NARANJI MAKANJI Vs. BHAGWANJI MAKANJI PATEL

JUDGEMENT

(1.) What should be the effect of inability on the part of a party approaching the Court for the equitable relief of specific performance to establish its case in toto at trial ? Will inability to establish the case in toto at trial not amount to the falsity of the case ? In such a case, should the Court grant to that party the relief of specific performance ? These are the main questions arising in this appeal preferred before this Court by original defendant No. 2 in Regular Civil Suit No. 166 of 1975 questioning the correctness of the decision given by the learned District Judge of Valsad at Navsari on 31/01/1981 in Regular Civil Appeal No. 18 of 1976. Thereby the decision given by the learned Joint Civil Judge (J.D.) at Valsad on 30/01/1978 in Regular Civil Suit No. 166 of 1975 came to be affirmed. It is needless to say that the trial Court decreed the suit for specific performance of the agreement of sale of one immovable property executed between the respondents herein on 16/11/1972. Incidentally, the parties to the litigation culminating into this second appeal are brothers.

(2.) Respondent No. 1 was the original plaintiff, respondent No. 2 original defendant No. 1 and the appellant original defendant No. 2 in the suit before the trial Court. For the sake of convenience I shall refer to them as they were arraigned in the suit proceedings.

(3.) The facts giving rise to this second appeal are not many and not much in dispute. One piece of land bearing Survey No. 98 admeasuring 1 Acre and 231/2 Gunthas situated in village Vashiar, District Valsad ('the suit land' for convenience) belonging to defendant No. 1 herein was agreed to be sold for Rs. 8,000.00 to the plaintiff. The document representing the agreement of sale was executed on 16/11/1972. It is at Exh. 93 on the record of the case ('the suit agreement' for convenience). An amount of Rs. 4,000.00 was paid on the date of the agreement and the balance amount of the consideration in the sum of Rs. 4,000.00 was agreed to be paid at the time of execution of the sale deed. No time-limit was fixed for performance of the contract. It appears that defendant No. 1 later on agreed to sell the suit land together with a small parcel of land bearing Survey No. 95/1 admeasuring only 7 Gunthas to defendant No. 2 in all for Rs. 8,001.00. The document recording the agreement of sale was executed on 20/04/1973. It is at Exh. 53 on the record of the case. Thereunder defendant No. 2 paid to defendant No. 1 Rs. 5.001.00towards the consideration amount and the balance amount was agreed to be paid at the time of execution of the sale deed. It appears that possession of the suit land was handed over to defendant No. 2 pursuant to the agreement of sale at Exh. 53 on the record of the case. It appears that the plaintiff came to know of handing over possession of the suit land to defendant No. 2. He thereupon caused to serve both the defendants with one notice through his Advocate on 18/06/1973 indicating therein that the agreement of sale of the suit land was entered into between the plaintiff and defendant No. 1 on 16/11/1972 and warned the addressees of the notice not to make any attempt to frustrate the said agreement in any manner. It appears that defendant No. 2 caused his reply to the said notice on 6/07/1973. Its copy is at Exh. 87 on the record of the case. Thereby he denied to have any knowledge of any agreement between the plaintiff and defendant No. 1 for sale of the suit land. It appears that the matter rested there at till the plaintiff instituted one suit on 15/11/1975 in the Court of the Civil Judge (J.D.) at Valsad for specific performance of the suit agreement or in the alternative for repayment of the consideration paid till that date with interest at the rate of 9% per annum. It came to be registered as Regular Civil Suit No. 166 of 1975. The suit was originally filed only against defendant No. 1. On service of the summons he appeared and filed his written statement at Exh. 11 on the record of the case and resisted the suit on various grounds. The suit appears to have been assigned to the learned Joint Civil Judge (J.D.) at Valsad for trial and disposal. In his written statement defendant No. 1 herein inter alia declared that the suit agreement was cancelled and thereafter on 20/04/1973 he agreed to sell the suit land together with another small parcel of land to defendant No: 2 for Rs. 8,001.00 and pursuant to the said agreement Rs. 5,001.00 was received on 20/04/1973 and the balance amount of the consideration was received on 12/10/1973. It was also declared that the required sale deed was executed in favour of defendant No. 2 and it was duly registered. Thereupon the plaintiff moved an amendment application at Exh. 14 on the record of the case for impleading the present appellant as defendant No. 2 in the suit proceedings. Pursuant to the order passed therebelow, the present appellant was impleaded as defendant No. 2 in the suit proceedings. It transpires from the record that defendant No. 1 herein filed one purshis at Exh. 33 on the record of the case taking up his reply at Exh. 16 on the record of the case to the amendment application at Exh. 14 on the record of the case to be his additional written statement to the amended plaint. Defendant No. 2 does not appear to have filed any written statement. Instead, he filed one purshis at Exh. 36 on the record of the case adopting the written statement filed by and on behalf of defendant No. 1 in the suit proceedings. On the pleadings of the parties the necessary issues were raised at Exh. 39 on the record of the case. After recording the evidence and hearing the parties, by his decision given on 30th January, 1978 in Regular Civil Suit No. 166 of 1975, the learned Joint Civil Judge (J.D.) at Valsad decreed the plaintiff's suit for specific performance of the suit agreement. That aggrieved defendant No. 2 in the suit. He therefore carried the matter in appeal before the District Court of Valsad at Navsari. It came to be registered as Regular Civil Appeal No. 18 of 1976. After hearing the parties, by his judgment and order passed on 31/01/1981 in Regular Civil Appeal No. 18 of 1976, the learned District Judge of Valsad at Navsari dismissed the appeal. The aggrieved appellant has thereupon invoked the further appellate jurisdiction of this Court under Sec. 100 of the Code of Civil Procedure, 1908 ('the Code' for brief) by means of this second appeal for questioning the correctness of the decision rendered by the learned District Judge of Valsad at Navsari in Regular Civil Appeal No. 18 of 1976 as aforesaid.