MUGLA Vs. RAM NARAIN

JUDGEMENT

(1.) The following substantial questions of law arise for consideration in both the second appeals:-

(2.) The suit for specific performance was filed at the instance of the plaintiff for enforcing an agreement of sale dated 08.03.1977 for a consideration of Rs. 22,000/-. As per the recitals in the agreement, the advance of Rs. 3,000/- had been paid on the same day and Rs. 16,000/- was to be adjusted against liability due by the defendant to the plaintiff under a mortgage dated 13.06.1974 and a balance of Rs. 3,000/- was to be paid before 30.03.1977. On the suit filed by the plaintiff for enforcement of his right under the agreement; the defence was that the plaintiff had earlier filed a suit for injunction claiming to be in possession under the mortgage dated 13.06.1974 and that suit had been dismissed on a finding that the mortgage was not true and that the property had not been put in possession of the property claimed by him. The defendant pleaded that finding regarding the invalidity of the mortgage constituted res judicata. The defendant's further contention was that the period of enforcement of the agreement fell on 30.03.1977 but the suit had been filed on 17.03.1980 well beyond the period when the plaintiff was required to perform his part of the contract. The contention, therefore, was that the plaintiff had not been ready and willing to perform his part of the contract which is necessary requisite for getting the discretionary relief of specific performance.

(3.) The trial Court found that the issue specifically raised about the validity of the mortgage was concluded in the earlier proceedings itself and that the plaintiff had even failed to produce the document of mortgage to substantiate the validity of a mortgage or the proof of consideration which was recited in the agreement. The suit was dismissed. The Appellate Court reversed the finding to hold that even if the mortgage had not been proved, the item of consideration would stand substituted as a liability by the plaintiff to pay the amount in cash and the agreement having been proved, the plaintiff is entitled to decree for specific performance.