FARIDUDDIN Vs. MOINUDDIN ALIAS BABU (CHAKKIWALA)

JUDGEMENT

(1.) The present appeal arises out of the judgment and decree of the lower appellate court, whereby the plaintiff's suit for specific performance of contract has been rejected.

(2.) Facts in brief giving rise to filing of the appeal are that an agreement to sell was executed by the defendant in favour of the plaintiff on 5.1.1987 for sale of the house property in question for a consideration of Rs. 65,000.00 and a sum of Rs. 5,000.00 was paid as earnest money. On 12th Jan., 1988, this agreement to sell was also got registered. As per terms of the agreement, the defendant was required to obtain permission for sale of the property from the Ceiling Department and also from the Income Tax Department and within a period of 60 days the sale deed was to be executed. As per the plaintiff's case, the permission was not taken and intimated to the plaintiff by the defendant and in March, 1988 a further sum of Rs. 10,000.00 was claimed as advance against the transaction, which was also paid. Plaintiff alleges that subsequently notices were issued on different dates for specific performance of the contract and as the defendant failed to execute the sale deed, as such Original Suit No. 377 of 1989 was filed on 3rd of April, 1989. Suit was contested by the defendant alleging that it was the plaintiff, who was not getting the sale deed executed, inasmuch as the permission was applied by the defendant in the name of the plaintiff's wife with the concerned authorities, which was granted in April, 1988 and despite intimation of it to the plaintiff, the sale deed was not got executed. The defendant further denied the factum of receipt of Rs. 10,000.00 in April, 1988. Parties also led their oral and documentary evidence. Trial court for the purposes of adjudication of the suit proceeded to frame four issues. Issue No. 1 was as to whether the plaintiff was ready and willing to fulfill his part of the contract as stated in the plaint. Issue No. 2 was framed as to whether a sum of Rs. 10,000.00 was advanced against the contract to the defendant. Further issues were framed as to whether the plaintiff has violated the terms and conditions of the sale agreement and to what relief is he entitled. Trial court on issue No. 1, returned a finding that the defendant had failed to comply with the conditions of the contract and issue No. 1 was answered in favour of the plaintiff. On issue No. 2, the trial court disbelieved the case of the plaintiff of having paid a sum of Rs. 10,000.00. Issue No. 3 and 4 were also decided in favour of the plaintiff and the suit for specific performance was decreed. Defendant being aggrieved filed an appeal, which has been allowed by the lower appellate court and the judgment and decree of the trial court has been set aside. Lower appellate court has essentially taken into consideration two aspects to reject the plaintiff's case. Firstly, the plaintiff has been non-suited on the ground that his claim for performance of contract upon payment of sum of Rs. 50,000.00 could not be sustained as the plaintiff had failed to establish payment of Rs. 10,000.00 and the balance consideration as per agreement was Rs. 60,000.00. Secondly, it has been observed that permission from the Competent Authority for execution of sale deed had been obtained by the defendant in favour of the plaintiff's wife, but the plaintiff subsequently took up a stand that the permission for execution of sale deed be obtained in the name of the wife of plaintiff's brother. On the strength of these two findings, the lower appellate court has come to a conclusion that the plaintiff was not ready and willing to have the sale deed executed, and consequently, the suit has been dismissed after setting aside the judgment and decree of the trial court.

(3.) Learned counsel for the appellant submits that the findings returned by the trial court on the issues framed were not specifically reversed, and therefore, the judgment and decree of the lower appellate court is in teeth of the provisions of the Order 41, Rule 31 CPC. It is also stated that points for adjudication were not formulated in appeal, and therefore, the judgment of the lower appellate court cannot be sustained.