SUGHRA BEE Vs. KAREEZ FATIMA QURESHI

JUDGEMENT

(1.) The unsuccessful defendant in both the Courts below is the appellant. The respondent/plaintiff filed the suit OS No.2070/90 on the file of III Assistant Judge, City Civil Court, Hyderabad for the relief of specific performance of contract of agreement of sale praying the Court to direct the appellant herein/ defendant to execute the sale deed in respect of the plaint schedule property and also to deliver possession of the said property. The suit was decreed by the learned Judge, with costs by judgment dated 8-7-1996. Aggrieved by the same, the unsuccessful defendant had carried the matter by way of Appeal A.S. No.202/96 on the file of n Additional Chief Judge, City Civil Court Hyderabad and by judgment dated 4-8-2000, the Appellate Court had dismissed the appeal confirming the judgment and decree of the Trial Court. Aggrieved by the same, the present Second Appeal was preferred by the unsuccessful defendant in both the Courts below.

(2.) Sri Vedula Venkata Ramana, the learned Counsel representing the appellant had pointed out to the following substantial questions of law:

(3.) Sri Waghray, the Counsel representing the respondent/plaintiff would contend that the conduct of the defendant also may have to be taken into consideration and the defendant had denied Ex.A-3 and Ex.A-4 and thus had not approached the Court with clean hands. The Counsel also had pointed out to the aspect of question of limitation and the findings in relation thereto and had submitted that perfectly the suit is within limitation. The Counsel also had commented that the specific price of Rs.350.00 per sq. yard had been fixed and the proposed acquisition was within the knowledge of both the parties and hence the necessary terms and conditions had been incorporated and absolutely there is no vagueness or uncertainty in these documents. The learned Counsel also commented that there is no plea relating to uncertainty, but however such contention was advaaeed. At any rate, the Counsel would submit that in the light of the terms and conditions agreed between the parties, the conditions are definitely certain and clear and hence Section 29 of the Indian Contract Act is not applicable. The learned Counsel also contended that there is no serious controversy about Ex.A-1 and concurrent findings had been recorded in relation to Ex.A-3 and Ex.A-4 and in view of the limitations imposed on this Court under Section 100 of the Code of Civil Procedure, such findings normally are not to be disturbed. The learned Counsel also would submit that the Courts below had appreciated all the facts and circumstances and had arrived at the correct conclusion granting the relief of specific performance to respondent/ plaintiff which need not be disturbed. The learned Counsel also had commented that the non-impleading of a third party would not arise at all since there is no plea or there is no evidence in this regard and only it was a casual observation made by the Court on the strength of the submissions made by the Counsel on record. The learned Counsel also contended that while appreciating the granting or negativing the relief of specific performance, an equitable relief, the conduct of both the parties may have to be taken into consideration. The Counsel also placed reliance on the decisions in Shobat Dei v. Devi Phal, AIR 1971 SC 2192, S.R. Varadaraja Reddiar v. Francis Xavier Joseph Periaria, AIR 1991 Kerala 288, Rajkishor v. Banabehari, AIR 1951 Orissa 291 and Khiwaraj Chord v. Esso Standard Eastern Inc., 1975 (2) MLJ 65.