Dismissed

Sushama v. M.v.Pavithran

Kerala HC4 Dec 2023RSA/100/2023

Case brief

AI extract

What is this about?

This second appeal challenged a decree for specific performance of a sale agreement. The High Court held that execution of the agreement was proved by evidence of attesting witnesses and corresponding sale deeds executed by other parties, and that readiness and willingness were established. Dismissed.

What did the court decide?

The second appeal fails and is dismissed; the decree and judgment of the lower courts are confirmed.

Sushama Vs M.v.Pavithran — Specific Performance | Kerala HC (2023)

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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 A. BADHARUDEEN

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MONDAY, THE 4TH DAY OF DECEMBER 2023 / 13TH AGRAHAYANA, 1945

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RSA NO. 100 OF 2023

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AGAINST THE DECREE AND JUDGMENT DATED 13.08.2021 IN A.S.NO.70 OF
2018 ON THE FILES OF THE COURT OF ADDITIONAL DISTRICT AND SESSIONS
JUDGE-IV, PATHANAMTHITTA ARISING FROM THE DECREE AND JUDGMENT
DATED 16.08.2018 IN O.S.NO.190 OF 2010 ON THE FILES OF THE COURT
OF THE SUBORDINATE JUDGE, PATHANAMTHITTA

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APPELLANT/SOLE LEGAL REPRESENTATIVE OF ORIGINAL DEFENDANT &
APPELLANT IN THE A.S.:

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SUSHAMA
AGED 47 YEARS,
D/O LATE CHANDRAMATHI T.P., RAJ BHAVAN, PUNTHALA P.O.,
VENMONY, ALAPPUZHA, PIN - 689509
BY ADVS.
GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
MANU SRINATH
NIMESH THOMAS

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RESPONDENT/RESPONDENT/PLAINTIFF:

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M.V.PAVITHRAN
S/O LATE VELUTHAKUNJU, MINI BHAVAN, V.KOTTAYAM MURI,
V.KOTTAYAM VILLAGE, KOZHENCHERRY TALUK,
PIN - 689656
BY ADV JOSE PALLATTUKARAN

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ORDERS ON
04.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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R.S.A. No. 100 of 2023

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JUDGMENT

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Dated this the 4^th day of December, 2023

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This regular second appeal has been filed under order XLII Rule 1 read with Section 100 of the Code of Civil Procedure (“CPC” hereinafter) challenging the decree and judgment in A.S. No.70 of 2018 dated 13.08.2021 on the files of the Court of the Additional District Judge-IV, Pathanamthitta arose from decree and judgment in O.S. No.190 of 2010 dated 16.08.2018 on the files of the Court of the Subordinate Judge, Pathanamthitta. The appellant herein is sole legal representative of the original defendant and the respondent is the plaintiff in O.S. No. 190 of 2010.

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Heard the learned counsel for the appellant as well as the learned counsel appearing for the respondent.

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The parties in this appeal will be referred as plaintiff and defendant hereinafter for convenience.

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As per order dated 02.08.2023, my learned predecessor admitted this appeal on the substantial

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R.S.A. No. 100 of 2023

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questions of law framed in the memorandum of appeal. The said procedure seems to be illegal, since the court shall formulate substantial questions of law to admit second appeal. Therefore, the substantial questions of law in the facts of the given case are formulated as under:

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(i) Whether the courts below erred in holding that Exhibit A1 sale agreement stood proved?

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(ii) Whether the Courts below went wrong in granting decree for specific performance, without addressing readiness and willingness on the part of the plaintiff?

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(iii) Whether the First Appellate Court wrongly modified the decree under Order 41 Rule 33 of the Code of Civil Procedure, 1908?

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(iv) Did not the Courts below err in gross mis-appreciation of evidence and law in passing the impugned decree?

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The plaintif f f i led the suit seeking performance of a contract of sale and for prohibitory injunction. According to the plaintif f an agreement was executed on 03.12.2009

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R.S.A. No. 100 of 2023

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in between the plaintif f M.V. Pavithran and T.P. Chandramathy (the defendant) along with her brothers Mr.Viswanathan and Mr.Sreekumar. Thereby, T.P. Chandramathy, Viswanathan and Sreekumar agreed to sell their property obtained by partition deed No.447/1987 of S.R.O, Konny. The sale price agreed upon between the parties was Rs.19,500/- per cent. The property agreed to be sold in respect of T.P. Chandramathy is 50 cents, Viswanathan is 60 cents and Sreekumar is 60 cents.

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Though, Viswanathan and Sreekumar executed sale deed in favour of the plaintif f in terms of the agreement, T.P. Chandramathy, who is the sole defendant herein refused performance of the agreement and thereby this suit was necessitated.

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The defendant entered appearance and fled i written statement. The defendant denied execution of the agreement in toto and also denied acceptance of Rs.5,001/as advance sale consideration as alleged by the plaintif f .

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The trial court recorded evidence conf i ned to that of PWs 1 to 5 and Exts.A1 to A7 on the side of the plaintif f .

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R.S.A. No. 100 of 2023

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No witness examined and exhibits marked on the side of the defendant. Exts.C1 to C2(a) were also marked as Court exhibits.

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Finally, the trial court found that the plaintif succeeded in proving the execution of the sale agreement produced as Ext.A1 and the readiness and willingness on the part of the plaintif f to perform his part of contract. Consequently the suit was decreed directing the defendant to execute the sale deed in favour of the plaintif f within a period of three months on receipt of the balance consideration.

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10. Though, appeal f i led before the District Court, Pathanamthitta as A.S. No.70/2019, the Appellate Court concurred the fnding of the trial court and modif i i ed the decree enabling the plaintif f to get executed the sale deed through the process of the court by depositing the balance sale consideration if the defendant fails to execute the sale deed in terms of the decree. The respondent is also allowed to recover the costs of the appeal from the appellant.

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11. The learned counsel for the appellant submitted

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R.S.A. No. 100 of 2023

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that the courts below went wrong in holding that the plaintif f succeeded in proving Ext.A1. According to the learned counsel, there is discrepancies in the schedule description with regard to the extent of property in Ext.A1 as well as Ext.A7 partition deed.

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12. It is pointed out that as per Ext.A1 agreement,

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the extent of property agreed to be sold is 50 cents whereas, as per Ext.A7, T.P. Chandramathy obtained only 30 cents in the Survey number shown in the agreement, though, she had properties nearby the said Survey number in excess of 30 cents. It is pointed out further that when calculating the sale consideration as shown in Ext.A1 along with sale consideration shown in relation to the plaint schedule property the same is less and the same shadows doubt as to execution of Ext. A1.

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13. The trial court given emphasis to the evidence of PW1, the plaintif f as well as PW2 an attesting witness to Ext.A1 and also taken note of the fact that acting on Ext.A1 agreement, the other executants of Ext.A1, viz. Viswanathan and Sreekumar categorically admitted the

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R.S.A. No. 100 of 2023

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agreement and in terms of the agreement they have executed Ext.A4 sale deed in favour of the plaintif f .

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14. The Appellate Court also concurred the f i nding of

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the trial court, though the decree granted by the trial court was slightly modif i ed.

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15. The present suit is one for execution of an agreement for sale. Therefore, in order to grant the relief, which is discretionary in nature, before the amendment of the Specif i c Relief Act, 1963, t he court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance, as provided under Section 20(3) of the Specific Relief Act, 1963.

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It is true that as per Section 20(2) of the Specific Relief Act, 1963, the cases in which the court may properly exercise discretion not to decree specific performance are (a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into

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R.S.A. No. 100 of 2023

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are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or (b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; or (c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.

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The law is well settled that as per Section 20 of the Specific Relief Act, 1963, the jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. As provided under Section 16(c) of the Specific Relief Act, the primary requirement for the plaintiff is to aver and prove the readiness and willingness to perform his part of contract.

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18. Thus the relevant points to be considered are

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R.S.A. No. 100 of 2023

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whether the plaintif f proved execution of Ext.A1 and also pleaded and proved readiness and willingness to perform his part of contract.

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19. On perusal of the evidence given by PWs 1 and 2 read along with Ext.A1, on no stretch of imagination, it could be found that the plaintif f failed to prove Ext.A1, in any manner. The evidence of PW1 supported by PW2 an attesting witness to Ext.A1 emphatically proved the execution of Ext.A1. That apart, Ext.A4 is the sale deed executed by Viswanathan and Sreekumar in favour of the plaintif f pursuant to the execution of Ext.A1. Thus this is a case where the other parties in Ext.A1 agreement executed the sale deed in favour of the plaintif f in relation to the properties covered by Ext.A1, acting on Ext.A1.

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20. Thus, the essential ingredients to succeed in a suit for specif i c performance are proof of the document and proof of readiness and willingness of the plaintif f to perform his part of contract, supported by necessary pleadings thereof. In the case at hand, as I have already pointed out, the evidence of PW1 supported by PW2 read with Ext.A4,

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R.S.A. No. 100 of 2023

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the sale deed executed by the other parties of Ext.A1 categorically proved the execution of Ext.A1 by the defendant herein. As far as the question of readiness and willingness is concerned, in the plaint there are specif i c averments in this regard and Ext.A6 the draft sale deed prepared for the purpose of execution at the instance of the defendant and failure to register the same because of the reluctance on the part of the defendant in executing the same coupled with evidence of PW1 would go to show that the plaintif f has been always ready and willing to perform his part of contract and in such view of the matter also the discretionary relief of specif i c performance should not be denied in the facts of the given case. Therefore, the trial court exercised its discretion correctly and the Appellate Court also conf i rmed the same for the said reasons.

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21. Therefore, the Courts below did not went wrong in granting decree of specif i c performance of contract on f i nding readiness and willingness and also proof of Ext.A1. Regarding the 3 rd question of law, it cannot be said that the frst Appellate Court went wrong in modifying the decree in i

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R.S.A. No. 100 of 2023

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any manner, since the Order 41 Rule 33 of the Code of Civil Procedure, 1908 gives ample power to the Appellate Court to modify the decree to ef f ectuate execution to have a quietus to the litigation.

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22. In view of the matter, the trial court is fully justif i ed in granting the discretionary relief in a case of this nature. The Appellate Court also conf i rmed the said f i nding rightly.

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In the result, this regular second appeal fails and is dismissed accordingly. Consequently, the decree and judgment under challenge stand conf i rmed.

Sd/-

A. BADHARUDEEN

JUDGE

R.S.A. No. 100 of 2023

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APPENDIX OF RSA 100/2023

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PETITIONER’S ANNEXURES :

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Annexure 1A TRUE COPY OF THE PLAINT IN O.S. NO.
190 OF 2010 IN THE COURT OF THE
SUBORDINATE JUDGE, PATHANAMTHITTA
Annexure 2A TRUE COPY OF THE ALLEGED SALE
AGREEMENT DATED 03.12.2009
Annexure 3A TRUE COPY OF THE PARTITION DEED NO.
447/1987 DATED 05.11.1987 OF THE SUB
REGISTRAR OFFICE, KONNI

Sushama v. M.v.Pavithran

Case brief

What is this about?

What did the court decide?

Sushama v. M.v.Pavithran

Case brief

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What did the court decide?

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