PADUCHURU PARANDHAMAYYA Vs. SARIPALLI APPALANAIDU

JUDGEMENT

(1.) Sri Koka Raghava Rao, the learned Counsel representing the appellants, hereinafter referred to as plaintiffs made the following submissions. The learned Counsel had taken this Court through the respective pleadings of the parties, the evidence available on record and would contend that merely because alternative relief of refund had been prayed for, that does not mean that the plaintiffs are not entitled to the main relief of specific performance. The learned Counsel also pointed out that the learned Judge totally erred in negativing the relief on the strength of the decision of the decision of the Apex Court in Gian Chand Vs. Gopala and others ((1995) 2 SCC 528=1995(1) SCALE 824) which has no application to the facts of the case. The learned Counsel also had taken this Court through the findings recorded by learned Judge and would contend that having arrived at a conclusion that the plaintiffs were able to prove the payments made and the relevant facts, negativing the relief of specific performance is not just and proper especially when almost the entire sale consideration had been already paid. The learned Counsel also would submit that the question of readiness and willingness to perform part of the contract and the other relevant aspects may not assume much importance in the light of the stand taken by the respondents/defendants in the respective pleadings. The learned Counsel also had explained why an application for reception of additional evidence i.e., A.P. Gazette Part-I Extraordinary, dated 4-6-1987 and Memo Rc.No.405/88/R1 dated 6-4-2001 had been thought of. The learned Counsel pointed out to the relevant portions of the findings recorded in relation thereof by the learned Judge and would comment that in the light of the pleadings of the respective parties, the plaintiffs thought that this material may not be necessary at the relevant point of time but in the light of the findings recorded by the learned Judge the plaintiffs thought it fit to place this material also before this Court for the purpose of proper adjudication of the questions in controversy.

(2.) Sri K. Sarvabhouma Rao, the learned Counsel representing certain of the contesting respondents/defendants had pointed out to Section 33 of the Indian Contract Act and Section 16(c) of the Specific Relief Act and would contend that irrespective of the pleadings of the legal representatives of the deceased original executant, the plaintiffs are bound to satisfy the terms and conditions for enforcement of the agreement of sale in question and in the absence of the same, negativing the relief of specific performance is well justified. The learned Counsel also would contend that all the facts and circumstances may have to be taken into consideration while judging whether the plaintiffs are entitled to the relief of specific performance or not. The relief being a discretionary relief when the learned Judge exercised the discretion in a particular way the same need not be disturbed by the appellate Court except certain compelling reasons are shown. The learned Counsel also pointed out to the stand taken in relation to third agreement and would point out that in the facts and circumstances of the case, if the main relief is granted, the plaintiffs would be deriving unfair advantage and hence the same cannot be granted. The learned Counsel also had explained the scope and ambit of doctrine of frustration and also the relevant facts and circumstances under which the learned Judge thought of ordering refund. The Counsel also seriously opposed the application for reception of additional evidence on the ground that none of the grounds under Order 41 Rule 27 of the Code of Civil Procedure are satisfied and hence the application deserves summary dismissal. The learned Counsel placed reliance on several decisions to substantiate his submissions.

(3.) Sri Sriraghuram, the learned Counsel representing certain of the contesting respondents/defendants would maintain that from the facts and circumstances of the case, it can be said that this is a speculative litigation. The learned Counsel would explain that it is not a case of frustration and hence the question of operation of doctrine of frustration and the removal thereof may not assume much importance. The learned Counsel also had explained that in the facts and circumstances of the case, the learned Judge ordered refund and the learned Counsel would contend that even ordering refund in the facts and circumstances would not be justified but however since the same had attained finality, the learned Counsel would contend that on facts the learned Judge arrived at the correct conclusion and hence the said findings are to be confirmed. The Counsel also relied upon certain decisions in this regard.