S. NARSIMHA Vs. GEETLA VIJAYA LAKSHMI

JUDGEMENT

(1.) This petition is filed by the petitioner/appellant/plaintiff, under Sec. 114 of C.P.C., seeking to review the Judgment, dtd. 8/6/2022, passed by this Court in A.S.No.2247 of 2003.

(2.) Review petitioner/plaintiff filed the suit being O.S.No.161 of 2000 against the respondents/defendants for specific performance of agreement of sale in respect of suit schedule property i.e., open plot NO.C/5, forming part of Sy.No.120, admeasuring 2632 square yards situated at Medipally village, Ghatkesar Mandal, Ranga Reddy District. The said suit was contested by the respondents/defendants by filing written statement. During trial, on behalf of the review petitioner/plaintiff, P.W.1 was examined and Exs.A1 to A20 were marked. On behalf of the respondents/defendants, D.Ws.1 to 3 were examined and Exs.B1 was marked. The trial Court, on consideration of rival contentions and also entire material available on record, while dismissing the suit for specific performance of agreement of sale, ordered for refund of Rs.4,00,000.00 paid by the plaintiff with interest thereon, vide judgment dtd. 7/8/2003. Aggrieved by the said judgment and decree of the trial Court, the review petitioner/plaintiff preferred A.S.No.2247 of 2003 and this Court, after considering the entire material available on record, dismissed the said appeal by judgment dtd. 8/6/2022.

(3.) Now, the present application is filed by the appellant/plaintiff seeking to review the aforesaid judgment, inter alia, contending that non-consideration of material documentary evidence on record is an error apparent on the face of record. The provision gives substantial power of review which can be exercised in the event of discovery of new and important matter or evidence taken place. The error in understanding the fact is also subject matter of judicial review and that manifest error crept in judgment resulting in miscarriage of justice, which needs to be reviewed. It is further contended that when once time is not essence of contract, the readiness and willingness to perform the contract by having money on hand on a specific date does not arise. In the judgment, it was observed by this Court that time is not essence of contract, but subsequently held that the plaintiff is not ready and willing to perform his part of contract as he has no financial capacity to perform his part of contract, however, this Court has not taken into consideration Ex. A4-Bank statement of the plaintiff to prove the financial capacity. An agreement of sale-cum-GPA is a contract of agency and suing the principal than the agent would be proper and the agent need not be sued separately. It is further contended that the GPA holder Ch.Jogi Reddy himself has represented in the entire suit proceedings on behalf of defendant No.1 and he himself entered into the witness box and examined as D.W.1 and thus, the question of his impleadment separately does not arise and even otherwise suing a Principal would be proper and appropriate. The concept of substituted performance is available to the party who is ready to perform his part of obligation and the other party is refusing or failed to perform his part of obligation. It is further contended that the observation of this Court that there was substituted performance by virtue of execution of sale deeds with respect to part of the suit property by respondents/defendants in favour of the appellant/plaintiff does not hold good as per law. This Court erred in looking into the contents of the additional documents i.e., sale deeds and that the observation of this Court that the additional documents have been executed by third parties to the appeal in favour of the appellant is not correct. In the instant case, the sale deeds have been executed by the respondents/defendants in favour of the appellant/plaintiff with respect to the part of suit schedule property. This Court erred in observing that the sale deeds of the year 2013 have been obtained without permission of the Court that too during the subsistence of injunction order passed in CMP No.20344 of 2003. Since the defendants alienated their properties in favour of the appellant only, there is no violation of the interim order passed by this Court.