This regular second appeal was filed challenging the dismissal of a suit for specific performance of a sale agreement. The High Court rejected the admission of fresh bank evidence and dismissed the appeal as no substantial question of law arose to disturb the lower courts' concurrent findings regarding the appellant's readiness and willingness.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
RSA No. 384 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JUNE, 2023
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI REGULAR SECOND APPEAL NO.384 OF 2022 (SP)
BETWEEN:
S.R. ASHOK KUMAR S/O S.R. JAYARAMAPPA, AGE: 46 YEARS, R/O AGALI VILLAGE, AGALI MANDAL, MADAKSIRA TALUK, ANANTHPURA DIST - 515 311.
…APPELLANT
(BY SMT.NANDITA D.HALDIPUR., ADVOCATE)
AND:
Digitally signed by THEJASKUMAR N Location: HIGH COURT OF KARNATAKA
B.H.NAGARATHNA W/O M. RAMACHANDRAIAH, AGE 50 YEARS, (XRAY T ECHNICIAN AT SRIDEVI DIAGNOSTIC AND RESEARCH CENTER TUMKUR), THE PRESENT ADDRESS, R/O CENTER HOUSE OF RAVI DARSHINI AND SMT. VEENA HOUSE, AAIDAKII LAKSHMAMMA APARK (BACK SIDE) 3RD CROSS, 2ND LINK ROAD, SIT TUMKUR - 572 102.
…RESPONDENT
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC., SEEKING CERTAIN RELIEFS.
THIS APPEAL IS COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
Smt.Nandita Haldipur., learned counsel for the appellant has appeared in person.
4. The brief facts are these:
It is the case of the plaintiff that the defendant being the owner of the suit schedule property agreed to sell the same for a sale consideration of Rs.3,00,000/- (Rupees Three Lakh only). Accordingly, a sale agreement was entered into between them on 18.12.2010 and earnest money of Rs.20,000/(Rupees Twenty Thousand only) was paid to the defendant. It is also averred that time was the essence of the contract. Since the defendant failed to perform his part of the contract within the time fixed in the sale agreement, the plaintiff was constrained to issue legal notice on 10.03.2011 calling upon the defendant to execute the registered sale deed in his favor, but
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in vain. Hence, he was constrained to take shelter under the Court of law and filed a suit for specific performance.
After service of the suit summons, the defendant appeared through her counsel and filed a written statement and denied the plaint averments and also denied the entire sale transaction with the plaintiff. The defendant specifically contended that she never agreed to sell the property and she never executed any agreement and she has not received the amount as alleged by the plaintiff. She contended that in order to grab the property the plaintiff has filed a false suit. Among other grounds, she prayed for the dismissal of the suit.
framed the following:
ISSUES
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To substantiate the claim, the plaintiff examined himself as PW1 and two more witnesses as PW2 & 3 and produced nine documents which were marked at Exs.P.1 to P9. On the other hand, the defendant examined herself as DW1 and produced one document marked at Ex.D.1.
On the trial of the action, the Trial Court rejected the claim of specific performance and directed the defendant to
RSA No. 384 of 2022
repay the earnest money of Rs.20,000/- (Rupees Twenty Thousand only) to the plaintiff at the rate of 10% per annum from the date of agreement till realization within three months. On appeal, the First Appellate Court confirmed the Judgment and Decree of the Trial Court. Hence, this Regular Second Appeal is filed under Section 100 of CPC.
Next, she submits that the defendant has made out a false case that she wanted to borrow a loan from Andra Pragati Grameen Bank and that pretext the appellant has taken the signature on blank paper which contention has not been accepted by the Trial Court.
A further submission is made that the Trial Court has answered Issue No.1 i.e., proof of execution of sale agreement in the affirmative. However, rejected the claim only on the ground that the plaintiff has failed to prove that he was ready
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and willing to perform his part of the contract. It is also submitted that the Trial court has failed to note that the plaintiff had issued a legal notice to the defendant intimating that he is ready and willing to pay the balance amount and get the site registered.
Learned counsel submits that an application I.A.No.1/2022 is filed under Order 41 Rule 27 of CPC for the production of additional documents i.e., the bank statement of the plaintiff of Karnataka Bank from 01.12.2010 to 01.06.2011 to show that the plaintiff had the financial capacity.
Lastly, she submits that viewed from any angle, the Judgments & Decrees of the Trial Court and Appellate Court are unsustainable in law. Therefore, this Regular Second Appeal raises substantial questions of law and the appeal may be admitted.
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In this case, the plaintiff sued for specific performance. The law is well-settled that specific performance is equitable relief, given by the court to enforce against a defendant, the duty of doing what he agreed by contract to do. The party seeking specific performance must show that an enforceable contract exists; that the contract has been concluded between himself and the defendant, and that the plaintiff is ready and willing at all material times to perform. Unless there is a concluded contract between the parties, the plaintiff is not entitled to a decree for specific performance. Thus, the onus is on the plaintiff to prove his case.
Reverting to the facts of the case, the plaintiff adhered to the contention that he was always ready and willing to perform his part of the contract. Before this court also, he adhered to the said contention.
A good deal of argument is canvassed on readiness and willingness. As already noted above, the controversy revolves around readiness and willingness hence, let us quickly glance at the distinction between the two. The distinction, between readiness and willingness, is that the former has reference to
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financial capacity, and the latter on the conduct of the plaintiff wanting specific performance.
While ‘willingness’ is merely a mental process, ‘readiness’ is something to do with translating that will into action and is preceded by the necessary preparation of being in a position to be ready. In other words, while ‘willingness’ may be something to do mainly with a person’s mental process to do an act, his readiness implies proximity to such willingness and its ultimate physical manifestation. ‘Readiness’ must, in all cases, be backed by ‘willingness’ and its imminent physical action is demonstrated when it is about to be put into action.
It is pivotal to note that a purchaser claiming specific performance of the contract must show that he was since the date of the contract, up to the date of hearing- continuously ready and willing to perform his part of the contract, failing which his claim for specific performance must fail.
I have considered the specific contention about readiness and willingness and whether time was the essence of the contract. But we have already noted above, the distinction between readiness and willingness and the financial capacity
RSA No. 384 of 2022
refers and relates only to readiness. I may venture to say that readiness must, in all cases, be backed by ‘willingness’, and its imminent physical action is demonstrated when it is about to be put into action.
It is pivotal to note that the Trial Court framed as many as six issues. The issue of readiness and willingness has been negatived by both courts. The Trial Court in extenso referred to the material on record and concluded that the plaintiff was not having the financial capacity to pay the balance consideration. In the present case time was the essence of the contract. hence, the onus is on the plaintiff to show that he was ready and willing to perform his part of the contract.
Learned counsel Smt.Nandita D.Haldipur., in presenting her argument vehemently contended that the Trial Court had erred in concluding that the plaintiff is not ready and willing to perform his part of the contract solely on the ground that the plaintiff was unable to show his bank statement. She argued by saying that an application under Order 41 Rule 27 of CPC is filed for the production of additional evidence and drew the attention of the court to the document. The bank statement of
RSA No. 384 of 2022
the plaintiff of Karnataka Bank from 01.12.2010 to 01.06.2011 is filed to show that he has sufficient funds in his bank account to perform his part of the contract. Learned counsel submits that the appellant may be permitted to produce additional evidence and the same may be taken on record.
I have perused the application and also the true copy of the bank statement filed along with the application.
Under Rule 27 of Order 41, production of additional evidence, whether oral or documentary is permitted only under three circumstances which are: (1) the trial Court had refused to admit the evidence though it ought to have been admitted (2) the evidence was not available to the party, despite the exercise of due diligence; and (3) the Appellate Court required additional evidence so as to enable it to pronounce better judgment or for any other substantial cause of like nature.
The true test is whether the appellate Court can pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. When the appellate Court finds itself unable to
RSA No. 384 of 2022
pronounce judgment owing to a lacuna or defect in the evidence as it stands, it may admit additional evidence.
In the present case, an attempt is made on behalf of the appellant to produce the bank statement as additional evidence. The appellant S.R.Ashok Kumar has sworn to an affidavit and has stated that the bank statement is a crucial document and at the time of filing of the suit he was not aware that the document sought to be produced now was required to be filed as he is not conversant with the legalities in the matter. Hence the same may be accepted.
I propose to say that the production and leading evidence in appellate Court, oral or documentary, is not a matter of right, or ipso facto. I would observe that the parties can produce evidence only when the conditions laid down in Rule 27 of Order 41 are satisfied. The reasons accorded for the production of additional evidence do not meet the requirements of Order 41 Rule 27 of the Code. Furthermore, the law is well settled the power is discretionary and must be exercised on sound judicial principles. In my view, the appellant has failed to satisfy the conditions laid down under Order 41 Rule 27 of the
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Code. Hence, I decline to exercise the discretionary power and accordingly the application is rejected.
The Trial Court in extenso referred to the material evidence on record and dismissed the suit of the plaintiff and declined to grant the relief of specific performance. The Appellate Court confirmed the judgment and decree of the Trial Court. It is pivotal to note that the relief of specific performance is discretionary, and it is not given merely because it is lawful to do so, but it is governed by sound judicial principles. The grant of this relief is the discretion of the court, and cannot be claimed as a matter of right. The exercise of discretion to order specific performance would require the court to be satisfied the circumstances are such that it is equitable to make such a decree. A discretion exercised by the Trial Court will not be interfered with in appeal unless it has been exercised perversely, arbitrarily, capriciously, unreasonably, or against judicial principles. In my view, the trial court, as well as the appellate court, have concurrently declined to exercise the discretion to grant specific performance, hence, I decline to interfere with it in the second appeal.
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It is pivotal to note that the Trial Court extenso referred to the material on record and dismissed the suit for specific performance. The First Appellate Court has examined the evidence on record and re-appreciated it. I am satisfied that it has been appreciated from the correct perspective. The concurrent finding of facts, however erroneous, cannot be disturbed by the High Court in the exercise of the power under section 100 of CPC. The substantial question of law has to be distinguished from a substantial question of fact. In my view, the findings recorded by both courts are either vitiated by nonconsideration of relevant evidence or by an erroneous approach to the matter. Where based on evidence on record the Trial Court and the First Appellate Court had concurrently arrived at a finding of fact, the High Court in the second appeal cannot reverse the said concurrent findings under ordinary circumstances.
It is perhaps well to observe that after the 1976 amendment, the scope of Section 100 of the CPC has been drastically curtailed and narrowed down. Under Section 100 of the Code of Civil Procedure 1908 (as amended in 1976) the jurisdiction of the High Court to interfere with the judgment of
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the court below is confined to hearing substantial questions of law. Interference with a finding of a fact by the High Court is not warranted if it involves re-appreciation of the evidence.
No substantial question of law arises for consideration in this appeal. As a result, I find no merit in this appeal, and accordingly, it is dismissed at the stage of admission.
No order as to costs.
Sd/JUDGE
TKN List No.: 1 Sl No.: 37
2 issues framed by the court
Whether the appellant satisfies the conditions for admission of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure.
Whether the High Court can interfere with concurrent findings of fact by lower courts when no substantial question of law arises under Section 100 of the Code of Civil Procedure.
2 provisions across 1 enactments
S.R. Ashok Kumar
B.H. Nagarathna
Jyoti Mulimani
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
