Madras High Court
Rajaraman vs Arumugam on 30 November, 2021
S.A.No.269 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
S.A.No.269 of 2012
and M.P.No.1 of 2012
Rajaraman ... Appellant/Plaintiff
Vs.
1.Arumugam
2.Lakshmanan ... Respondents/Defendants
PRAYER: This Second Appeal has been filed under Section 100 of CPC
against the judgment and decree passed in A.S.No.45 of 2010, by the
learned Subordinate Judge, Chidambaram, dated 28.04.2011, confirming
the judgment and decree passed in O.S.No.5 of 2006, by the District
Munsif cum Judicial Magistrate Court, Parangipettai, dated 28.09.2010.
For Appellant : Mr.A.Muthukumar
For R1 : Died
For R2 : No appearance
JUDGMENT
Notice of motion alone was ordered in this Second Appeal.
2.The unsuccessful plaintiff is the appellant herein.
3.This Second Appeal has been filed against the judgment and
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S.A.No.269 of 2012
decree passed in A.S.No.45 of 2010, by the learned Subordinate Judge,
Chidambaram, dated 28.04.2011, wherein, the learned Judge has
confirmed the judgment and decree passed in O.S.No.5 of 2006, by the
District Munsif cum Judicial Magistrate Court, Parangipettai, dated
28.09.2010.
4.For the sake of convenience the parties are referred to as per their
litigative status before the trial Court.
5.Brief facts of the case are as follows:
(a)The plaintiff has filed a suit in O.S.No.5 of 2006, before the
learned Subordinate Judge, Chidambaram, for specific performance of
Ex.A2/Sale Agreement. The first defendant, who is the vendor, original
owner of the property has filed a written statement by stating that he has
already sold the property to the second defendant and hence, the second
defendant was also impleaded as a party. Thereafter, both the defendants
have filed separate written statements alleging that that the plaintiff is not
ready and willing to perform his contract and hence, the suit property was
sold by the first defendant to the second defendant.
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S.A.No.269 of 2012
(b)During the course of trial, on behalf of the plaintiff PW1 to PW3
were examined and Exs.A1 to A7 were marked; on behalf of the
defendants DW1 & DW2 were examined and Exs.B1 to B6 were marked;
Court documents Exs.C1 & C2 were also marked.
(c).After going through the oral and documentary evidences, the
Trial Court, by an order dated 28.09.2010, has dismissed the said suit.
Aggrieved against the dismissal order, the plaintiff has preferred an
appeal suit in A.S.No.45 of 2010, before the learned Subordinate Judge,
Chidambaram, wherein, the learned Judge by an order dated 28.04.2011,
has dismissed the appeal by confirming the Judgement and decreed
passed by the Trial Court. Hence, the Second Appeal.
6.Heard the learned counsel for the appellant through video
conference and perused the materials placed on record.
7.Mr.A.Muthukumar, the learned counsel for the appellant would
contend that both the Courts below are erred in rejecting Ex.A2/Sale
Agreement, on the basis of Ex.B5/copy of the sales register given by the
District Registrar, when no one was examined in support of it and
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S.A.No.269 of 2012
Registration Department was not authorised to issue the same.
8.Though PW1 could said that he was in a possession of the suit
property, however I find that the pleadings and the evidence of PW1 are
to the effect that the specific performance relief sought for only based
upon Ex.A2/Sale Agreement dated 01.07.2003 not on Ex.A1/Sale
Agreement entered between the first defendant(original owner) and the
father of the plaintiff, assumes significance.
9.On a perusal of the records, it is seen that as per Ex.A1/Sale
Agreement, dated 07.06.1971, an agreement was entered between the
first defendant and the father of the plaintiff and the sale consideration at
Rs.1,800/- and the same was paid by the father of the plaintiff. It is the
further case of the plaintiff that Ex.A2/Sale Agreement was entered
between the first defendant and the plaintiff is on 01.07.2003 and the sale
consideration at Rs.4,700/- and the plaintiff alleged to have been paid a
sum of Rs.3,700/- whereby, the earlier amount of Rs.1,800/- was adjusted
and balance amount of Rs.1,000/- has to be paid. Thereafter, the suit was
filed on 08.04.2005 namely after one year ten months of the sale
agreement and there is no pleadings or evidence to the fact that
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S.A.No.269 of 2012
PW1/plaintiff is ready and willing to perform his part of the contract in
respect of Ex.A2/Sale Agreement. Both the Courts below have relied
upon Ex.B5/Copy of the Sales Register issued by the District Registrr and
came to the conclusion that Ex.A2/Sale Agreement is forged document
and fabricated for the purpose of filing of the above said suit.
10.Further, the records reveals the fact that when the written
statement was filed by the defendants 1 & 2 alleging that Ex.A2/Sale
Agreement dated 01.07.2003 is fabricated document, it appears that the
learned District Munsif has addressed letter to the District Registrar
(Admin) calling for the details of the stamp paper, wherein, Ex.A2/Sale
Agreement was came into force. As per the pleadings and the writing
recitals in Ex.A2/Sale Agreement, the agreement said to have been
entered on 01.07.2003. As per the communication under Ex.B5/copy of
the Sales Register issued by the District Registrar Admin, Chidambaram,
the Stamp Paper itself sold only on 01.12.2003 through the stamp vendor
T.K.Kajamoideen, Parangipettai Village and it was purchased by the
plaintiff viz., R.Rajaraman and it is clear that the agreement between the
parties alleged to have been on 01.07.2003 could not have been possible
and accordingly both the Courts below have held that Ex.A2/Sale
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S.A.No.269 of 2012
Agreement is a fabricated document.
11.After going through the evidence of PW1 and also taking note
of the pleadings therein, I find that both the Courts below have rightly
come to the conclusion that the plaintiff has not pleaded his ready and
willingness as contemplated under the Specific Relief Act and his
evidence is also lacking as to why he has waited for more than one and
half years for institution of the suit.
12.Further, on proper appreciation of both the oral and
documentary evidence, both the Courts below have rightly come to the
conclusion that the plaintiff having failed to prove the ready and
willingness on his part and have negatived the specific relief of
Ex.A2/Sale Agreement. Specific performance of an agreement cannot be
granted merely for asking the plaintiff to demonstrate his readiness[ready
with money] and his willingness[willing to buy the property]. In the
absence of any positive evidence to show both the essential elements of
Section 16(3) of the Specific Relief Act, both the Courts below have
rightly negatived the claim. This Court has no hesitation to reject the plea
raised by the learned counsel for the appellant.
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S.A.No.269 of 2012
13.No substantial questions of law has been arised for
consideration in this Second Appeal.
14.Accordingly, this Second Appeal stands dismissed. The
judgment and decree passed in A.S.No.45 of 2010, by the learned
Subordinate Judge, Chidambaram, dated 28.04.2011, confirming the
judgment and decree passed in O.S.No.5 of 2006, by the District Munsif
cum Judicial Magistrate Court, Parangipettai, dated 28.09.2010, is
hereby confirmed. Consequently, connected miscellaneous petition is
closed. No costs.
30.11.2021
Internet : Yes
dua
To
1.The Sub-Court, Chidambaram.
2.The District Munsif cum Judicial Magistrate Court,
Parangipettai.
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S.A.No.269 of 2012
RMT.TEEKAA RAMAN, J.
dua
S.A.No.269 of 2012
and M.P.No.1 of 2012
30.11.2021
https://www.mhc.tn.gov.in/judis
