MATHEW Vs. SCARIA

JUDGEMENT

(1.) The plaintiff is the appellant. Defendants 1 and 2 are the respondents in this appeal. The appeal has arisen against the judgment delivered by the Subordinate Judge, Kottayam, in A.S. No. 188/85 dated 20-7-1988. The appellant-plaintiff filed the suit in O.S. No. 217/84 before the Court of the Munsiff, Palai on the following grounds for the specific performance. Suit property measuring 3.5 cents originally belonged to the first defendant who is none other than his grandfather. The first defendant executed Ext. A1 agreement in his favour on 1-8-1984 agreeing to sell the property for a sum of Rs. 5000/- out of which on the date of Ext. A1 agreement he received Rs. 2500/- as advance. The first defendant instead of executing the sale deed in his favour attempted to sell the property to the second defendant. Therefore the plaintiff was constrained to file O.S. No. 217/84 before the same Court in which an interim injunction was granted against the first defendant and subsequently it ended in dismissal. The plaintiff issued notice to the first defendant requiring him to execute the sale deed as per the Ext. A1 agreement. On receipt of the notice the first defendant did not send any reply. Therefore the plaintiff filed the above suit for the purpose stated above. The suit was resisted by both the defendants by filing a written statement contending that the first defendant has not executed any agreement for sale such as Ext. A1 in favour of the plaintiff, nor did he receive any advance amount of Rs. 2500/-. The plaintiff being his grand son managed to get the original documents of the suit property from his wife who is examined as P.W. 2. The first defendant sold the suit property in favour of the second defendant on 15-10-1984 and the second defendant in pursuance of the sale deed executed by him is in possession of the suit property. Therefore the suit is liable to be dismissed. The second defendant who was latter on brought on record filed a written statement reiterating the contentions of the first defendant in the written statements. Before the trial Court no evidence either oral or documentary was let in on the side of the defendants. On the side of the plaintiff, he has given evidence as P.W. 1, the first defendant's-wife has given evidence as P.W. 2, and the scribe of Ext. A1 agreement has given evidence as P.W. 3. In addition to the oral evdience Ext. A1 agreement and the prior title deed of the suit property Exts. A2 and A3 were marked. The trial Court on examining the evidence available on records on the side of the plaintiff decreed the suit for specific performance. Questioning the above judgment and decree of the trial Court the defendants 1 and 2 filed the above appeal A.S. No. 188/85 before the Subordinate Judge, Kottayam.

(2.) The Subordinate Judge on going through the evidence let in on both the sides as well as the judgment of the trial Court came to a conclusion that for Ext. A1 is styled as a receipt, it is not an agreement and further S. 16(3) of the Specific Relief Act, 1963 is not complied with by the plaintiff in the suit and therefore the suit is liable to be dismissed. Accordingly he allowed the appeal by reversing the judgment and decree of the trial Court. The points that were urged before me by both the learned counsel would be 1) Whether Ext. A1 is an agreement or a receipt. 2) Whether S. 16(c) of the Specific Relief Act is complied with by the plaintiff.Points 1 and 2 :

(3.) No doubt as argued by the learned counsel for the respondents whether Ext. A1 is a receipt or it is an agreement is to be decided. Regarding the execution of the Ext. A1, no doubt, we have got the clear evidence of P.Ws. 1 to 3. P.W. 2 as pointed out above is none other than the wife of the first defendant and grandmother of the plaintiff. She speaks of the Ext. A1 and receipt of the advance amount of Rs. 2500/- by the first defendant on that particular date. So when I examined the argument of the learned counsel appearing for the respondents with reference to the Ext. A1, namely, whether it is an agreement or receipt along with findings recorded by the first appellate Court in para 9 of the judgment, I feel that the finding in para 9 of the judgment of the first appellate Court needs no interference in this regard. Therefore it can be held that there is an agreement between the parties concerned. The next point would be whether S. 16(c) of the Specific Relief Act is complied with. Section 16(c) reads as follows :"Personal bars to relief- Specific performance of a contract cannot be enforced in favour of a person,-(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant."