KASHIRAO SHESHRAO GAWANDE Vs. KISAN BAHERJI MATE

JUDGEMENT

(1.) Being aggrieved of judgment and decree dated 26.9.2000, passed by Ilnd Additional District Judge, Akola in RegularCivil Appeal No.177/1994, reversing the judgment and decree dated 15.4.1992, passed by the Civil Judge (J.D.) Murtizapur in Regular Civil Suit No.48/1983 and thus dismissing the suit for specific performance of contract, the present appeal was filed in this Court.

(2.) In support of the appeal, I have heard learned Counsel for the appellants and upon perusal of the impugned judgment and decree, record and proceedings and after hearing him, following substantial question of law is framed.

(3.) Learned Counsel for the appellants argued that in support of the appeal agreement of sale was entered into on 28.1.1983 (Exh.48) for sale of the property for total consideration of Rs. 15,000/- and since the property was held by the tenant the respondent which was stipulated in the agreement of sale-deed would be executed only after receipt of permission under Section 57 of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as "the Bombay Tenancy Act" after payment of balance consideration. He then argued that on 7.2.1983 both parties to the agreement i.e. appellant and respondents jointly applied to the competent authority for grant of permission under Section 57 of the Bombay Tenancy Act for permission to sell the tenanted land but since permission was not being granted early the appellant-plaintiff under apprehension filed a suit for refund of his money on 30.3.1983. After filing of the suit on 8.8.1983 permission under Section 57 of the Bombay Tenancy Act was granted by the competent authority. Due to this subsequent event appellant applied for amendment for enforcing his claim for specific performance of contract which was eventually depending upon grant of such permission under Section 57 of the Bombay Tenancy Act. He then argued that the amendment application to incorporate the claim for specific performance of contract was allowed by the trial Court and stood upheld to this Court and therefore, the order allowing amendment could not have been commented upon by the learned first appellate Court much less adversely. He, thus, argued that the amendment was made before institution of the suit and therefore, finding that the appellant was not ready and willing in the above factual background merely because the appellant filed suit for refund of money is perverse and not in accordance with law. He, therefore, prayed for restoration of decree passed by the trial Court.