Dilip vs Kamlesh
2024 Latest Caselaw 12279 MP

Madhya Pradesh High Court

Dilip vs Kamlesh on 2 May, 2024

Author: Anil Verma

Bench: Anil Verma

                                   1



       IN THE HIGH COURT OF MADHYA PRADESH

                             AT INDORE
                               BEFORE
              HON'BLE SHRI JUSTICE ANIL VERMA
                    ON THE 2ND OF MAY, 2024

                 SECOND APPEAL No. 2787 of 2022

     BETWEEN:-
     DILIP SON OF GULZAR BARDE AGED 48 YEARS,
     RESIDENT OF SUDAMA COLONY, SENDHWA
     DISTRICT BARWANI (MP)
                                                     .....APPELLANT
     (BY SHRI NITIN PHADKE -ADVOCATE)


     AND
     KAMLESH SON OF RAMKRISHNA METKAR
     AGED 45 YEARS, OCCUPATION SENDHWA,
     RESIDENT OF JAI HIND CHOWK, SENDHWA,
     DISTRICT BARWANI (MP)
                                                     ...RESPONDENT




     This appeal coming on for hearing this day, the court passed the
     following:
                             JUDGMENT

Heard on admission.

1. The appellant/plaintiff has preferred the present second appeal under section 100 of Code of Civil Procedure, 1908 (in short CPC) against the impugned judgment and decree dated 30.8.2022 passed by First Additional District Judge Sendhwa District Barwani in civil

appeal no. 3/2022 thereby affirming the judgment and decree dated 7.2.2022 passed by Civil Judge Senior division Sendhwa District Barwani in civil suit No. 500026A/2013 whereby the suit filed by appellant for specific performance of contract has been dismissed.

2 Brief facts of the case are that the appellant/plaintiff had filed a civil suit before the trial court by stating that respondent/defendant had executed an agreement to sale in favour of appellant whereby the suit plot (admeasuring 40ft x 14 ft)was agreed to be sold to appellant for consideration of Rs. 61,000/- and appellant has paid Rs. 11,000/- at the time of execution of agreement and after period of 8 days thereof, appellant had further paid Rs. 15,000/- to respondent and possession of suit land was handed over to appellant but later on at the time of demarcation of the suit land it was found only 10 ft x 40 ft and respondent agreed to sale the suit plot for a sum of Rs. 43,000/-. The respondent has assured that he will execute registered sale deed. The appellant always ready and willing to pay balance amount to respondent. The appellant requested the respondent from time to time to execute sale deed but respondent avoided the same.

3 The respondent/defendant denied all plaint averments by submitting that he has not executed any agreement to sale with appellant. The appellant did not give any notice to him. The respondent is in valid possession of the suit land as an owner of the suit land.

3 The learned trial court on the basis of aforesaid pleading framed issues and after hearing both the parties and recording evidence has dismissed the suit filed by appellant. Being aggrieved by the impugned

judgment and decree, the appellant has preferred first appeal but after re- appreciating the entire evidence, the first appellate court has affirmed the findings of fact so recorded by the trial court and dismissed the appeal. Hence the appellant has preferred this second appeal.

4 Learned counsel for appellant contended that both the courts below have committed grave error of law and facts. The judgment and decree passed by both the courts below are illegal, perverse, arbitrary and not based upon proper appreciation of evidence. Both the court below have failed to consider that appellant was ready and willing to perform his part of contract and also has sent reply to the notice issued by respondent but both the courts below have ignored the pleadings and evidence adduced by the appellant. Thus, in view of the aforesaid, learned counsel for the appellant submits that the appeal deserves to be admitted on the substantial questions of law so proposed by the appellants.

5 Heard learned counsel for the appellant and perused the record with due care.

6 The appellant/Dilip (PW-1) categorically stated in his statement that he was always been ready and willing to perform his part of contract (Ex.P-3). It is mentioned in the registered agreement (Ex.P-3) that registered sale deed will be executed after receipt of rest of the amount. The appellant in para 16 admits that he did not send any notice to respondent for specific performance of agreement till filing the suit. He admits that respondent has sent notice Ex.P-2 and it has been categorically mentioned in Ex.P-2 that he has not paid rest of the amount to respondent within three months.

7 It is settled law that terms of It is settled law that terms of an agreement for specific performance have to be read and understood as it is. The entire agreement to be read as a whole to ascertain the intention of parties and working out provisions thereof to ascertain fulfillment of the requisite conditions so that the agreement could be enforced by law. Moreover, the contents of written agreement cannot be proved otherwise than by writing itself. Section 91 of the Evidence Act prohibits proving of contents of a document, otherwise subject of course to exception provided thereunder.

8 The Hon'ble Supreme Court in the case of Manawanti Vs. Kaushalya Devi (1990) 3 SCC 1, it has been held as under:

"19. The specific performance of a contract is the actual execution of the contract according to its stipulations and terms, and the courts direct the party in default to do the very thing which he contracted to do. The stipulations and terms of the contract have, therefore, to be certain and the parties must have been consensus ad idem. The burden of showing the stipulations and terms of the contract and that the minds were ad idem is, of course, on the plaintiff. If the stipulations and terms are uncertain, and the parties are not ad idem, there can be no specific performance, for there was no contract act all."

Besides, the clauses of the agreement neither can be supplemented, supplanted or substituted by extensive description in the plaint or in the oral testimony (Roop Kumar Vs. Mohan Thendani, AIR 2003 SC 2418, referred to).

9 On the basis of the aforesaid law laid down by the Hon'ble Apex court this court is of the considered opinion that specific performance of

a contract is the actual execution of the contract according to its stipulations and terms, the Courts direct the party in default to do the very thing which he contracted to do. But in the instant case if the appellant/plaintiff was ready and willing to perform his part of agreement, he did not send any notice to respondent for same purpose till filing of suit, even he did not pay the rest of amount within stipulated period of three months. He admits that he did not send any notice. He also admits in para 17 as under:-

"यह कहन सह ह कक पत वद क कब और ककस कदनक क रज स क त ए रज स र कय य म उपजस! हन ह ऐस भ$ कई दस व म&न पकरण म पस ( नह ककय ह। यह कहन सह ह कक म&न उक समपत क, गइड इन ककय ह ! उसम कक न क स0मप गन ह ऐस भ$ कई दस व पकरण म पस ( नह ककय ह। म&न पत वद क ववरद इस आशय क, ररप0 नह क, उसक दर रपय न क पश रज स नह करवई रह ह..."

10 Although counsel for appellant contended that respondent has given possession of the suit land to appellant but same material fact is not mentioned in agreement (Ex.P-3). The appellant did not file any relevant document to show that he is in possession of the suit land after executing the agreement to sale (Ex.P-3). Therefore, appellant has failed to prove that he is in possession of the suit land. This court is of the considered opinion that appellant could not be said to be ready and willing to perform his part of the contract. Due to default of payment schedule as agreed to, the agreement stands rescinded on its own. He has made incorrect statement that possession has been handed over to him at

the time of execution of said agreement. Therefore, appellant/plaintiff has failed to prove his case. The trial court as well as first appellate court elaborately discussed the aforesaid fact in their judgment.

11. The findings recorded by the Courts below are the concurrent findings of facts. Learned counsel for the appellants/defendant has failed to show that how the findings of fact recorded by the Courts below are illegal, perverse or based on no evidence. Thus, no substantial question of law arises for consideration in present second appeal.

12. The enunciation of law by the Hon'bleApex Court in the case of Hari Narayan Bansal Vs. Dada Dev Mandir Prabandhak Sabha (Barah Gaon) Patam, reported in (2015) 16 SCC 540 empowers this Court to finally dispose of this appeal without framing the substantial questions of law at the admission stage itself. The observation made by Hon'ble Supreme Court is reproduced hterein below :-

"In our opinion, a substantial question of law is not required to be framed if the High Court decides to dismiss the second appeal at an admission stage. Only in a case where the second appeal is admitted or is decided finally by allowing the same, a substantial question of law is required to be framed by the High Court. In the instant case, no substantial question of law was involved in the second appeal and therefore, the High Court had rightly dismissed the second appeal at the admission stage by passing the impugned order. We, therefore, see no reason to entertain this Petition."

13 The Supreme Court in number of cases has held that in exercise of powers under Section 100 of the Code of Civil Procedure can interfere with the findings of fact only if the same is shown to be perverse and based on no evidence. Some of these judgments are

Hajazat Hussain vs. Abdul Majeed & others, 2011 (7) SCC, 189, Union of India vs. Ibrahim Uddin, 2012 (8) SCC 148 and Vishwanath Agrawal vs. Sarla Vishwanath Agrawal, 2012 (7) SCC

288.

14 Accordingly, present second appeal sans merit and is hereby dismissed at the admission stage for the reasons indicated above.

Certified copy as per rules.

(ANIL VERMA) JUDGE BDJ

BHUNESHWAR DATT 2024.05.04 11:35:03 +05'30'