IMAMSAHEB Vs. SMT. SAROJINI

JUDGEMENT

(1.) THIS Regular Second appeal is filed by the Plaintiff questioning the legality and validity of the judgment and decree dated 3.3.1999 passed in Regular Appeal No. 5 of 1998 by the I Additional District Judge, Bijapur, in setting aside the judgment and decree dated 31.1.1998 passed in O.S. No. 146 of 1996 by the Additional Civil Judge (Senior Division), Jamakhandi, framing five substantial questions of law in the memorandum of appeal and urging various grounds in support of the same.

(2.) FOR the sake of convenience, parties are referred to in this judgment as per their ranking before the trial Court.

(3.) THE brief facts which are necessary for the purpose of considering and answering the substantial question of law framed by this Court are stated as hereunder: Plaintiff filed the suit for grant of judgment and Decree of specific performance in his favour against the Defendant directing Defendant to execute the sale deed in favour of the Plaintiff in respect of the suit shop premises; and also for grant of permanent injunction against the Defendant prohibiting her from dispossessing the Plaintiff from the suit shop premises till the execution of the sale deed and in the alternative to direct the Defendant to pay Rs. 25,000/ - being the purchase money and Rs. 55,000/ - by way of damages together of Rs. 75,000/ - to the Plaintiff in case, the plea of specific performance is disallowed by the Court and further to award future interest on Rs. 75,000/ - from the date of decree till the date of realisation. The case of the Plaintiff is that the suit shop belonged to late Sri Ganesh s/o. Narayana Vaidya of Jamakhandi, after his death, the succession has devolved upon the Defendant, who being the widow represents the estate as the Manager of the Joint Family; the suit shop was given to him on lease wherein he is running his business of repairing and hiring of bicycles; in HRC No. 39 of 1977 the order of eviction was passed against him by the learned Munsiff, Jamakhandi, at instance of the Defendant which order came to be confirmed in Civil Revision Petition No. 1627 of 1984 by this Court; despite the fact the Defendant is allowed to take possession of the suit shop, negotiations were held between the parties for about 10 years, thereby the tenancy of the Plaintiff was given a fresh lease of confirmation of possession of the suit premises, by an agreement of sale dated 2.1.1996 executed by the Defendant in his favour; under the said agreement the Defendant has agreed to sell the shop premises for a valuable consideration of Rs. 75,000/ - and on the very same day, Defendant received a sum of Rs. 20,000/ - as an earnest money from him; the stipulated period was fixed as 31.3.1996 for performance of the terms of the contract by the Plaintiff. However, Defendant extended the period upto the month of August, 1996, subject to payment of interest at 2% per month on the sale consideration amount; and as such he has stayed as a tenant of the suit shop became that of a prospective buyer with confirmation of possession casting relative liability on the Defendant to abandon the eviction decree obtained by her in the HRC proceedings stated supra; that he was ever ready and willing to perform his part of the agreement since 2.1.1996; that he requested the Defendant in the month of September 1996 to fix the date for execution of the sale deed; due to the sudden demise of Sri K.A. Parulekar, Advocate, Defendant asked him to wait for some time; believing the same, he was waiting for the response from the Defendant; thereafter, he came to know that in blatant violation of the agreement, the Defendant was pressing the execution petition for possession of the suit premises and as such he has filed the suit seeking for the reliefs as stated supra.