Madras High Court
K.N.Ramasamy vs Vijayalakshmi on 18 June, 2021
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.06.2021
CORAM :
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
S.A.No.1162 of 2007
K.N.Ramasamy ... Appellant
Vs.
1.Vijayalakshmi
2.M.Chandrasekar ... Respondents
Prayer:- This Memorandum of Second Appeal is filed under Section 100
of Civil Procedure Code against the judgment and decree dated
21.03.2007 made in A.S.No.79 of 2006 on the file of the Additional
District Court, Fast Tract Court no.4, Bhavani, Erode District confirming
the judgment and decree dated 18.08.2004 made in O.S.No.397 of 2004
on the file of the II Additional District Munsif, Bhavani.
For Appellant : Mr.T.Dhanyakumar
For Respondents : Mr.Ramesh Kumar for
M/s.Duraisamy
https://www.mhc.tn.gov.in/judis/
2
JUDGEMENT
The Second Appeal has been filed by the appellant challenging the
concurrent findings of the Courts below.
2.The appellant filed a suit for specific performance for an
Agreement of Sale dated 31.10.1995 allegedly entered into between him
and the defendant by which the defendant has alleged to have agreed to
sell a portion of the suit property to the plaintiff. According to the
appellant/plaintiff, he paid an advance of Rs.80,000/- out of the total
sale consideration of Rs.1 lakh to the respondent/defendant and despite
his readiness and willingness, the respondent/defendant failed to execute
the sale deed in his favour. However, it is the case of the
respondent/defendant as seen from the written statement that she never
executed any sale agreement in favour of the plaintiff, and it was only
the respondent /defendant's husband brother who had borrowed money
from the appellant/plaintiff. The respondent/defendant has also disputed
the endorsement allegedly made by her on 02.10.1996 agreeing to extend
the time for the performance of the agreement of sale by the
https://www.mhc.tn.gov.in/judis/
appellant/plaintiff to 31.01.1999. According to the respondent/defendant,
the endorsement which the appellant/plaintiff claims to have made by the
respondent/defendant rank forgery.
3. Before the trial Court, the appellant/plaintiff filed 6 documents
which were marked as Ex.A1 to Ex.A6 and 4 witnesses were examined
on his side namely PW1 to PW4. On the side of the
respondent/defendant, one document was filed, which was marked as
Ex.D1 and three witnesses were examined namely DW1 to DW3. The
trial Court, after giving due consideration to the materials and the
evidence available on record has dismissed the suit filed by the
appellant/plaintiff by its judgment and decree dated 18.08.2004 on the
ground that the suit is barred by the law of limitation as well as on the
ground that the appellant/plaintiff has miserably failed to establish that
the Agreement of Sale dated 03.10.1995 alleged to have executed by the
respondent/defendant in favour of the appellant/plaintiff, which was
marked as Ex.A1, was executed by the defendant. The trial Court has
also after giving due consideration to the materials and evidence
available in record has also given a finding that the appellant/plaintiff has
https://www.mhc.tn.gov.in/judis/
failed to prove that the endorsement dated 02.10.1996 allegedly made by
the respondent/defendant which was marked as Ex.A2 was executed by
the respondent / defendant in favour of the appellant. Aggrieved by the
dismissal of the suit in O.S.No.397 of 2004 by the trial Court, the
appellant/plaintiff filed the first appeal before the lower Appellate Court
in A.S No.79 of 2006. The lower Appellate Court after giving due
consideration to the materials and evidence available on record as well as
the findings of the trial Court has dismissed the Appeal confirming the
findings of the trial Court. Aggrieved by the dismissal of A.S.No.79 of
2006 by the lower Appellate Court, the present Second Appeal has been
filed by the appellant/plaintiff.
4. This Court has perused the materials and evidence available on
record as well as the judgments of the Courts below. This Court under
Section 100 CPC cannot re-appreciate the evidence when the Courts
below, based on the materials and evidence available on record have
correctly rejected the claim of the appellant/plaintiff and have
concurrently held that the appellant/plaintiff has not proved his case that
there was an agreement of sale between him and the
https://www.mhc.tn.gov.in/judis/
respondent/defendant and there was also an endorsement made by the
respondent/defendant granting extension to the appellant/plaintiff to
perform his part of the agreement of sale. The specific performance
relief being a discretionary relief and that too when two Courts have
concurrently held that the appellant/plaintiff based on the materials and
evidence available on record are not entitled for the said relief, this Court
under Section 100 Code of Civil Procedure cannot re-appreciate the
evidence and reverse the findings of the Courts below. There is
absolutely no substantial question of law involved in the Second Appeal
as there are no debatable issues of law, which requires further
consideration by this Court. This Court does not find any merit in this
Second Appeal and the substantial questions of law raised by the
appellant in the grounds of the Appeal, will not come within the
parameters under Section 100 CPC.
5. Accordingly, the Second Appeal is dismissed. No costs.
18.06.2021
dn
https://www.mhc.tn.gov.in/judis/
ABDUL QUDDHOSE.J.,
dn
To
1. Additional District Court, Fast Tract Court no.4,
Bhavani, Erode District
2. II Additional District Munsif, Bhavani.
S.A.No.1162 of 2007
18.06.2021
https://www.mhc.tn.gov.in/judis/
