Madras High Court
Thiyagarajan vs Krishnamoorthy on 28 April, 2022
S.A.(MD)No.560 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.04.2022
CORAM:
THE HON'BLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD) No.560 of 2010
Thiyagarajan .. Appellant/3rd Respondent/
3rd Plaintiff
-vs-
1.Krishnamoorthy .. Respondent/Appellant/
Defendant
Kaliyaperumal (Died)
2.Lakshmi ..Respondent/2nd Respondent/
2nd Plaintiff
Prayer :- Second Appeal filed under Section 100 of Civil Procedure Code
to set aside the judgment and decree in A.S.No.65 of 2007 on the file of
the Principal Subordinate Judge, Thanjavur dated 09.12.2009 filed
against the judgment and decree passed in O.S.No.139 of 2003 on the file
of the District Munsif, Thiruvaiyaru dated 28.03.2007.
For Appellant : Mr.V.Chandrasekar
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S.A.(MD)No.560 of 2010
For R1 : Mr.S.Prabhu
For R2 : No appearance
*******
JUDGMENT
The 3rd plaintiff in O.S.No.139 of 2003 on the file of the District
Munsif Court, Thiruvaiyaru is the appellant in this second appeal. The
suit was one for specific performance. The suit was originally filed by
one Kaliyaperumal and his sister Lakshmi for directing the defendant to
execute a sale deed conveying the suit property in favour of the 1st
plaintiff. During the pendency of the suit, Kaliyaperumal passed away
and the appellant herein got impleaded as the 3rd plaintiff in his capacity
as his legal heir.
2. The case of the plaintiffs is that the defendant had entered into
an agreement with the 1st plaintiff for selling the suit property for a sale
consideration of Rs.23,700/-. On 28.02.1990, the defendant received a
sum of Rs.12,000/- and further sum of Rs.11,300/- on 18.07.1991. What
remained to be paid was only a sum of Rs.400/-. The 1st plaintiff was put
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S.A.(MD)No.560 of 2010
in possession of the suit property and original title deed pertaining to the
suit property was also given to the 1st plaintiff. No time limit was set out
in the agreement. In the year 2000, the defendant tried to interfere with
the plaintiffs' possession. Hence the plaintiffs filed an injunction suit in
O.S.No.49 of 2000 on the file of the District Munsif, Papanasam. The
same was dismissed on the ground that it was not maintainable.
Thereafter, the present suit for specific performance was instituted. The
defendant filed writ statement controverting the plaint averments. Based
on the divergent pleadings, issues were framed. The 1st plaintiff
examined himself as P.W.1 and three other witnesses were examined on
the side of the plaintiffs. Ex.A1 to Ex.A8 were marked. The defendant
examined himself as D.W.1 and the Sub Registrar, Thiruvaiyaru was
examined as D.W.2. After considering the evidence on record, by
judgment and decree dated 28.03.2007, the trial court decreed the suit as
prayed for. Aggrieved by the same, the defendant filed A.S.No.65 of
2007 before the Principal Subordinate Court, Thanjavur. By the
impugned judgment and decree dated 09.12.2009, the first appellate
court reversed the decision of the trial court as regards the grant of
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S.A.(MD)No.560 of 2010
specific performance. It however granted the alternate relief of refund of
Rs.23,300/- with interest at the rate of 6% from the date of suit till the
date of realization. Challenging the same, this second appeal came to be
filed.
3. The second appeal was admitted on 05.07.2010 on the following
substantial questions of law:-
“(i) Whether the judgment and decree of the
first appellate court could be sustained on the mere
ground of delay in filing the suit for specific
performance that too when such plea has not been
raised in the written statement?
(ii) Whether the first appellate court is right in
exercising the discretion in favour of the defendant in
the absence of plea of waiver of abandonment?
(iii) Whether the first appellate court is right in
denying the right of specific performance on the
ground of delay when the conduct of the appellant
implying waiver or abandonment which prejudice the
first respondent are totally absent?”
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S.A.(MD)No.560 of 2010
4. The learned counsel appearing for the appellant reiterated the
contentions set out in the memorandum of grounds and called upon this
Court to answer the substantial questions of law in favour of the
appellant and set aside the impugned judgment and decree and restore the
decision of the trial court.
5. Per contra, the learned counsel appearing for the 1st respondent
submitted that the impugned judgment and decree do not call for any
interference.
6. The learned counsel for the 1st respondent raised primarily two
contentions viz.,
(i) the suit is hopelessly barred by limitation. Even according to
the appellant, the suit agreement is dated 28.02.1990 and 18.07.1991.
The suit in question was filed in the year 2003. Even though the
defendant denied the genuineness of the agreement, the fact remains that
even according to the 1st plaintiff, there was interference with his
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S.A.(MD)No.560 of 2010
possession on 03.05.2000. This date can be taken as the date of breech
or repudiation of the suit agreement. Therefore, the suit for specific
performance ought to have been filed on or before the expiry of three
years. But, in this case, the suit was filed only on 24.09.2003. It is
clearly barred by limitation.
(ii) As per Section 16(c) of the Specific Relief Act, 1963
(hereinafter referred to as “the Act” for brevity) the 1st plaintiff must aver
and prove continuous readiness and willingness to perform his part of the
contract. Though the statute has been amended, even now, the plaintiff is
called upon to prove his continuous readiness and willingness. In this
case, a mere look at the deposition of P.W.2 would show that the 1st
plaintiff was never ready and willing to conclude the transaction.
Therefore, the requirement of Section 16(c) of the Act has not at all been
fulfilled in this case. The learned counsel pointed out that it is only for
these twin reasons, the first appellate court interfered with the decision of
the trial court.
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7. The learned counsel for the 1st respondent relied on the decision
reported in 2003-2-L.W. 98 [Suryagandhi vs. Lourduswamy] and an
unreported decision rendered on 20.01.2017 in S.A.(MD) No.511 of
2011. The learned counsel pointed out that the factual matrix obtaining
in S.A.(MD) No.511 of 2011 comes astonishingly close to the case on
facts. He also added that since the plaintiffs had earlier filed an
injunction suit and lost the same and since they did not get any leave for
withdrawal with liberty to file fresh suit, the present suit for specific
performance is squared barred under Order II Rule 2 of Civil Procedure
Code (hereinafter referred to as “CPC” for brevity). He also would add
that the relief of specific performance is essentially a discretionary
remedy. Here is a case where the plaintiffs had moved the court a full 12
years after the agreement was originally entered into. According to him,
such a person does not deserve any indulgence at the hands of this Court.
He called upon this Court to confirm the decision of the first appellate
court and dismiss the second appeal.
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S.A.(MD)No.560 of 2010
8. I carefully considered the rival contentions and went through the
evidence on record. Of course, the defendant had impeached the
genuineness of the suit agreement both in these proceedings as well as in
the previous suit proceedings. But, the 1st plaintiff by examining himself
and the attestors had discharged the onus cast on him to prove the suit
agreement. If according to the defendant, the signatures attributed to him
in Ex.A1 and Ex.A2 are forged, he ought to have taken steps for referring
the disputed signatures for the opinion of the handwriting expert. No
such step was taken by the defendant. In any event, the trial court had
categorically given a finding that the suit agreement had been proved. It
is true that the first appellate court interfered with the decision of the trial
court and denied the relief of specific performance, but the first appellate
court by ordering refund of the advance amount of Rs.23,300/- had also
endorsed the finding of the trial court that the suit agreement is a genuine
one and that the 1st plaintiff has proved the same. The defendant cannot
invoke Order XLI Rule 22 of Civil Procedure Code to attack the said
finding in this second appeal, because the defendant had partly lost the
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S.A.(MD)No.560 of 2010
suit. He had suffered a decree. Therefore, without filing cross appeal, he
cannot impeach the finding of the courts below regarding genuineness of
Ex.A1 and Ex.A2. I therefore, have to proceed on the footing that the
suit agreement has been proved by the appellant. The issue as to whether
the present suit is hit by Order II Rule 2 CPC need not detain me in view
of the decision of the Hon'ble Supreme Court in the case of Inbasegaran
and another vs. S.Natarajan (Dead) thr. LRs reported in (2015) 11 SCC
12. The Hon'ble Supreme Court in the said decision had held that the
suit for injunction came to be filed, since the defendant had threatened to
dispossess the plaintiffs from the suit property. Therefore, the cause of
action for filing the injunction suit and the cause of action for filing the
suit for specific performance are different and hence, Order II Rule 2
CPC is inapplicable. The earlier decision of the Hon'ble Supreme Court
in (2013) 1 SCC 625 [Virgo Industries (Eng.) (P) Ltd. vs. Venturetech
Solutions P. Ltd.] is distinguishable on facts. Respectfully following the
later decision in Inbasegaran (supra), I hold that the present suit
proceedings are not hit by Order II Rule 2 CPC.
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9. The next question that arises for consideration is whether the
suit can be said to be hit by limitation. Article 54 of the Limitation Act,
1963 states that three years is the limitation period for filing suit for
specific performance of a contract and that time would begin to run from
the date fixed for the performance or if no such date is fixed when the
plaintiff has notice that performance is refused. In this case, I went
through Ex.A2. In Ex.A2, it has been mentioned that no time limit has
been fixed. Therefore, the limitation would run when the plaintiff has
notice that the performance is refused. The learned counsel for the
respondent would want me to compute the limitation from 03.05.2000,
which has been mentioned as the cause of action for filing of the suit.
The attempt of the defendant to dispossess the plaintiffs cannot be taken
as the date when the defendant refused to perform the contract. On the
other hand, in the written statement filed in the injunction suit, the
defendant had rebutted the very existence of the suit agreement.
Therefore, it is only the date of written statement, which can be taken as
the starting point for computing the limitation. The written statement in
the injunction suit was filed in October, 2000. The present suit for
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S.A.(MD)No.560 of 2010
specific performance was filed in September, 2003 itself. Therefore, the
suit on hand cannot be said to be hit by limitation.
10. The next question that arises is whether the 1st plaintiff has
fulfilled the requirement of readiness and willingness. Here is a case
where the total sale consideration was fixed at Rs.23,700/-. The 1st
plaintiff had paid a sum of Rs.23,400/-. The first appellate court also had
directed the defendant to refund this amount with interest from the date
of the filing of the suit. Thus, the 1st plaintiff had almost completely
fulfilled his part of the contract. There was very little on his side to do.
It is also a case where the defendant had put the 1 st plaintiff in possession
of the suit property. By marking Ex.A5, the 1st plaintiff had also proved
that he is in possession of the property. The original title deed in respect
of the suit property is also with the 1st plaintiff. It is true that almost on
similar facts, a learned Judge of this Court denied the relief of specific
performance in S.A.(MD) No.511 of 2011. But, then in paragraph 38 of
the said judgment, the learned Judge had opined that the plaintiff had not
come to the Court with true facts and therefore, was not entitled for
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S.A.(MD)No.560 of 2010
discretionary relief. Section 16(c) of the Act says that the plaintiff must
aver and prove that he was continuously ready and willing to perform
essential terms of the contract. In this case, the essential terms of the
contract had already been performed by the plaintiff. Therefore, I answer
the substantial questions of law in favour of the appellant. The judgment
and decree of the first appellate court are set aside. The decision of the
trial court is restored. The second appeal is allowed. No costs.
28.04.2022
Internet : Yes/No
Index : Yes/No
Note:- In view of the present lock down
owing to COVID-19 pandemic, a web copy
of the order may be utilized for official
purposes, but, ensuring that the copy of the
order that is presented is the correct copy,
shall be the responsibility of the Advocate /
litigant concerned.
abr
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S.A.(MD)No.560 of 2010
To
1.The Principal Subordinate Judge,
Thanjavur.
2.The District Munsif,
Thiruvaiyaru.
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S.A.(MD)No.560 of 2010
G.R.SWAMINATHAN, J.
abr
S.A.(MD) No.560 of 2010
28.04.2022
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