Dismissed

Rajan v. Subramaniyan

Kerala HC16 Jul 2019RSA/928/2005

Case brief

AI extract

What is this about?

The High Court dismissed the appeal in a suit for specific performance of a sale contract. The court held that despite the appellants' arguments regarding property extent and hardship, no grounds existed to exercise discretion to deny relief, and the lower appellate decree was upheld.

What did the court decide?

Second appeal dismissed without costs; decree for specific performance of 6.5 cents upheld.

Rajan Vs Subramaniyan — Specific Performance | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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TUESDAY, THE 16TH DAY OF JULY 2019 / 25TH ASHADHA, 1941

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RSA.No.928 of 2005 (B)

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AGAINST THE DECREE & JUDGMENT DATED 31-05-2005 IN AS No. 94/2002 of II ADDL. DISTRICT COURT, PALAKKAD

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AGAINST THE DECREE & JUDGMENT DATED 28-11-2001 IN OS No.502/2000 of MUNSIFF COURT, CHITTUR

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APPELLANTS /RESPONDENTS/DEFENDANTS:-

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1 RAJAN, S/o LALI THATHA, THEKKE MURI, NALLEPPILLY, CHITTUR TALUK, PALAKKAD DISTRICT.

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2 MANI, D/o LALI THATHA, - DO.DO-

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BY ADVS.SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P SRI.M.V.BIPIN

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RESPONDENT/APPELLANT/PLAINTIFF:

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SUBRAMANIYAN, S/o KUNJAN, THEKKEMURI, NALLEPPILLY, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADVS.SRI.K.M.KURIAN SRI.P.VIJAYAKUMAR

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16.07.2019. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

R.S.A.No.928 of 2005

JUDGMENT

A suit for specific performance of contract for sale of

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immovable property ended in a decree of return of the advance amount in the Trial Court. But, in appeal a decree for specific performance of the contract was granted with respect to 6.5 cents of property, the plaint schedule. Aggrieved by the said decree and judgment, the defendants came up with this appeal.

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The plaint schedule having an extent of 6.5 cents originally belonged to the mother of defendants, who had obtained the property under 'tharikuthy lease'.

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Subsequently, she had obtained purchase certificate over the property. After her death, the property devolved upon the defendants, who in turn executed Ext.A1 agreement for sale.

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There is no dispute with respect to due execution of Ext.A1 agreement for sale. The property agreed to be sold constitute 5 cents in Sy.No.409/8 and 1.5 cents in Sy.No.409/7, having a total extent of 6.5 cents. It was submitted by the learned counsel for appellants that what they have agreed to sell is only 5 cents of property excluding the 1.5 cents of property comprised in

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R.S.A.No.928 of 2005 3

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subdivision No.7 on the reason that the plaintiff's residential building is situated in that portion. It is also submitted that at the time of agreement the first defendant has no other property except the plaint schedule property. The First Appellate Court rejected the said contention on the reason that there is a clear admission by the plaintiff regarding the execution of Ext.A1 contract for sale wherein what is agreed to be sold comes to 6.5

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cents with specification that 5 cents comprised in subdivision No.8 and 1.5 cents comprised in subdivision No.7. Further, just before the suit, the defendants have issued a demand notice calling upon the plaintiff to come and get the sale deed executed in performance of their part of contract, Ext.A1, with respect to the total extent of

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property of 6.5 cents. The subsequent demand would constitute an admission regarding what is really agreed

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upon by the parties which constitute large extent of 6.5 cents.

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The learned counsel also took support from Section 20(2) (b) so as to advance a case of hardship which was not foreseen by the defendants at the time when the contract was entered into, as there is an intervening property between 5 cents of property in subdivision No.8 and 1.5

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R.S.A.No.928 of 2005

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cents of property in subdivision No.7. Admittedly, this intervening property is not belonged to the defendants and defendants have no right, title or interest over the intervening property. If that be so, there is no occasion for causing any hardship by the performance of the contract for sale as agreed into under Ext.A1. Section 20 (2) (b) will not stand attracted. No other issue was raised before me by the learned counsel for appellants except the identification of property. There cannot be any dispute pertaining to identification of the property as what is agreed into under Ext.A1 is the entire estate held by the plaintiff at that time.

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Yet another ground was also raised by the learned counsel for the appellants that the First Appellate Court failed to exercise the discretion vested under Section 20 of the Specific Relief Act. Needless to say that a suit for specific performance stands on a different pedestal from that of other suit wherein it is not permissible to grant a decree even if it is found that it is lawful to do so and the court has to exercise its discretion not to grant specific performance. In short, the discretion has to be exercised in a negative way so as to deny the relief and not to grant the same. All these would cast a duty on the

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R.S.A.No.928 of 2005

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court to address the discretion vested under Section 20

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while granting a specific performance of the contract for sale. Needless to say that the question of discretion would come into play only after finding that the grant of a decree is lawful. The necessary corollary is that the court must address the discretion under Section 20 while granting specific performance of the contract for sale and the decree, if any, passed without addressing the discretion under Section 20 would be bad in law.

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In the instant case, nothing brought out so as to show the application of Section 20 of the Act and to exercise the discretion not to grant specific performance.

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Hence, the appeal deserves no merits, liable to be dismissed, but without costs.

Sd/-

P.SOMARAJAN

JUDGE

DMR/-

Rajan v. Subramaniyan

Case brief

What is this about?

What did the court decide?

Rajan v. Subramaniyan

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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