Allowed

Smt. Anjuman v. Sri Shabbir

Allahabad HC18 Jul 2018SAPL/1574/1984

Case brief

AI extract

What is this about?

In a second appeal regarding specific performance of an agreement to sell, the court allowed the appeal. It held that the lower appellate court erred in reversing the trial court by failing to address relevant circumstances, such as the plaintiff's consent to reconstruction and subsequent eviction proceedings, thereby leaving the suit within the limitation period.

What did the court decide?

The judgment of the lower appellate court was set aside; the trial court's judgment was affirmed and restored; second appeal allowed.

Smt. Anjuman Vs Sri Shabbir — Specific Performance | Allahabad HC (2018)

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Reserved

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Court No. - 9 Case :- SECOND APPEAL No. - 1574 of 1984 Appellant :- Smt. Anjuman Respondent :- Sri Shabbir Counsel for Appellant :- Ravi Kiran Jain,K. Awasthi,K.K. Asthana,M. Islam,M.A. Qadeer,R.K. Rai,R.K.Awasthi,Shamim Ahmad,Virendra Kumar Counsel for Respondent :- H.S.Nigam,Ajay Kumar Singh,Anil Sharma,Ashfaq Ahmad Ansari,Ashish Kumar Singh,K.A.Usmani,Mohd. Arif,Shabbir Ahmad

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Hon'ble Anjani Kumar Mishra,J.

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Heard Shri M.A. Qadeer, learned Senior Counsel for the appellant. I have also perused the written argument filed by Shri Ashish Kumar Singh for the respondent.

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This is a plaintiff's second appeal arising out of a suit for specific performance of an agreement to sell. The suit filed by the plaintiff-appellant was decreed by the trial Court. The judgment and decree was reversed in appeal and the suit was dismissed. Hence this second appeal.

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This second appeal had earlier been dismissed by this Court. The judgment of the High Court was set aside by the Apex Court and the matter remitted back for a fresh decision. The second appeal has been admitted on the substantial question of law as to whether the suit for specific performance was barred by time.

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The suit was filed on the ground that an agreement to sell had been executed on 31.07.1975 regarding a house. Under the agreement, the defendant had to apply for permission to sell the property within a period of 8 days. Once the permission was received, the defendant was required to inform the plaintiff and the sale deed thereafter was to be executed within 15 days from the receipt of the intimation of the permission. Rs. 1,000/- was paid as earnest money while the sale consideration was fixed at Rs. 6,000/-. It was also alleged that the defendant can be postponed the execution of the sale deed on one pretext or the other. In 1978 the house in question fell down. The plaintiff got the same reconstructed with the consent of the defendant after getting a map sanctioned by the Nagar Palika.

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Ultimately, the suit was filed on 31.01.1980. The defence in the suit was that no agreement to sell had been executed by the defendant and that the suit was barred by time as it was instituted, more than 5 years after the alleged agreement was said to have been executed. Therefore, also the plaintiff was not ready and willing to purchase the property. No notice for executing the sale deed had been given by her and that she had materially altered the suit property.

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Upon appreciation of the evidence on record, both the courts below have found that the agreement to sell had been executed by the defendant. Although, the trial Court did not find the suit to be barred by time, the lower appellate Court has opined, on the basis of various clauses of the agreement to sell, that under

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the agreement to sell, the defendant was required to apply for permission to execute the sale from the District Magistrate within 8 days of the agreement. On receipt of the permission, he would give a notice to the plaintiff, within 15 days, the sale deed was to be executed. Therefore, time was whereafter the essence of the contract and that the limitation for filing the suit started to run, 23 days from the agreement to sell.

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The lower appellate Court has observed that "the plaintiff-respondent did not take any steps to show that the defendant-appellant had applied for permission or not". Since the plaintiff had not taken any steps for five long years, the same indicated that she was not ready in willing to perform her part of the contract.

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The other reason given for coming to this conclusion was that no notice had been given by the plaintiff to the defendant to execute the sale deed. It was also observed that the plaint allegation that the final refusal to execute the sale deed was made in July, 1978 was a verbal assertion not supported by any evidence on record and that it had been made only to bring the suit within limitation. On the aforesaid findings and reasoning, the trial Court judgment was reversed.

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The contention of counsel for the appellant is that time was not the essence of the contract. The plaintiff, was under the impression that the permission required for selling the property must have been applied for by the defendant. The period of limitation for filing the suit would commence only from the date, receipt of permission of the District Magistrate was communicated to the plaintiff. No such communication was ever given to the plaintiff. In fact, the defendant never applied for permission. The trial Court had rightly held the suit to be within time. The lower appellate Court has taken a view to the contrary within adverting to the various circumstances relied upon by the trial Court. For this reason alone, the judgment of reversal passed by the lower appellate Court is unsustainable.

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On behalf of the defendant-respondent, the written argument filed is on the same lines as the reasoning given by the lower appellate Court. Reliance has also been placed upon clause 3 and 4 of the agreement to sell to reiterate that the limitation for filing the suit would begin to run 23 days after the agreement to sell was signed. It has also been stated that eviction proceedings against the plaintiff were drawn, wherein, her eviction was ordered and in execution proceedings possession has been handed over to the defendant. He is in possession of the house in question as on date. Under the circumstances, neither law nor equity lies in favour of the plaintiff-appellant.

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He has placed reliance upon the following judgments:-

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1. K.S. Vidyanadam And Others Vs. Vairavan, 1997 (3) SCC 1.

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2. R.K. Parvatharaj Gupta Vs. K.C. Jayadeva Reddy, 2006 (2) SCC 428.

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3. Citadel Fine Pharmaceuticals Vs. Ramaniyam Real Estates Private Limited And Another, 2011 (9) SCC 147.

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4. His Houness Acharya Swami Ganesh Dassji Vs. Sita Ram Thapar, SC 1996-4-105.

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I have considered the submissions made and perused the record.

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I find substance in submissions of counsel for the appellant that the circumstances relied upon by the trial Court for holding the suit to be within time and also for holding that the plaintiff was, all along, ready and willing to perform her part of the contract, have not at all been adverted by the lower appellate Court in its judgment of reversal. This relevant circumstance is the fact that admittedly, the accommodation in dispute was reconstructed in the year 1978 by the plaintiff, after getting a map sanctioned and after taking the permission of the defendant who admittedly had not objected to it. He had, in fact, permitted reconstruction at the plaintiffs' expense.

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The trial Court also accepted the case of the plaintiff that about Rs. 5,000/- had been spent in such reconstruction, especially because no evidence in rebuttal was adduced by the defendant.

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It therefore, opined that till the time the house was reconstructed in the year 1978, the plaintiff was ready and willing to perform her part of the contract that till this time, there was no refusal by the defendant to execute the sale deed.

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In this connection, it would also be relevant to note that from the material on record, it transpires that proceedings for eviction of the plaintiff had been drawn on 06.11.1980, on the ground of arrears of rent. The SCC suit was ultimately decreed and in execution proceedings possession was obtained by the defendant, as is the case in the written argument, filed on his behalf. The instant suit for specific performance has been filed on 31.01.1981 i.e. soon thereafter.

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Coupled with the reasoning given by the trial Court, this Court is of the considered opinion that the filing of the SCC Suit for arrears of rent and eviction on 06.11.1980, can definitely be construed as the date on which the defendant refused to execute the sale deed and instead sought the plaintiff's eviction. The instant suit having been filed within 3 months from the date of the eviction, suit, cannot be said to be barred by time. Besides, this Court is in agreement with the reasoning given by the trial Court for holding the suit to be within time.

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The lower appellate Court has committed manifest illegality in reversing the finding of the trial Court on this issue, without adverting to the various facts and circumstances relied upon by the trial Court. It is settled law that such an approach is not permissible. A judgment of reversal is necessarily to be passed only after addressing each and every circumstances relied by a sub-ordinate Court for arriving the finding which is being reversed.

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Under the circumstances, this Court finds that the judgment of the trial Court and the various circumstances relied upon by it, was perfectly correct and justified. The finding of the trial Court has been cursorily reversed by the lower appellate Court, without adverting to all the circumstances, which had prompted

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the trial Court to decide in favour of the plaintiff, especially the fact that the accommodation in question was reconstructed by the plaintiff in 1978 after getting the map sanctioned and with the due and admitted, consent of the defendant.

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For the same reason, the lower appellate Court was not justified in holding that the plaintiff was not ready and willing to perform her part of the contract or that the suit was barred by time.

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Under the circumstances, the judgment of the lower appellate Court cannot be sustained and is required to be set aside. The substantial question of law framed in this second appeal has to be answered in favour of the plaintiff-appellant. Moreover, the judgement cited by the respondent are clearly distinguishable on facts.

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In view of the foregoing discussion, the second appeal is allowed. The judgment of the appellate Court is set aside and that of the trial Court is affirmed and restored.

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No order as to costs.

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Order Date :- 18.07.2018 Mayank

Smt. Anjuman v. Sri Shabbir

Case brief

What is this about?

What did the court decide?

Smt. Anjuman v. Sri Shabbir

Case brief

What is this about?

What did the court decide?

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