DHANSUKHLAL RAMBHAI PATEL Vs. DHANSUKHLAL NAGINDAS KAPADIA

JUDGEMENT

(1.) The original defendant have filed this Second Appeal under Sec. 100 of the Code of Civil Procedure being aggrieved and dissatisfied by the judgment and decree dtd. 12/1/1990 passed by the learned Assistant Judge, Valsad at Navsari in Regular Civil Appeal No.86 of 1985. The appellant is original defendant and respondent is plaintiff before the Trial Court. For the brevity and convenience, the parties are referred to in this judgment, as per the character assigned to them, before the Trial Court i.e. defendant and plaintiff.

(2.) The defendant has contended that the appellate Court has erred in holding that the plaintiff has proved execution of agreement to sell dtd. 23/8/1979 at exhibit 29. It is also contended that the Trial Court has rightly dismissed the suit of the plaintiff which ought not to have been interfered with by the First Appellate Court. It is also contended that the Appellate Court has erred in law in passing the decree of specific performance of the contract. It is also contended that the Appellate Court has erred in holding that in a suit for specific performance only those defense could be taken which are available under the provisions of the Specific Relief Act, 1963. It is also contended that the First Appellate Court has failed to appreciate facts of disability of the defendant and the defense raised by the defendant that he has never entered into any agreement to sell and that the plaintiff has taken advantage of defendants blindness and has used his signature for creating a document in his own favour. According to the defendants, the First Appellate Court ought to have accepted the defense of the defendant and ought not to have passed the impugned judgment and decree against the defendant. It is also contended that merely because the suit against the defendant no.2 remained exparte was not a proper ground for passing the impugned judgment and decree by the First Appellate Court. According to him, the First Appellate Court has also erred in observing that the plaintiff has parted with Rs.2,601.00. It is also contended that the entire sale transaction is disputed by the defendant in his written statement which is not properly appreciated by the First Appellate Court. He has also contended that when the plaintiff has prayed for an alternative relief of damages then the Appellate Court ought to have given option to the defendant and ought to have not passed the decree for specific performance of the contract.

(3.) The present Second Appeal has been heard on the following questions of law:-