending interlocutory applications in the appeal will stand dismissed.
Sd/-
C.Pratheep Kumar, Judge
Mrcs/17.9.25
