Madras High Court
Kaliammal vs Gunasekaran on 19 September, 2025
S.A.No.432 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 23.07.2025
Pronounced on 19.09.2025
CORAM
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
S.A.No.432 of 2019 and
C.M.P. No.6595/2019
1. Kaliammal
2. Marimuthu
3. Palaniappan
4. Saroja ...Appellants
Vs.
Gunasekaran ...Respondent
Prayer : Second Appeal filed under Section 100 CPC, 1908 against the
decree and judgment dated 09.10.2018 passed in A.S. No.3 of 2011, on
the file of the Principal Subordinate Judge, Namakkal, confirming the
Judgment and decree dated 26.10.2010 passed in O.S. No.888 of 2004, on
the file of the Additional District Munsif Court, Namakkal.
For Appellants : Mr.T.Dhanyakumar
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S.A.No.432 of 2019
For Respondent : Mr.S. Mukunth, Senior Advocate
for Ms.T.R.Gayathri
for M/s. Sarvabhauman Associates.
JUDGMENT
In this Second Appeal, challenge is made to the decree and
judgment dated 09.10.2018 passed in A.S. No.3 of 2011, on the file of
the Principal Subordinate Judge, Namakkal, confirming the Judgment
and decree dated 26.10.2010 passed in O.S. No.888 of 2004, on the file of
the Additional District Munsif Court, Namakkal.
2. For the sake of convenience the parties are referred to as per
their ranking in the trial court.
3. The defendants in O.S. No.888 of 2004 on the file of the
Additional District Munsif, Namakkal, are the appellants in the present
appeal. The respondent/plaintiff filed the above suit for specific
performance directing the defendants 1 to 3 to execute the sale deed in
favour of the plaintiff after receiving the balance sale consideration
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failing which the court to execute the sale deed and for permanent
injunction restraining the defendants, their men from interfering or
obstructing plaintiff's peaceful possession and enjoyment and for
alternative relief directing the defendants 1 to 3 to repay the sale
consideration of Rs.45,000/- to the plaintiff and for costs.
4. The Case of the Plaintiff in brief is that the Suit Property
belonged to the Defendants 1 to 3. The Plaintiff entered into a Sale
Agreement with Defendants 1 to 3 on 22.08.1994 for purchase of the Suit
Property for Rs.50,000/- and paid Rs.45,000/- as Advance Sale
Consideration to them. The balance amount Rs.5,000/- was decided to be
paid while executing the Sale Deed. The Defendants 1 to 3 handed over
the Possession of the Suit Property to the Plaintiff and the Plaintiff is in
Possession of the Suit Property from the date of Sale Agreement and
residing in the Suit Property by paying Tax. The Plaintiff was always
ready and willing to perform his part of the Contract and he approached
the Defendants 1 to 3 on 09.06.2003 for execution of Sale Deed. But the
Defendants 1 to 3 demanding more amount, as the value of the Suit
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Property has increased, refused to execute Sale Deed in favour of the
Plaintiff. The Defendants 1 to 3 executed Sale Deed in favour of the 4th
Defendant and so the 4th Defendant is impleaded as a party to the Suit.
The Sale in favour of the 4th Defendant is not valid and the same is not
binding on the Plaintiff. The Defendants are disturbing the Possession of
the Plaintiff in the Suit Property. So the Plaintiff has filed the Suit for
Specific Performance of Contract and for Permanent Injunction against
the Defendants.
5. The claim of the plaintiff was resisted by the 4 th Defendant,
which was adopted by the Defendants 1 to 3, by stating that the
averments that the Defendants 1 to 3 entered into a Sale Agreement with
the Plaintiff and received Rs.45,000/- as advance are utter false. As there
is no connection between the Plaintiff and the Suit Property, the averment
that he is residing in the Suit Property by paying Tax is false. The
averments that the Plaintiff met the Defendants on 09.06.2003 and the
Defendants demanded more amount are also false. The 4th Defendant
purchased the Suit Property on 07.10.2002 for Rs.32,000/- from the
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Defendants 1 to 3 and Minor Sons of the Defendants 2 and 3. The
Partition Deed was also handed over by the Defendants 1 to 3 to the 4 th
Defendant and the possession of the Suit Property is with the 4th
Defendant. The alleged Sale Agreement is a forged document. After the
suit, the Defendants 1 to 3 have informed to the 4th Defendant that they
never executed any Sale Agreement. Even if the Sale Agreement is true, it
is not binding on the 4th Defendant as she is a bonafide purchaser for
valuable consideration without notice. The Plaintiff has put some of his
things in the Suit Property after taking Possession of the Suit Property by
the 4th Defendant and on Police Complaint, the Plaintiff accepted to
vacate the Suit Property. So the alleged Possession claimed by the
Plaintiff is false. The Plaintiff is residing near the Suit Property and
attempting to grab the Suit Property. The Suit is barred by Limitation.
The Plaintiff is not entitled to any reliefs. So there is no cause of action in
the Suit. Hence the Suit is liable to be dismissed with costs.
6. Based on the above pleadings, evidence and arguments advanced
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by the respective counsel, the trial court, vide its decree and judgment
dated 26.10.2010, decreed the suit by granting the relief of specific
performance contract. Aggrieved by this, the defendants have preferred
the appeal suit in A.S. No.3 of 2011 before the learned Principal
Subordinate Judge, Namakkal. The first appellate court also dismissed the
appeal suit vide its decree and judgment dated 09.10.2018 confirming the
judgment and decree passed by the trial court. Assailing the said
judgment and decree, the present second appeal is preferred by the
defendants.
7. The second appeal has been admitted on the following
substantial questions of law:
i. "While the suit is of the year 2003, without written demand for
specific performance of an agreement dated 22.08.1994, can it be
said to be within time?
ii. Whether the plaintiff as proved that he has been ready and willing
to perform his part of the contract throughout the contract
period,i.e. from the year 1994 til 2003?
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iii. Whether the plaintiff is not guilty of laches?"
8. The learned counsel appearing for the appellants/defendants
submits that the respondent/plaintiff has approached the Court with
unclean hands and that Ex.A1 agreement is a fabricated document. His
further contention is that the limitation to file a suit under Article 54 of
the Limitation Act, 1963, is three years. The suit agreement is dated
22.08.1994 and the period of three years expired on 22.08.1997. But the
suit was filed on 26.06.2003. Hence, the suit was clearly barred by
limitation. The courts below erroneously held that the period of
limitation commences from the date of demand and failed to note that if
no time limit is prescribed under Ex.A1 agreement, the date of agreement
alone would be crucial factor for deciding the question of limitation. The
learned counsel further submits that, even according to the averments in
the plaint, the plaintiff has made demand for the first time only on
09.06.2003 against the appellants/defendants 1 to 3 for execution of the
sale deed. However, the same was not proved by the plaintiff. No legal
notice was issued prior to filing of suit and the plaintiff has not given
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sufficient reason as to why he waited for 9 years having paid a sum of
Rs.45,000/- out of the total consideration of Rs.50,000/- and the balance
amount to be paid is only Rs.5,000/-. The plaintiff failed to approach the
court within a reasonable time and waited for 9 years for filing the above
suit. Hence the suit ought to have been dismissed on the ground of
laches. He would further submit that there is no pleading with regard to
readiness and willingness of the plaintiff from the date of Ex.A1 sale
agreement. The plaintiff failed to aver and prove that he is always ready
and willing to perform his part of contract. The learned counsel further
submits that Ex.A1 sale agreement is a forged and created document
which is evident from the conflicting statement given by P.W.1 to P.W.4.
Since the 4th defendant has purchased the suit property under Ex.B1, the
plaintiff is not entitled for the specific relief. The 4th defendant is a
bonafide purchaser for value under Ex.B1. Hence the courts below ought
to have dismissed the suit on the ground that the suit is barred by
limitation and that Ex.A1 is a forged document and also on the ground
that the plaintiff failed to aver and prove that he is always ready and
willing to perform his part of the contract. He would further submit that it
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is the duty of the plaintiff to approach at the earliest as per Article 54 of
the Limitation Act, 1963. It is his further contention that since the 4th
defendant had purchased the property from the defendants 1 to 3, the suit
ought to have been dismissed at the threshold. Since the 4th defendant,
the subsequent purchaser, pleaded that he was the bonafide purchaser for
value without notice and bought the property in good faith, the suit ought
to have been dismissed. He would further submit that the basic principle
behind Section 16(c) read with Explanation (ii) is that any person seeking
benefit of the specific performance of contract must manifest that his
conduct has been blemishless throughout, entitling him to specific relief.
The provision imposes a personal bar. The court is to grant relief on the
basis of the conduct of the person seeking relief. In the present case, the
plaintiff having waited for 9 years for filing a suit for specific
performance, is not entitled to get the relief of specific performance. In
support of his contentions, he relied on the following judgments.
i. Judgment of this court in the case of J. Baskaran vs. T. Pappa
(S.A. No.710 of 2011).
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ii. B. Vijaya Bharathi vs. P. Savitri & others reported in CDJ 2017
SC 953.
iii. A.S.M. Balasubramanian vs. S.P. Swaminathan reported in
2012-2-L.W. 917.
iv. P. Retnaswamy vs. A. Raja and another reported in 2008 (3)
CTC 1.
v. Pappammal @ T. Pappa vs. P. Ramasamy reported in 2012-4-L.W.
vi. K. Nirmala vs. Sellamuthu reported in 2014-4-LW72
9. On the other hand, the learned counsel for the
respondent/plaintiff submits that the defendants failed to establish that
Ex.A1 sale agreement is a forged document and that Ex.C1 Expert's
opinion is not the sufficient piece of evidence. He would further submit
that except for the 4th defendant, who is the subsequent purchaser, the
defendants 1 to 3 failed to appear and adduce evidence in respect of
Ex.A1 sale agreement. Moreover, the 4th defendant deposed that he has
no objection in decreeing the suit in favour of the plaintiff. Hence,
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presumption is that the case set out by the defendants is false. On the
other hand, the plaintiff has proved the execution of Ex.A1 sale
agreement by examining the witness to the documents. Hence, the courts
below has rightly granted the relief of specific performance in favour of
the plaintiff, which warrants no interference by this Court.
10. Heard on both sides. Records perused.
11. At the outset, the learned counsel for the appellants/defendants
submits that the courts below erred in decreeing the suit in favour of the
plaintiff applying Article 54 of the Limitation Act, holding that in the
absence of any specific date for performance of the contract, the relief of
specific performance has to be sought from the date of denial of
execution. Therefore, the suit is not barred by limitation. It was urged
that the courts below committed a serious error in law by applying Article
54 of the Limitation Act, to grant the relief of specific performance in
favour of the respondent/plaintiff. Thus the defendants have raised the
question of limitation on the basis of the fact that Ex.A1 agreement of
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sale was dated 22.08.1994 and the suit was filed only on 26.06.2003,
which is beyond the period of 3 years from the date of execution of sale
agreement. It is submitted that the date of agreement alone would be a
crucial factor for deciding the question of limitation and not the date of
denial of execution of sale deed.
12. As a matter of fact, the limitation for filing a suit for specific
performance in terms of Article 54 of the schedule to the Limitation Act,
1963, is 3 years "from the date fixed for performance or if no such date is
fixed when the plaintiff has notice that the performance is refused".
Admittedly under Ex.A1 there is no mention about the time to fulfill the
contract to execute the sale deed. In the present case, though the original
date of agreement is 22.08.1994, the plaintiff approached the defendants
1 to 3 demanding them to execute the sale deed on 09.06.2003 and the
same was denied by the defendants 1 to 3, the suit was filed on
26.06.2003 is well within the period of 3 years.
13. Though the defendants would contend that Ex.A1 is a
fabricated document, the defendants 1 to 3 failed to appear and adduce
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evidence before the trial court and state their case on oath and offer
themselves for cross examination by the other side. Hence, the courts
below rightly held that presumption could be drawn against them that
case set up by the defendants is incorrect. The possession of 4th defendant
in the suit property is not proved. It is the specific case of the plaintiff
that he is in possession of the suit property and that he was always ready
and willing to perform his part of contract. Since the defendants 1 to 3
failed to appear and rebut the above contention of the plaintiff, the
presumption is that the plaintiff was always ready and willing to perform
his part of contract. Therefore, the judgments relied upon by the
appellants/defendants is not applicable to the facts and circumstances of
this case. No infirmity or perversity is found in the findings of the courts
below which warrants interference by this court. Therefore, I do not see
any question of law much less a substantial question of law in order to
enable me to entertain this appeal.
14. In the result,
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i. The Second Appeal is dismissed. No costs. Consequently
connected miscellaneous petition is closed.
ii. The decree and judgment dated 09.10.2018 passed in A.S. No.3 of
2011, on the file of the Principal Subordinate Judge, Namakkal,
confirming the Judgment and decree dated 26.10.2010 passed in
O.S. No.888 of 2004, on the file of the Additional District Munsif
Court, Namakkal, is upheld.
19.09.2025
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
bga
To
1. The Principal Subordinate Judge, Namakkal
2. The Additional District Munsif Court, Namakkal,
3. The Section Officer, VR Section, High Court, Madras.
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K.GOVINDARAJAN THILAKAVADI,J.
bga
Pre-delivery judgment in
S.A.No.432 of 2019 and
19.09.2025
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