It is the contention of the learned counsel for the appellants
in the second appeal that the courts below omitted to frame a necessary
issue regarding compliance with Section 16(c) of the Specific Relief Act,
1963 and that therefore, the grant of main relief, namely the specific relief
directing the first respondent to execute the sale deed, has got to be
interfered with. It is true that the trial court did not frame a specific issue
as to the readiness and willingness of the plaintiff or in other words, the
compliance with section 16(c) of the Specific Relief Act. However, the non framing
of such a specific issue is of no significance. The issue framed by
the trial court as to whether the plaintiff is entitled to the relief of specific
performance can be interpreted to contain in it the issue regarding
compliance with Section 16(c) of the Specific Relief Act. Normally, if the
defendants in a suit has taken a plea that the plaintiff was not ready and
willing to perform his part of the contract or that the plaintiff omitted to
plead his readiness and willingness as required under Section 16(c) of the
Specific Relief Act, then the non-framing of such a specific issue may be
considered to be a factor vitiating the judgment. Here is a case in which,
the defendant did not make a specific plea regarding the absence of
readiness and willingness on the part of the plaintiff. On the other hand,
he contested the suit solely on the plea that the suit agreement for sale
marked as Ex.A1 and the endorsements marked as Exs.A2 to A5 were
fabricated. In addition, a plea was taken in the written statement to the
effect that since the suit itself had been filed based on fabricated
agreement, the question of readiness and willingness on the part of the
plaintiff would not arise. Perhaps, the same prompted the trial court not
to frame a specific issue regarding the said aspect on the ground that
admitted facts or facts not specifically disputed need not be proved.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Delivered on : 23.02.2015
CORAM
THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR
S.A.No.628 of 2008
and
M.P.Nos.1/2008, 3&4/2010
M.Mohammed Ismail (died)
rep. by his LRs
-Vs-
K.P.Subbiah (died)
rep. by his LRs
Citation;AIR 2015(NOC)595 MAD
This second appeal has been preferred against the decree of the
lower appellate court dated 30.11.2005 made in A.S.No.90/2005 on the
file of the District Court, Coimbatore. K.P.Subbiah (died) filed the original
suit O.S.No.1196/2000 on the file of Sub Court, Coimbatore for the relief
of specific performance based on an agreement for sale dated 16.07.1992
allegedly entered into between himself and M.Mohammed Ismail (died),
the vendor under the agreement for sale, ranking him as the first
defendant in the suit and arraying Thangaraj, the 4th appellant herein as
a co-defendant and ranking him as second defendant in the suit. The
plaintiff also had prayed for an alternative relief in the event of the trial
court negativing the relief of specific performance, for a decree directing
the first defendant to refund the advance amount of Rs.3,00,000/-
together with an interest thereon at the rate of 12% per annum from the
date of plaint till realisation.
2. For the sake of convenience and for easy reference, the parties
are referred to in accordance with their ranks in the original suit and in
appropriate places wherever it is necessary their ranks in the second
appeal shall also be furnished.
3. A larger extent of property, which was the subject matter of
the agreement was shown as plaint 'A' schedule property. Deducting the
property sold in favour of the son-in-law and daughter of the plaintiff, the
3
balance extent alone was shown in plaint 'B' schedule. The relief of
specific performance, perpetual injunction restraining the first defendant
not to alienate or encumber or induct any third party into possession and
a perpetual injunction not to alter the physical features had been sought
for in respect of the unsold portion of land measuring 2873 sq.ft.
described in plaint 'B' schedule. In the alternative, a decree for refund of
advance amount had been sought for.
4. According to the plaintiff, the deceased first defendant
M.Mohammed Ismail had entered into an agreement on 06.07.1992 with
the plaintiff for the sale of the entire 'A' schedule property at the rate of
Rs.56,000/- per cent and received an advance of Rs.1,00,000/-. The
further case of the plaintiff was that though the time for completion of the
transaction was fixed as six months in the agreement, the deceased first
defendant had to vacate some occupants in the property and hence he
received further advance on various dates and extended the time for
completion of the sale transaction by making endorsements on the
agreement. According to the plaint averments, by 25.05.1994 a total sum
of Rs.3,00,000/- had been paid and on 13.09.1996, the first defendant
executed two sale deeds in respect of 1302.5 sq.ft. and 2814.5 sq.ft.
respectively in favour of Umayavel (son-in-law of the plaintiff) and
Subbulakshmi (daughter of the plaintiff) respectively. The sum of
Rs.3,00,000/- paid in three installments prior to 13.09.1996 was adjusted
towards the sale consideration and the balance consideration for the
4
conveyed portion was also received by the first defendant. Subsequently,
on 14.05.1998, a sum of Rs.2,00,000/- and on 15.05.1998 another sum
of Rs.1,00,000/- were paid as further advance and the first defendant
agreed to convey the rest of the property, which is described in plaint 'B'
schedule. Though the plaintiff was ready and willing, it was the first
defendant who postponed the completion of the transaction under one
pretext or other. The notice issued by the plaintiff evoked no fruitful
response and hence he was constrained to file the suit for the above said
reliefs in respect of the plaint 'B' schedule.
5. The suit was contested on the basis of the written statement
filed by the first defendant, which was adopted by the second defendant
also. By and large, paragraph-wise plaint averments, were denied. Besides
such denial, it was contended in the written statement that the suit
agreement dated 16.07.1992 and the endorsements found thereon were
all fabricated and that there was no valid agreement for sale. It was
further contended in the written statement that when the first defendant
sold a portion of the plaint 'A' schedule property to the son-in-law and
daughter of the plaintiff under two different sale deeds, the plaintiff
wanted to purchase the balance extent also, namely the property
described in plaint 'B' schedule; that the first defendant did not agree for
the same and that in order to coerce and compel the first defendant, the
suit came to be filed after forging and fabricating the suit agreement and
endorsements.
5
6. Based on the above said pleadings, necessary issues were
framed and in the trial, seven witnesses were examined as PWs.1 to 7 and
19 documents were marked as Exs.A1 to A19 on the side of the plaintiff.
The first and second defendants deposed as DWs.1 and 2 and no
independent witness was examined on the side of the defendants. Six
documents were marked as Exs.B1 to B6 on the side of the defendants.
7. The case of the plaintiff is based on the suit agreement for
sale marked as Ex.A1 and also the endorsements made thereon marked
as Exs.A2 to A5. According to the plaint averments Ex.A1-agreement was
executed by the first defendant after receiving a sum of Rs.1,00,000/ and
Exs.A2 and A3 endorsements were made on receiving a sum of
Rs.1,00,000/- each on those two occasions. The entire amount of
Rs.3,00,000/- covered by Exs.A1 to A3 was adjusted towards the sale
consideration for the sale deeds dated 13.09.1996 executed in favour of
the son-in-law and daughter of the plaintiff conveying part of plaint 'A'
schedule property and the remaining portion is shown as plaint 'B'
schedule property.
8. The learned trial judge accepted the contention of the plaintiff
that the earlier advance covered by Ex.A1-agreement and the
endorsements marked as Ex.A2 and A3 were adjusted towards the sale
consideration for the sale deeds executed in favour of the son-in-law and
daughter of the plaintiff on 13.09.1996 and that thereafter, a further sum
6
of Rs.3,00,000/- came to be paid by the plaintiff under Exs.A4 and A5
endorsements. Even though the trial court upheld the contention of the
plaintiff regarding the execution of Ex.A1-Agreement and payments made
under Ex.A1-Agreement and Exs.A2 to A5-endorsements, without
considering the question regarding the entitlement of the plaintiff to get a
decree for specific performance, it simply chose to grant a decree as per
the alternative prayer directing the first defendant to refund the sum of
Rs.3,00,000/- covered by Exs.A4 and A5 endorsements together with an
interest at the rate of 6% per annum from the date of plaint till
realisation. In view of the fact that the trial court negatived the prayer for
specific performance, the relief of permanent injunction sought for was
negatived by the trial court.
9. As against the judgment and decree of the trial court dated
17.11.2004, no appeal was preferred by the defendants. On the other
hand, the plaintiff alone filed an appeal before the District Court,
Coimbatore in A.S.No.90/2005. The learned lower appellate judge, after
hearing, re-appraised the evidence, allowed the appeal and modified the
decree of the trial court by granting the main relief, namely relief of
specific performance instead of the alternative relief of refund of advance
money with interest. Thereafter, the plaintiff as well as the first defendant
died and the LRs of the first defendant and the second defendant have
filed the present second appeal against the respondents 1 to 6, the LRs of
the deceased plaintiff Subbiah.
7
10. At the time of admission, the following questions were
formulated as substantial questions of law involved in the second appeal.
Substantial Questions of Law:
"1. Whether the decree for specific performance
of Exhibit A.1 granted by the Court below without framing
an issue considering the pleadings and materials and
giving a finding that the deceased plaintiff was always
ready and willing to perform his part of the sale agreement,
is not violative of Section 16(c) of the Specific Relief Act,
illegal, invalid and unenforceable?
2. Whether a decree for specific performance of
Exhibit A.1 sale agreement can be granted in respect of the
suit "B" schedule property, which is not described and not
agreed to be sold thereunder to the deceased plaintiff?
3. Whether in view of Article 54 of the Limitation
Act, the present suit for the specific performance of Exhibit
A.1 sale agreement dated 16.7.1992, filed about 8 years
after the date fixed for performance therein i.e. on
4.9.2000, in absence of proof for extension of time for
performance, is not barred by limitation?
4. Whether the deceased plaintiff who has filed
the suit for specific performance of Exhibit A.1 is not bound
to prove that Exhibit A.1 and the 4 endorsements (Exhibit
A.2 to 5) contained therein were executed by the deceased
1st defendant and it is true, valid and enforceable
document? Was the Court right in shifting the burden of
proof on the deceased 1st defendant, holding that he had
not proved that Exhibit A.1 was not executed by him and
granting a decree for specific performance?
5) Whether in view of the nature of facts and
Section 73 of the Evidence Act, by making a mere
comparison through naked eyes without even a report from
8
a Handwriting Expert, can it be safely concluded that the
signatures found in Exhibit A1 and the 4 endorsements
made therein (Exhibits A.2 to 5) are that of the deceased
1st defendant and whether such a conclusion arrived by
the Court below, that too, by merely referring to the
observation of the trial Court thereon, is sustainable in
law?"
11. The arguments advanced by Mr.T.P.Manoharan, learned
counsel for the appellant and by Mr.T.R.Rajagopalan, learned senior
counsel appearing for M/s.T.R.Rajaraman, counsel on record for the
respondent were heard. The materials available on record were also
perused and this court paid its anxious consideration to the same.
12. An appeal from the appellate decree of a court subordinate
to the High Court, shall lie to the High Court on a substantial question of
law as per Section 100 of the Code of Civil Procedure, 1908. Sub clause
(3) of Section 100 of CPC says that the appeal memorandum should
precisely state the substantial question of law involved in the second
appeal. Sub section (4) is to the effect that if the High Court is satisfied
that a substantial question of law is involved in the case it shall formulate
that question. Such a formulation of substantial question of law at the
time of admission is subject to the right of the opposite party to argue that
no such substantial question of law is involved in the second appeal. This
has been stated so in sub section (5) of Section 100 CPC. Relying on the
said sub section, it is argued on behalf of the respondents that, the case
9
does not involve any of the substantial question of law as formulated at
the time of admission.
13. According to the contention of the learned counsel for the
contesting respondents, the first and second defendants, having suffered
a decree for the refund of the advance amount based on Ex.A1-Agreement
and Exs.A4 and A5 endorsements, ought to have filed an appeal or at
least a cross objection in the appeal filed by the plaintiff before the lower
appellate court challenging the said decree and praying for the dismissal
of the suit in toto and since the defendants failed to do so, the findings of
the trial court regarding the genuineness and validity of Ex.A1-agreement
and Exs.A2 to A5 - endorsements have attained finality. The learned
counsel for the contesting respondents argued that the defendants, who
chose to contest the suit solely based on their contention that Ex.A1-
agreement and Exs.A2 to A5 endorsements were not genuine and on the
other hand were fabricated, could have no scope for re-agitating the
question of genuineness and validity of Exs.A1 to A5, after having suffered
a decree in the hands of the trial court and after having failed to challenge
the same either by way of an appeal or by way of a cross-objection before
the lower appellate court.
14. In this case, the deceased first defendant contended that he
never executed Ex.A1-agreement for sale. It was also his contention that
10
besides Ex.A1-agreement, Exs.A2 to A5-endorsements were also forged
and fabricated. In this regard, excepting the interested testimony of the
first defendant as DW1, there is no other evidence to support his
contention. On the other hand, the plaintiff, besides examining himself as
PW1, examined the attestors and others in proof of execution of Ex.A1-
agreement, the making of Exs.A2 to A5-endorsements and the passing of
consideration evidenced by Exs.A1 to A5. The said evidence was held to be
enough to prove the case of the plaintiff regarding the execution of the
agreement and the making of the endorsements. The said evidence shall
be sufficient at least to shift the burden and cast it on the defendants to
prove the said documents to be forged and fabricated. After fully
considering the evidence adduced on both sides, the learned trial judge
came to a conclusion that the plaintiff's case that the first defendant
executed Ex.A1-agreement for sale agreeing to sell plaint 'A' schedule
property at the rate of Rs.56,000/- per cent stood substantiated. The trial
court also held in clear terms that the payments alleged in the plaint and
the payments evidenced by Exs.A1 to A5 were proved. Only based on the
said finding, the learned trial judge chose to grant the alternative relief of
refund of advance amount with interest.
15. When the decree is based on a finding, the person against
whom such a finding is rendered and the decree is passed, ought to have
challenged it by filing an appeal or cross-objection in the event of the
decree holder filing an appeal against the disallowed portion of the claim.
11
If no such appeal or cross objection is filed, then such a finding will
attract the principle of res judicata in the later part of the proceedings.
Hence, this court is of the considered view that the appellants in the
second appeal are not entitled to raise and re-agitate the question of
genuineness or otherwise of Ex.A1-agreement for sale. They are also not
entitled to raise the question regarding the genuineness and binding
nature of the endorsements marked as Exs.A2 to A5. The bar of res
judicata will prevent them from questioning the finding of the trial court in
this regard. Therefore, the substantial question Nos.4 and 5 formulated at
the time of admission of the second appeal do not deserve consideration,
as they are not the substantial questions of law involved in the second
appeal.
16. The other contentions sought to be raised by the appellants
in the second appeal is that since the property described in plaint 'B'
schedule has not been separately described in Ex.A1-agreement as the
property agreed to be sold, the plaintiff shall not be entitled to the relief of
specific performance in respect of plaint 'B' schedule property. It is
pertinent to note that there is no dispute regarding the fact that plaint 'B'
schedule property is a part of plaint 'A' schedule property. According to
the plaintiff's case, a total extent of 6991 sq.ft. (16 cents) more fully
described in plaint 'A' schedule was agreed to be sold under Ex.A1-
agreement at the rate of Rs.56,000/- per cent. Admittedly, out of the
above said extent described in plaint 'A' schedule, an extent of 1302.5
12
sq.ft. was conveyed under the sale deed dated 13.09.1996 registered as
Document No.3314/1996 in the office of District Registrar, Coimbatore in
favour of E.Umayavel, the son-in-law of the plaintiff. A copy of the said
sale deed has been produced as Ex.A16. Similarly an extent of 2814.5
sq.ft. land, out of the total extent of 'A' schedule, was conveyed by the first
defendant under a sale deed dated 13.09.1996, registered as Document
No.3315/1996 in favour of U.Subbulakshmi, the daughter of the plaintiff.
A copy of the same has been produced as Ex.A15. Deducting the above
said extents of land from the total extent of plaint 'A' schedule, the
balance extent alone has been shown as the plaint 'B' schedule. A
comparison of description of the property provided in plaint 'B' schedule
with the description of property found in plaint 'A' schedule in conjunction
with the description of properties found in the sale deeds dated
13.09.1996 executed in favour of Umayavel and Subbulakshmi, will make
it clear that a portion of plaint 'A' schedule property alone has been shown
as plaint 'B' schedule property. It is also obvious that by seeking specific
performance in respect of plaint 'B' schedule property, the plaintiff sought
for the relief in respect of the property which was the subject matter of
Ex.A1. Such a prayer was made to complete the transaction based on
Ex.A1-agreement in its entirety, as the remaining portions had already
been sold to his son-in-law and daughter, who, according to him, were his
nominees. Therefore, the contention of the appellant that the plaintiff
should not have been granted the relief of specific performance in respect
of the plaint 'B' schedule property as though it has not been described in
13
Ex.A1-sale agreement cannot be countenanced. The second substantial
question of law is answered accordingly.
17. It is the contention of the learned counsel for the appellants
in the second appeal that the courts below omitted to frame a necessary
issue regarding compliance with Section 16(c) of the Specific Relief Act,
1963 and that therefore, the grant of main relief, namely the specific relief
directing the first respondent to execute the sale deed, has got to be
interfered with. It is true that the trial court did not frame a specific issue
as to the readiness and willingness of the plaintiff or in other words, the
compliance with section 16(c) of the Specific Relief Act. However, the nonframing
of such a specific issue is of no significance. The issue framed by
the trial court as to whether the plaintiff is entitled to the relief of specific
performance can be interpreted to contain in it the issue regarding
compliance with Section 16(c) of the Specific Relief Act. Normally, if the
defendants in a suit has taken a plea that the plaintiff was not ready and
willing to perform his part of the contract or that the plaintiff omitted to
plead his readiness and willingness as required under Section 16(c) of the
Specific Relief Act, then the non-framing of such a specific issue may be
considered to be a factor vitiating the judgment. Here is a case in which,
the defendant did not make a specific plea regarding the absence of
readiness and willingness on the part of the plaintiff. On the other hand,
he contested the suit solely on the plea that the suit agreement for sale
marked as Ex.A1 and the endorsements marked as Exs.A2 to A5 were
14
fabricated. In addition, a plea was taken in the written statement to the
effect that since the suit itself had been filed based on fabricated
agreement, the question of readiness and willingness on the part of the
plaintiff would not arise. Perhaps, the same prompted the trial court not
to frame a specific issue regarding the said aspect on the ground that
admitted facts or facts not specifically disputed need not be proved. The
learned lower appellate judge, who proceeded on the same footing, made
an observation that the reasons assigned by the trial court for denying the
main relief of specific performance directing execution of the sale deed
could not be sustained. Based on the said finding alone, the lower
appellate court chose to hold that the decree of the trial court was liable to
be modified by granting the relief of specific performance as per the main
prayer instead of the alternative prayer for refund of advance amount with
interest. In such cases wherein the parties have led evidence knowing
fully well the rival contentions of the parties, the second appellate court
can go into the said question based on the evidence adduced by the
parties with consciousness that such an issue was to be addressed in the
suit and render a finding.
18. Referring to the judgment of the Supreme Court in
Nedunuri Kameswaramma vs. Sampati Subba Rao reported in AIR
1963 SC 884 and Swamy Atmananda & Ors. Vs. Sri Ramakrishna
Tapovanam & Ors. reported in (2005) 10 SCC 51, this court approved
the above said proposition in Sridhandappa @ Rajappa vs. Muniamma
15
reported in (2014) 3 MLJ 684. The relevant portions from the said
judgment are extracted hereunder:
"....mere failure to frame an issue alone shall
not be the ground for remanding the case back to the
trial Court and that such omission would be an
irregularity capable of being cured by the appellate
Court or the second appellate Court if the parties were
very much aware of their respective pleas and
conscious of the respective pleas, they lead evidence in
full regarding such controversy also. In this regard,
reliance can be made to the judgment of the Hon’ble
Supreme Court in Nedunuri Kameswaramma vs.
Sampati Subba Rao reported in AIR 1963 SC 884 and
Swamy Atmananda & Ors. Vs. Sri Ramakrishna
Tapovanam & Ors. reported in (2005) 10 SCC 51. In
the first of the judgment cited above, namely Nedunuri
Kameswaramma’s case, a Larger Bench of the
Supreme Court consisting of three Hon’ble Judges
made the following observations:
“No doubt, no issue was framed, and the one,
which was framed, could have been more elaborate; but
since the parties went to trial knowing the rival case and
led all the evidence not only in support of their
contentions but in refutation of those of the other side, it
cannot be said that the absence of an issue was fatal to
the case, or that there was that mix-trial which vitiates
proceedings. We are, therefore, of opinion that the suit
could not be dismissed on this narrow ground, and also
that there is no need for a remit, as the evidence which
has been led in the case is sufficient to reach the right
16
conclusion. Neither party claimed before us that it had
any further evidence to offer.”
In the second of the judgment cited above, namely
Swamy Atmananda’s case, the Hon’ble Apex court
referring to the above cited observation of the Larger
Bench of the Supreme Court in Nedunuri
Kameswaramma’s case cited supra and following the
same, has made the following observation:
“ If the parties went to the trial knowing fully
well the real issues involved and adduced evidence in
such a case without establishing prejudice, it would not
be open to a party to raise the question of non-framing of
particular issue.”
19. In fact, even in the second appeal, it was not canvassed on
behalf of the appellants that there was absence of compliance with the
requirements of section 16(c) of the Specific Relief Act. On the other hand,
it was mainly contended that though no appeal or cross-objection against
the finding regarding the genuineness and validity of Ex.A1-agreement
was filed by the defendants, the lower appellate court ought to have
considered the same by exercising its power under Order XLI Rule 33 of
the Code of Civil Proedure and held that the suit agreement for sale and
the endorsements marked as Exs.A1 and A2 to A5 respectively, were not
genuine. This court is not in a position to accept the above said
contention. The question of genuineness and validity of the agreement and
endorsements attained finality and the only question that remained for
resolution by the lower appellate court was, "whether the plaintiff
17
(appellant before the lower appellate court) was entitled to the main relief
of specific performance directing the first defendant to execute the sale
deed in respect of plaint 'B' schedule property?". On facts also, this court
is satisfied that necessary pleadings regarding readiness and willingness
on the part of the plaintiff sufficient to meet the requirements of Section
16(c) of the Specific Relief Act had been made in the plaint and that
sufficient evidence was also adduced in proof of such averment. Therefore,
this court hereby holds that the first substantial question of law deserves
to be answered against the appellants in the second appeal.
20. The third substantial question of law is formulated on the
basis of the contention of the appellants that in Ex.A1 - agreement, time
for completion was noted to be six months, but the suit came to be filed
after a lapse of about 8 years and that hence the suit was hopelessly
barred by limitation. It is true that Ex.A1-agreement contains a recital to
the effect that the first defendant had undertaken to convey the suit
property under one or more sale deed/deeds for a sale consideration at
the rate of Rs.56,000/- per cent within six months from the date of
agreement. The relevant portion in vernacular is extracted here under:
",jdoapy; fhQqk; brhj;J tifauhit rh;t tpy;y';f Rj;jpahf
ehsJ njjp Kjy; 6 MW khjk; bfLtpw;Fs; 1yf;fkpl;lth;f;F brz;l;
1f;F U:gha;/56.000-? Ik;gj;jp Mwhapuk; U:gha; tPjk; Rj;jf;
fhyf; fpiuaKk; RthjPdKk; bra;J bfhLg;gjhf xg;g[f; bfhz;L
mjw;F ml;thd;!hf fpuaj;Jifapy; Xh; ghfk; U:gha; 100000-? xU
yT&k; kl;Lk; ehsJ njjpapy; 1yf;fkpl;lthplk; 2yf;fkpl;lth;
,jdoapy; fhQqk; rhT&pfs; Kd; buhf;fkhfg;
bgw;Wf;bfhz;lgoahy; ghf;fp cs;s fpiuaj;Jifia hp$p!;luhh;
mth;fs; Kd;buhf;fk; bgw;Wf; bfhs;tjhf fz;L 1yf;fkpl;lth; rpytpy;
18
1yf;fkpl;lth;f;fhtJk; 1yf;fkpl;lth; brhy;Yk; egh;fSf;fhtJk; 1 xU
fpiuakhfnth my;yJ gyfpiuakhfnth fpiuaKk; RthjPdKk; bra;J
bfhLf;f 2yf;fkpl;lth; xg;g[f; bfhz;oUf;fpwhh;/"
A reading of the entire recital found in the document makes it clear that
time had been stipulated for enabling the first defendant to get ready for
the execution of the sale deed after removing the occupants and that the
same was made clear by the pleading made by the plaintiff and the
evidence adduced on his behalf. The same was the reason why from time
to time the time for completion of the transaction was extended, as
evidenced by the endorsements Exs.A2 to A5. The last of such
endorsements, namely Ex.A5, came to be made on 15.05.1998. By such
an endorsement, time for performance was extended till 30.12.1999.
Demand was made in person and by issuing a notice well before the
expiry of the time extended as per Ex.A5 endorsement. A copy of the
notice dated 12.10.1999 and the postal acknowledgment card are Exs.A6
and A7. The first defendant is said to have issued a reply to the said
notice on 30.10.1999 itself and a copy of the same, acknowledgment card
and the certificate issued by the postal department have been produced as
Exs.B1 to B3. From the said documents, it shall be obvious that well
within the time extended under Ex.A5-endorsement, the plaintiff issued a
notice expressing his readiness and willingness to get the transaction
completed and calling upon the first defendant to come and receive the
balance amount and execute the sale deed. On the other hand, it was the
first defendant, who disputed his obligation under the agreement and
thereafter within the period of limitation, the plaintiff chose to file the suit
19
for specific performance. Therefore, there shall be no question of the bar of
limitation being attracted to the suit filed by the plaintiff, as it was well
within the period of limitation prescribed under Article 54 of the
Limitation Act, 1963. Therefore, the third substantial question of law is
also answered accordingly against the appellant and in favour of the
respondents in the second appeal.
21. In view of the foregoing discussions, this court comes to the
conclusion that there is no merit in the second appeal and the same
deserves dismissal.
In the result, the second appeal is dismissed with cost.
Consequently, all the connected miscellaneous petitions are closed.
23.02.2015
Index : Yes
Internet : Yes
asr/-
To
The Principle District Judge, Coimbatore
20
P.R.SHIVAKUMAR.J.,
asr
Judgment
in S.A.No.628 of 2008
23.02.2015
Print Page
in the second appeal that the courts below omitted to frame a necessary
issue regarding compliance with Section 16(c) of the Specific Relief Act,
1963 and that therefore, the grant of main relief, namely the specific relief
directing the first respondent to execute the sale deed, has got to be
interfered with. It is true that the trial court did not frame a specific issue
as to the readiness and willingness of the plaintiff or in other words, the
compliance with section 16(c) of the Specific Relief Act. However, the non framing
of such a specific issue is of no significance. The issue framed by
the trial court as to whether the plaintiff is entitled to the relief of specific
performance can be interpreted to contain in it the issue regarding
compliance with Section 16(c) of the Specific Relief Act. Normally, if the
defendants in a suit has taken a plea that the plaintiff was not ready and
willing to perform his part of the contract or that the plaintiff omitted to
plead his readiness and willingness as required under Section 16(c) of the
Specific Relief Act, then the non-framing of such a specific issue may be
considered to be a factor vitiating the judgment. Here is a case in which,
the defendant did not make a specific plea regarding the absence of
readiness and willingness on the part of the plaintiff. On the other hand,
he contested the suit solely on the plea that the suit agreement for sale
marked as Ex.A1 and the endorsements marked as Exs.A2 to A5 were
fabricated. In addition, a plea was taken in the written statement to the
effect that since the suit itself had been filed based on fabricated
agreement, the question of readiness and willingness on the part of the
plaintiff would not arise. Perhaps, the same prompted the trial court not
to frame a specific issue regarding the said aspect on the ground that
admitted facts or facts not specifically disputed need not be proved.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Delivered on : 23.02.2015
CORAM
THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR
S.A.No.628 of 2008
and
M.P.Nos.1/2008, 3&4/2010
M.Mohammed Ismail (died)
rep. by his LRs
-Vs-
K.P.Subbiah (died)
rep. by his LRs
Citation;AIR 2015(NOC)595 MAD
This second appeal has been preferred against the decree of the
lower appellate court dated 30.11.2005 made in A.S.No.90/2005 on the
file of the District Court, Coimbatore. K.P.Subbiah (died) filed the original
suit O.S.No.1196/2000 on the file of Sub Court, Coimbatore for the relief
of specific performance based on an agreement for sale dated 16.07.1992
allegedly entered into between himself and M.Mohammed Ismail (died),
the vendor under the agreement for sale, ranking him as the first
defendant in the suit and arraying Thangaraj, the 4th appellant herein as
a co-defendant and ranking him as second defendant in the suit. The
plaintiff also had prayed for an alternative relief in the event of the trial
court negativing the relief of specific performance, for a decree directing
the first defendant to refund the advance amount of Rs.3,00,000/-
together with an interest thereon at the rate of 12% per annum from the
date of plaint till realisation.
2. For the sake of convenience and for easy reference, the parties
are referred to in accordance with their ranks in the original suit and in
appropriate places wherever it is necessary their ranks in the second
appeal shall also be furnished.
3. A larger extent of property, which was the subject matter of
the agreement was shown as plaint 'A' schedule property. Deducting the
property sold in favour of the son-in-law and daughter of the plaintiff, the
3
balance extent alone was shown in plaint 'B' schedule. The relief of
specific performance, perpetual injunction restraining the first defendant
not to alienate or encumber or induct any third party into possession and
a perpetual injunction not to alter the physical features had been sought
for in respect of the unsold portion of land measuring 2873 sq.ft.
described in plaint 'B' schedule. In the alternative, a decree for refund of
advance amount had been sought for.
4. According to the plaintiff, the deceased first defendant
M.Mohammed Ismail had entered into an agreement on 06.07.1992 with
the plaintiff for the sale of the entire 'A' schedule property at the rate of
Rs.56,000/- per cent and received an advance of Rs.1,00,000/-. The
further case of the plaintiff was that though the time for completion of the
transaction was fixed as six months in the agreement, the deceased first
defendant had to vacate some occupants in the property and hence he
received further advance on various dates and extended the time for
completion of the sale transaction by making endorsements on the
agreement. According to the plaint averments, by 25.05.1994 a total sum
of Rs.3,00,000/- had been paid and on 13.09.1996, the first defendant
executed two sale deeds in respect of 1302.5 sq.ft. and 2814.5 sq.ft.
respectively in favour of Umayavel (son-in-law of the plaintiff) and
Subbulakshmi (daughter of the plaintiff) respectively. The sum of
Rs.3,00,000/- paid in three installments prior to 13.09.1996 was adjusted
towards the sale consideration and the balance consideration for the
4
conveyed portion was also received by the first defendant. Subsequently,
on 14.05.1998, a sum of Rs.2,00,000/- and on 15.05.1998 another sum
of Rs.1,00,000/- were paid as further advance and the first defendant
agreed to convey the rest of the property, which is described in plaint 'B'
schedule. Though the plaintiff was ready and willing, it was the first
defendant who postponed the completion of the transaction under one
pretext or other. The notice issued by the plaintiff evoked no fruitful
response and hence he was constrained to file the suit for the above said
reliefs in respect of the plaint 'B' schedule.
5. The suit was contested on the basis of the written statement
filed by the first defendant, which was adopted by the second defendant
also. By and large, paragraph-wise plaint averments, were denied. Besides
such denial, it was contended in the written statement that the suit
agreement dated 16.07.1992 and the endorsements found thereon were
all fabricated and that there was no valid agreement for sale. It was
further contended in the written statement that when the first defendant
sold a portion of the plaint 'A' schedule property to the son-in-law and
daughter of the plaintiff under two different sale deeds, the plaintiff
wanted to purchase the balance extent also, namely the property
described in plaint 'B' schedule; that the first defendant did not agree for
the same and that in order to coerce and compel the first defendant, the
suit came to be filed after forging and fabricating the suit agreement and
endorsements.
5
6. Based on the above said pleadings, necessary issues were
framed and in the trial, seven witnesses were examined as PWs.1 to 7 and
19 documents were marked as Exs.A1 to A19 on the side of the plaintiff.
The first and second defendants deposed as DWs.1 and 2 and no
independent witness was examined on the side of the defendants. Six
documents were marked as Exs.B1 to B6 on the side of the defendants.
7. The case of the plaintiff is based on the suit agreement for
sale marked as Ex.A1 and also the endorsements made thereon marked
as Exs.A2 to A5. According to the plaint averments Ex.A1-agreement was
executed by the first defendant after receiving a sum of Rs.1,00,000/ and
Exs.A2 and A3 endorsements were made on receiving a sum of
Rs.1,00,000/- each on those two occasions. The entire amount of
Rs.3,00,000/- covered by Exs.A1 to A3 was adjusted towards the sale
consideration for the sale deeds dated 13.09.1996 executed in favour of
the son-in-law and daughter of the plaintiff conveying part of plaint 'A'
schedule property and the remaining portion is shown as plaint 'B'
schedule property.
8. The learned trial judge accepted the contention of the plaintiff
that the earlier advance covered by Ex.A1-agreement and the
endorsements marked as Ex.A2 and A3 were adjusted towards the sale
consideration for the sale deeds executed in favour of the son-in-law and
daughter of the plaintiff on 13.09.1996 and that thereafter, a further sum
6
of Rs.3,00,000/- came to be paid by the plaintiff under Exs.A4 and A5
endorsements. Even though the trial court upheld the contention of the
plaintiff regarding the execution of Ex.A1-Agreement and payments made
under Ex.A1-Agreement and Exs.A2 to A5-endorsements, without
considering the question regarding the entitlement of the plaintiff to get a
decree for specific performance, it simply chose to grant a decree as per
the alternative prayer directing the first defendant to refund the sum of
Rs.3,00,000/- covered by Exs.A4 and A5 endorsements together with an
interest at the rate of 6% per annum from the date of plaint till
realisation. In view of the fact that the trial court negatived the prayer for
specific performance, the relief of permanent injunction sought for was
negatived by the trial court.
9. As against the judgment and decree of the trial court dated
17.11.2004, no appeal was preferred by the defendants. On the other
hand, the plaintiff alone filed an appeal before the District Court,
Coimbatore in A.S.No.90/2005. The learned lower appellate judge, after
hearing, re-appraised the evidence, allowed the appeal and modified the
decree of the trial court by granting the main relief, namely relief of
specific performance instead of the alternative relief of refund of advance
money with interest. Thereafter, the plaintiff as well as the first defendant
died and the LRs of the first defendant and the second defendant have
filed the present second appeal against the respondents 1 to 6, the LRs of
the deceased plaintiff Subbiah.
7
10. At the time of admission, the following questions were
formulated as substantial questions of law involved in the second appeal.
Substantial Questions of Law:
"1. Whether the decree for specific performance
of Exhibit A.1 granted by the Court below without framing
an issue considering the pleadings and materials and
giving a finding that the deceased plaintiff was always
ready and willing to perform his part of the sale agreement,
is not violative of Section 16(c) of the Specific Relief Act,
illegal, invalid and unenforceable?
2. Whether a decree for specific performance of
Exhibit A.1 sale agreement can be granted in respect of the
suit "B" schedule property, which is not described and not
agreed to be sold thereunder to the deceased plaintiff?
3. Whether in view of Article 54 of the Limitation
Act, the present suit for the specific performance of Exhibit
A.1 sale agreement dated 16.7.1992, filed about 8 years
after the date fixed for performance therein i.e. on
4.9.2000, in absence of proof for extension of time for
performance, is not barred by limitation?
4. Whether the deceased plaintiff who has filed
the suit for specific performance of Exhibit A.1 is not bound
to prove that Exhibit A.1 and the 4 endorsements (Exhibit
A.2 to 5) contained therein were executed by the deceased
1st defendant and it is true, valid and enforceable
document? Was the Court right in shifting the burden of
proof on the deceased 1st defendant, holding that he had
not proved that Exhibit A.1 was not executed by him and
granting a decree for specific performance?
5) Whether in view of the nature of facts and
Section 73 of the Evidence Act, by making a mere
comparison through naked eyes without even a report from
8
a Handwriting Expert, can it be safely concluded that the
signatures found in Exhibit A1 and the 4 endorsements
made therein (Exhibits A.2 to 5) are that of the deceased
1st defendant and whether such a conclusion arrived by
the Court below, that too, by merely referring to the
observation of the trial Court thereon, is sustainable in
law?"
11. The arguments advanced by Mr.T.P.Manoharan, learned
counsel for the appellant and by Mr.T.R.Rajagopalan, learned senior
counsel appearing for M/s.T.R.Rajaraman, counsel on record for the
respondent were heard. The materials available on record were also
perused and this court paid its anxious consideration to the same.
12. An appeal from the appellate decree of a court subordinate
to the High Court, shall lie to the High Court on a substantial question of
law as per Section 100 of the Code of Civil Procedure, 1908. Sub clause
(3) of Section 100 of CPC says that the appeal memorandum should
precisely state the substantial question of law involved in the second
appeal. Sub section (4) is to the effect that if the High Court is satisfied
that a substantial question of law is involved in the case it shall formulate
that question. Such a formulation of substantial question of law at the
time of admission is subject to the right of the opposite party to argue that
no such substantial question of law is involved in the second appeal. This
has been stated so in sub section (5) of Section 100 CPC. Relying on the
said sub section, it is argued on behalf of the respondents that, the case
9
does not involve any of the substantial question of law as formulated at
the time of admission.
13. According to the contention of the learned counsel for the
contesting respondents, the first and second defendants, having suffered
a decree for the refund of the advance amount based on Ex.A1-Agreement
and Exs.A4 and A5 endorsements, ought to have filed an appeal or at
least a cross objection in the appeal filed by the plaintiff before the lower
appellate court challenging the said decree and praying for the dismissal
of the suit in toto and since the defendants failed to do so, the findings of
the trial court regarding the genuineness and validity of Ex.A1-agreement
and Exs.A2 to A5 - endorsements have attained finality. The learned
counsel for the contesting respondents argued that the defendants, who
chose to contest the suit solely based on their contention that Ex.A1-
agreement and Exs.A2 to A5 endorsements were not genuine and on the
other hand were fabricated, could have no scope for re-agitating the
question of genuineness and validity of Exs.A1 to A5, after having suffered
a decree in the hands of the trial court and after having failed to challenge
the same either by way of an appeal or by way of a cross-objection before
the lower appellate court.
14. In this case, the deceased first defendant contended that he
never executed Ex.A1-agreement for sale. It was also his contention that
10
besides Ex.A1-agreement, Exs.A2 to A5-endorsements were also forged
and fabricated. In this regard, excepting the interested testimony of the
first defendant as DW1, there is no other evidence to support his
contention. On the other hand, the plaintiff, besides examining himself as
PW1, examined the attestors and others in proof of execution of Ex.A1-
agreement, the making of Exs.A2 to A5-endorsements and the passing of
consideration evidenced by Exs.A1 to A5. The said evidence was held to be
enough to prove the case of the plaintiff regarding the execution of the
agreement and the making of the endorsements. The said evidence shall
be sufficient at least to shift the burden and cast it on the defendants to
prove the said documents to be forged and fabricated. After fully
considering the evidence adduced on both sides, the learned trial judge
came to a conclusion that the plaintiff's case that the first defendant
executed Ex.A1-agreement for sale agreeing to sell plaint 'A' schedule
property at the rate of Rs.56,000/- per cent stood substantiated. The trial
court also held in clear terms that the payments alleged in the plaint and
the payments evidenced by Exs.A1 to A5 were proved. Only based on the
said finding, the learned trial judge chose to grant the alternative relief of
refund of advance amount with interest.
15. When the decree is based on a finding, the person against
whom such a finding is rendered and the decree is passed, ought to have
challenged it by filing an appeal or cross-objection in the event of the
decree holder filing an appeal against the disallowed portion of the claim.
11
If no such appeal or cross objection is filed, then such a finding will
attract the principle of res judicata in the later part of the proceedings.
Hence, this court is of the considered view that the appellants in the
second appeal are not entitled to raise and re-agitate the question of
genuineness or otherwise of Ex.A1-agreement for sale. They are also not
entitled to raise the question regarding the genuineness and binding
nature of the endorsements marked as Exs.A2 to A5. The bar of res
judicata will prevent them from questioning the finding of the trial court in
this regard. Therefore, the substantial question Nos.4 and 5 formulated at
the time of admission of the second appeal do not deserve consideration,
as they are not the substantial questions of law involved in the second
appeal.
16. The other contentions sought to be raised by the appellants
in the second appeal is that since the property described in plaint 'B'
schedule has not been separately described in Ex.A1-agreement as the
property agreed to be sold, the plaintiff shall not be entitled to the relief of
specific performance in respect of plaint 'B' schedule property. It is
pertinent to note that there is no dispute regarding the fact that plaint 'B'
schedule property is a part of plaint 'A' schedule property. According to
the plaintiff's case, a total extent of 6991 sq.ft. (16 cents) more fully
described in plaint 'A' schedule was agreed to be sold under Ex.A1-
agreement at the rate of Rs.56,000/- per cent. Admittedly, out of the
above said extent described in plaint 'A' schedule, an extent of 1302.5
12
sq.ft. was conveyed under the sale deed dated 13.09.1996 registered as
Document No.3314/1996 in the office of District Registrar, Coimbatore in
favour of E.Umayavel, the son-in-law of the plaintiff. A copy of the said
sale deed has been produced as Ex.A16. Similarly an extent of 2814.5
sq.ft. land, out of the total extent of 'A' schedule, was conveyed by the first
defendant under a sale deed dated 13.09.1996, registered as Document
No.3315/1996 in favour of U.Subbulakshmi, the daughter of the plaintiff.
A copy of the same has been produced as Ex.A15. Deducting the above
said extents of land from the total extent of plaint 'A' schedule, the
balance extent alone has been shown as the plaint 'B' schedule. A
comparison of description of the property provided in plaint 'B' schedule
with the description of property found in plaint 'A' schedule in conjunction
with the description of properties found in the sale deeds dated
13.09.1996 executed in favour of Umayavel and Subbulakshmi, will make
it clear that a portion of plaint 'A' schedule property alone has been shown
as plaint 'B' schedule property. It is also obvious that by seeking specific
performance in respect of plaint 'B' schedule property, the plaintiff sought
for the relief in respect of the property which was the subject matter of
Ex.A1. Such a prayer was made to complete the transaction based on
Ex.A1-agreement in its entirety, as the remaining portions had already
been sold to his son-in-law and daughter, who, according to him, were his
nominees. Therefore, the contention of the appellant that the plaintiff
should not have been granted the relief of specific performance in respect
of the plaint 'B' schedule property as though it has not been described in
13
Ex.A1-sale agreement cannot be countenanced. The second substantial
question of law is answered accordingly.
17. It is the contention of the learned counsel for the appellants
in the second appeal that the courts below omitted to frame a necessary
issue regarding compliance with Section 16(c) of the Specific Relief Act,
1963 and that therefore, the grant of main relief, namely the specific relief
directing the first respondent to execute the sale deed, has got to be
interfered with. It is true that the trial court did not frame a specific issue
as to the readiness and willingness of the plaintiff or in other words, the
compliance with section 16(c) of the Specific Relief Act. However, the nonframing
of such a specific issue is of no significance. The issue framed by
the trial court as to whether the plaintiff is entitled to the relief of specific
performance can be interpreted to contain in it the issue regarding
compliance with Section 16(c) of the Specific Relief Act. Normally, if the
defendants in a suit has taken a plea that the plaintiff was not ready and
willing to perform his part of the contract or that the plaintiff omitted to
plead his readiness and willingness as required under Section 16(c) of the
Specific Relief Act, then the non-framing of such a specific issue may be
considered to be a factor vitiating the judgment. Here is a case in which,
the defendant did not make a specific plea regarding the absence of
readiness and willingness on the part of the plaintiff. On the other hand,
he contested the suit solely on the plea that the suit agreement for sale
marked as Ex.A1 and the endorsements marked as Exs.A2 to A5 were
14
fabricated. In addition, a plea was taken in the written statement to the
effect that since the suit itself had been filed based on fabricated
agreement, the question of readiness and willingness on the part of the
plaintiff would not arise. Perhaps, the same prompted the trial court not
to frame a specific issue regarding the said aspect on the ground that
admitted facts or facts not specifically disputed need not be proved. The
learned lower appellate judge, who proceeded on the same footing, made
an observation that the reasons assigned by the trial court for denying the
main relief of specific performance directing execution of the sale deed
could not be sustained. Based on the said finding alone, the lower
appellate court chose to hold that the decree of the trial court was liable to
be modified by granting the relief of specific performance as per the main
prayer instead of the alternative prayer for refund of advance amount with
interest. In such cases wherein the parties have led evidence knowing
fully well the rival contentions of the parties, the second appellate court
can go into the said question based on the evidence adduced by the
parties with consciousness that such an issue was to be addressed in the
suit and render a finding.
18. Referring to the judgment of the Supreme Court in
Nedunuri Kameswaramma vs. Sampati Subba Rao reported in AIR
1963 SC 884 and Swamy Atmananda & Ors. Vs. Sri Ramakrishna
Tapovanam & Ors. reported in (2005) 10 SCC 51, this court approved
the above said proposition in Sridhandappa @ Rajappa vs. Muniamma
15
reported in (2014) 3 MLJ 684. The relevant portions from the said
judgment are extracted hereunder:
"....mere failure to frame an issue alone shall
not be the ground for remanding the case back to the
trial Court and that such omission would be an
irregularity capable of being cured by the appellate
Court or the second appellate Court if the parties were
very much aware of their respective pleas and
conscious of the respective pleas, they lead evidence in
full regarding such controversy also. In this regard,
reliance can be made to the judgment of the Hon’ble
Supreme Court in Nedunuri Kameswaramma vs.
Sampati Subba Rao reported in AIR 1963 SC 884 and
Swamy Atmananda & Ors. Vs. Sri Ramakrishna
Tapovanam & Ors. reported in (2005) 10 SCC 51. In
the first of the judgment cited above, namely Nedunuri
Kameswaramma’s case, a Larger Bench of the
Supreme Court consisting of three Hon’ble Judges
made the following observations:
“No doubt, no issue was framed, and the one,
which was framed, could have been more elaborate; but
since the parties went to trial knowing the rival case and
led all the evidence not only in support of their
contentions but in refutation of those of the other side, it
cannot be said that the absence of an issue was fatal to
the case, or that there was that mix-trial which vitiates
proceedings. We are, therefore, of opinion that the suit
could not be dismissed on this narrow ground, and also
that there is no need for a remit, as the evidence which
has been led in the case is sufficient to reach the right
16
conclusion. Neither party claimed before us that it had
any further evidence to offer.”
In the second of the judgment cited above, namely
Swamy Atmananda’s case, the Hon’ble Apex court
referring to the above cited observation of the Larger
Bench of the Supreme Court in Nedunuri
Kameswaramma’s case cited supra and following the
same, has made the following observation:
“ If the parties went to the trial knowing fully
well the real issues involved and adduced evidence in
such a case without establishing prejudice, it would not
be open to a party to raise the question of non-framing of
particular issue.”
19. In fact, even in the second appeal, it was not canvassed on
behalf of the appellants that there was absence of compliance with the
requirements of section 16(c) of the Specific Relief Act. On the other hand,
it was mainly contended that though no appeal or cross-objection against
the finding regarding the genuineness and validity of Ex.A1-agreement
was filed by the defendants, the lower appellate court ought to have
considered the same by exercising its power under Order XLI Rule 33 of
the Code of Civil Proedure and held that the suit agreement for sale and
the endorsements marked as Exs.A1 and A2 to A5 respectively, were not
genuine. This court is not in a position to accept the above said
contention. The question of genuineness and validity of the agreement and
endorsements attained finality and the only question that remained for
resolution by the lower appellate court was, "whether the plaintiff
17
(appellant before the lower appellate court) was entitled to the main relief
of specific performance directing the first defendant to execute the sale
deed in respect of plaint 'B' schedule property?". On facts also, this court
is satisfied that necessary pleadings regarding readiness and willingness
on the part of the plaintiff sufficient to meet the requirements of Section
16(c) of the Specific Relief Act had been made in the plaint and that
sufficient evidence was also adduced in proof of such averment. Therefore,
this court hereby holds that the first substantial question of law deserves
to be answered against the appellants in the second appeal.
20. The third substantial question of law is formulated on the
basis of the contention of the appellants that in Ex.A1 - agreement, time
for completion was noted to be six months, but the suit came to be filed
after a lapse of about 8 years and that hence the suit was hopelessly
barred by limitation. It is true that Ex.A1-agreement contains a recital to
the effect that the first defendant had undertaken to convey the suit
property under one or more sale deed/deeds for a sale consideration at
the rate of Rs.56,000/- per cent within six months from the date of
agreement. The relevant portion in vernacular is extracted here under:
",jdoapy; fhQqk; brhj;J tifauhit rh;t tpy;y';f Rj;jpahf
ehsJ njjp Kjy; 6 MW khjk; bfLtpw;Fs; 1yf;fkpl;lth;f;F brz;l;
1f;F U:gha;/56.000-? Ik;gj;jp Mwhapuk; U:gha; tPjk; Rj;jf;
fhyf; fpiuaKk; RthjPdKk; bra;J bfhLg;gjhf xg;g[f; bfhz;L
mjw;F ml;thd;!hf fpuaj;Jifapy; Xh; ghfk; U:gha; 100000-? xU
yT&k; kl;Lk; ehsJ njjpapy; 1yf;fkpl;lthplk; 2yf;fkpl;lth;
,jdoapy; fhQqk; rhT&pfs; Kd; buhf;fkhfg;
bgw;Wf;bfhz;lgoahy; ghf;fp cs;s fpiuaj;Jifia hp$p!;luhh;
mth;fs; Kd;buhf;fk; bgw;Wf; bfhs;tjhf fz;L 1yf;fkpl;lth; rpytpy;
18
1yf;fkpl;lth;f;fhtJk; 1yf;fkpl;lth; brhy;Yk; egh;fSf;fhtJk; 1 xU
fpiuakhfnth my;yJ gyfpiuakhfnth fpiuaKk; RthjPdKk; bra;J
bfhLf;f 2yf;fkpl;lth; xg;g[f; bfhz;oUf;fpwhh;/"
A reading of the entire recital found in the document makes it clear that
time had been stipulated for enabling the first defendant to get ready for
the execution of the sale deed after removing the occupants and that the
same was made clear by the pleading made by the plaintiff and the
evidence adduced on his behalf. The same was the reason why from time
to time the time for completion of the transaction was extended, as
evidenced by the endorsements Exs.A2 to A5. The last of such
endorsements, namely Ex.A5, came to be made on 15.05.1998. By such
an endorsement, time for performance was extended till 30.12.1999.
Demand was made in person and by issuing a notice well before the
expiry of the time extended as per Ex.A5 endorsement. A copy of the
notice dated 12.10.1999 and the postal acknowledgment card are Exs.A6
and A7. The first defendant is said to have issued a reply to the said
notice on 30.10.1999 itself and a copy of the same, acknowledgment card
and the certificate issued by the postal department have been produced as
Exs.B1 to B3. From the said documents, it shall be obvious that well
within the time extended under Ex.A5-endorsement, the plaintiff issued a
notice expressing his readiness and willingness to get the transaction
completed and calling upon the first defendant to come and receive the
balance amount and execute the sale deed. On the other hand, it was the
first defendant, who disputed his obligation under the agreement and
thereafter within the period of limitation, the plaintiff chose to file the suit
19
for specific performance. Therefore, there shall be no question of the bar of
limitation being attracted to the suit filed by the plaintiff, as it was well
within the period of limitation prescribed under Article 54 of the
Limitation Act, 1963. Therefore, the third substantial question of law is
also answered accordingly against the appellant and in favour of the
respondents in the second appeal.
21. In view of the foregoing discussions, this court comes to the
conclusion that there is no merit in the second appeal and the same
deserves dismissal.
In the result, the second appeal is dismissed with cost.
Consequently, all the connected miscellaneous petitions are closed.
23.02.2015
Index : Yes
Internet : Yes
asr/-
To
The Principle District Judge, Coimbatore
20
P.R.SHIVAKUMAR.J.,
asr
Judgment
in S.A.No.628 of 2008
23.02.2015
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