IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE H.P.SANDESH RFA.No.2293/2006 BETWEEN:
SRI. VENKATSWAMY REDDY AGED ABOUT 55 YEARS SON OF KAKA REDDY RESIDING AT KAMBALIPURA ATHIBELE HOBLI ANEKAL TALUK. ... APPELLANT (BY SRI. S. SREEVATSA, SR. COUNSEL FOR SRI. DHANANJAY JOSHI, ADV. FOR M/S. SREEVATSA ASSOCIATES) AND:
1. SRI. MUNIYAPPA @ MUNIREDDY SINCE DECEASED BY LRS.
1A. SMT. NAGAMMA WIFE OF LATE MUNIYAPPA @ MUNIREDDY AGED ABOUT 80 YEARS NO.9, 8TH CROSS FRIENDS COLONY S.T. BED LAYOUT BENGALURU-47.
1B. SMT. SAVITHRAMMA AGED ABOUT 55 YEARS DAUGHTER OF LATE MUNIYAPPA @ MUNIREDDY WIFE OF SIDDHARTHA REDDY NO.50/51, 16TH CROSS LAKKASANDRA BENGALURU-560 030.
2. SRI. G. NARAYANA REDDY AGED ABOUT 58 YEARS SON OF MUNIYAPPA @ MUNIREDDY NO.1719, 31ST CROSS 13TH MAIN ROAD, CAUVERY NAGAR BANASHANKARI II STAGE BENGALURU-70.
3. SRI. PRAKASH REDDY AGED ABOUT 50 YEARS SON OF MUNIYAPPA @ MUNIREDDY DEPUTY DIRECTOR FOR ANIMAL HUSBANDRY BENGALURU MAHANAGARA PALIKE BENGALURU.
4. SMT. N. PAVITHRA AGED ABOUT 33 YEARS DAUGHTER OF G. NARAYANA REDDY W/O VINUTHAN RESIDING AT NO.213, II CROSS 8TH MAIN, BYRASANDRA JAYANAGAR EAST BENGALURU-11.
5. SRI. N. RAGHAVENDRA AGED ABOUT 30 YEARS SON OF G. NARAYANA REDDY RESIDING AT NO.66, 1ST MAIN 16TH CROSS, GOPALAPPA LAYOUT LAKKASANDRA BENGALURU-30.
6. SMT. NARAYANAMMA AGED ABOUT 55 YEARS WIFE OF LATE PAPA REDDY DAUGHTER OF MUNIYAPPA @ MUNIREDDY RESIDING AT NO.66, 1ST MAIN 16TH CROSS, GOPALAPPA LAYOUT LAKKASANDRA BENGALURU-30. ... RESPONDENTS (SRI. D.S. RAMACHANDRA REDDY, ADV. FOR R1(A AND B) & R3 SRI. D.C.DEEPAK AND SMT. P.V. MANJULA, ADV. FOR R2 SRI. B.K. CHANDRASHEKAR, ADV. FOR M/S. A.C.C. ASSOCIATES FOR R4 TO R6) THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 19.10.2006 PASSED IN O.S.NO.1692/2006 (OLD NO.812/1996) ON THE FILE OF THE CIVIL JUDGE (SR. DN.) AND JMFC, ANEKAL DISMISSING THE SUIT FOR SPECIFIC PERFORMANCE.
THIS RFA COMING ON FOR FURTHER ARGUMENTS AND HAVING BEEN RESERVED FOR JUDGMENT, THIS DAY THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed by the plaintiff, who sought for an order of specific performance as against the respondents before the Court below in O.S. No.1692/2006, which has been dismissed vide judgment and decree dated 19.10.2006 on the file of Civil Judge (Sr. Dvn.) and JMFC, Anekal in O.S.No.1692/2006 (Old O.S.No.812/1996).
2. The parties are referred in the original rankings for the convenience of the Court.
3. The brief facts of the case.
It is the case of the plaintiff that defendant Nos.1 to 3 have agreed to sell the suit schedule properties vide sale agreement dated 26.12.1990 for sale consideration of Rs.1,32,000/-. The plaintiff paid a sum of Rs.50,000/- as advance on the date of agreement of sale to the defendant Nos.1 to 3 and it was agreed to pay balance amount of Rs.82,000/- at the time of registration. It is contended that defendant Nos.1 to 3 agreed to furnish the documents for sale. They did not furnish the documents and also did not come forward to execute the sale deed. However, an amount of Rs.10,000/- was paid to the defendants on 06.01.1991 and made an endorsement to that effect on the sale agreement. It is also the case of the plaintiff that the plaintiff has been put in possession of the suit schedule property. In spite of demands made to defendant Nos.1 to 3 to furnish the documents, failed to furnish the documents. Hence, plaintiff got issued a notice on 04.05.1996 calling upon them to deliver the documents and execute the sale deed and the same was served. In response to the notice, they have issued untenable reply. Hence, the plaintiff approached the Court seeking the relief of specific performance based on the sale agreement.
4. Defendant No.4 is the daughter of defendant No.1 and defendant Nos.5 and 6 are the son and daughter of defendant No.2, who got impleaded subsequently.
5. In pursuance of the suit summons, defendant Nos.1 to 3 have appeared through their counsel and defendant No.1 filed his written statement. Defendant Nos.2 and 3 have adopted the same. In the written statement, admitted the execution of the sale agreement and also admitted the issuance of notice. They have given reply to the notice. It is contended that at the time of execution of the sale agreement, the recital regarding delivery of possession was not mentioned in the document. But, the said fact has been inserted subsequently by using different ink pen and thereby, document has been materially altered and the same amounts to tamper of the document. It is contended that defendant Nos.1 to 3 are in possession over the suit schedule property. They have also sold eucalyptus trees to buyers and they obtained the permission from the Revenue Authority.
6. During the pendency of suit, defendant Nos.4 to 6 got themselves impleaded as defendant Nos.4 to 6. Defendant No.6 filed the written statement and defendant Nos.4 and 5 have adopted the same. They have denied the very execution of the sale agreement. But, contended that suit schedule property is the joint family property of the defendants and there was no partition. After the death of late Nanjappa, defendant No.1 took over the management of the joint family properties including the suit schedule properties. Defendant No.2 neglecting to look after the betterment and welfare of defendant Nos.4 and 5 after the demise of wife of defendant No.2. As a result, defendant Nos.4 and 5 are presently residing with defendant No.6 since 1999. Defendant No.6 performed the marriage of defendant No.4. Defendant Nos.4 to 6 have got legitimate right over the joint family properties. They demanded to effect partition of their joint family properties. Defendant Nos.1 to 3 refused to effect partition. Hence, they have filed the suit in O.S.No.1088/2002 for partition and separate possession of their shares. Hence, prayed the Court to dismiss the suit.
7. Based on the pleadings of the parties, the Court below framed the following issues and additional issues.
1. Whether the plaintiff proves that the defendants have delivered possession of suit properties and that he has been in possession and enjoyment of the same?
2. Whether the plaintiff proves that he was always ready and willing to perform his part of contract and it is the defendant who failed to produce the title deeds and evaded execution of regular sale deed?
3. Whether the defendants prove that the plaintiff has failed to comply with the terms of the agreement and hereby lost the right to enforce the agreement?
4. Whether the suit is barred by time?
5. Whether the plaintiff is entitled for the relief of specific performance of the contract dated 26.12.1990?
6. What decree or order?
Additional Issues 1. Whether defendant Nos.4 to 6 prove that suit properties are joint family properties and hence, defendant Nos.1 to 3 have no absolute right to execute the agreement of sale?
2. Whether plaintiff proves that defendant Nos.1 to 3 have executed the agreement of sale on 26.12.1990 agreeing to sell the suit properties for Rs.1,32,000/- and in all received Rs.60,000/- as earnest money?
3. Whether the defendant Nos.4 to 6 prove that the alleged agreement of sale is not for legal necessity and family benefits?
8. The plaintiff, in support of his case, he examined himself as P.W.1 and also examined three witnesses as P.Ws.2 to 4 and got marked Exs.P.1 to 11. The defendant Nos.2 and 5 have examined as D.W.1 and 2 and got marked Exs.D.1 to 12.
9. The Court below, after hearing the arguments of both sides, in the judgment answered the Issue No.2 as affirmative stating that there was a sale transaction between defendant Nos.1 to 3 and plaintiff and plaintiff was always ready to perform his part of contract. The Court below in the judgment answered the Issue No.1 as negative and comes to a conclusion that no possession was delivered. The Court below in the judgment answered the Issue No.3 as negative with regard to the contention of defendant that the plaintiff has failed to comply the terms and conditions of the agreement. The Court below in the judgment answered Issue No.4 as affirmative and comes to a conclusion that the suit is barred by time. The Court below in the judgment answered Issue No.5 as negative stating that the plaintiffs are not entitled for the relief of specific performance. The Court below in the judgment answered additional issue Nos.1 and 3 as negative regarding the claim of defendant Nos.4 to 6 that the defendant Nos.4 to 6 not proved that the suit schedule property is joint family property and no absolute right to defendant Nos.1 to 3 to execute the Sale Agreement and the sale is not for legal necessity and answered additional Issue No.2 as affirmative stating that the sale agreement was executed and received sale consideration of Rs.60,000/- as earnest money.
10. Being aggrieved by the judgment of dismissal of the suit, the present appeal is filed. In the appeal memorandum, it is contended that the Court below has committed an error in dismissing the suit on the ground of limitation. The Court below comes to a conclusion that sale agreement was executed and sale consideration was received to the tune of Rs.60,000/-. When the Court below answered the issues regarding the very execution of the sale agreement and the plaintiff was ready and willing to perform his part of contract, the trial Judge ought not to have dismissed the suit on the ground that the plaintiff is not entitled for the relief of specific performance. The very approach of the trial Court regarding limitation and dismissing the suit for specific performance is opposed to law. Hence, it requires interference by this Court and reverse the judgment.
11. Learned counsel appearing for appellant, in his argument, he contended that the Court below failed to consider the Article 54 of the Limitation Act. Though the time is stipulated in the agreement and there is a clause in the agreement for extension of time in case of default in furnishing the document. Hence, the first part of Article 54 is not applicable to the case on hand.
12. In support of his contention, he relied upon the judgment reported in the case of Ahmadsahab Abdul Maulla (2) (dead) by proposed Lrs., vs. Bibijan and others reported in (2009) 5 Supreme Court Cases 462 regarding whether the date was fixed or not. The plaintiff had issued notice for specific performance, which is refused and the date has to be reckoned from the date of refusal. Hence, trial Judge ought not to have dismissed the suit. The learned counsel also would contend that sale consideration was fixed Rs.1,32,000/-. On the date of sale agreement, Rs.50,000/- was paid and additional amount of Rs.10,000/- was paid on 06.01.1991 and the same has not been disputed and possession also delivered. There is a recital in the sale agreement that defendants have to produce the documents. But, they did not produce the documents. Hence, the trial judge ought to have granted the relief of decree for specific performance.
13. The learned counsel in his argument would submit that now, an amendment is brought into Section 20 of the Specific Relief Act and referring the judgment reported in the case of Ramkanali Colliery of BCCL vs. Workmen by Secretary, Rashtriya Colliery Mazdoor Sangh and another reported in (2001)4 Supreme Court Cases 236, the learned counsel would contend that if there is both repeal and introduction of another provision in place thereof by a single exercise, the expression "substituted" is used. Such deletion has the effect of the repeal of the existing provision and also provides for introduction of a new provision. The Apex Court in the judgment held that in our view there is thus no real distinction between repeal and amendment or substitution in such cases. If that aspect is borne in mind, we have to apply the usual principles of finding out the rights of the parties flowing from an amendment of a provision. If there is a vested right and that right is to be taken away, necessarily the law will have to be retrospective in effect and if such a law retrospectively takes away such a right, it can no longer be contended that the right should be enforced. By relying upon this judgment, the learned counsel would contend that in view of amendment to the Specific Relief Act, it is clear that it has got retrospective effect and in view of the amendment, discretion has to be exercised and not inconsonance with the Section 20 of the old Act.
14. The learned counsel also relied upon the judgment of the Apex Court passed in the case of R Lakshmikantham vs. Devaraji in the case of Civil Appeal No.2420/2018 brought to my notice, which was decided on 10.07.2019. As held in the judgment, it is well settled that the rule of equity that exists in England, does not apply, and so long as a Suit for specific performance is filed within the period of limitation, delay cannot be put against the plaintiff.
15. The learned counsel also relied upon the judgment in the case of State (Delhi Administration) vs. Pali Ram reported in (1979) 2 Supreme Court Cases 158 brought to my notice at para No.30 and contended that although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet-anchor of the prosecution case against a person accused of an offence solely on comparison made by himself. It is, therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert. By relying upon this judgment, the learned counsel would contend that the Court below has committed an error in coming to the conclusion of the material alteration.
16. The learned counsel also relied upon the judgment in the case of Om Prakash vs. Amar Singh and others reported in (1987) 1 Supreme Court Cases 458 regarding material alteration is concerned and brought to my notice in paragraph No.5 of the judgment that the Act does not define either the word 'materially' or the word 'altered'. The expression "alteration" with reference to building means 'substantial' change, varying, change the form or the nature of the building without destroying its identity". Having referred this Judgment would contend that the Court has committed an error in forming its opinion that there was a material alteration.
17. The learned counsel also produced the copy of the report of the Expert Committee on Specific Relief Act, 1963 of the year 2016 and brought to my notice regarding the discretionary remedy that Specific Performance of contract, due to its equitable roots, has been considered a discretionary remedy in both England and India. However, the discretionary nature of the remedy has created considerable uncertainty over when specific performance will be granted.
18. The learned counsel also relied upon the judgment in the case of Babulal Agrawal vs. Jyoti Shrivastava and others reported in 2000(1) M.P.L.J contended that written statement has not been filed by all the defendants and some of them have filed memo adopting the written statement and the written statement cannot be adopted. Referring under Order 8 Rule 2 to 5 and under Order 6 Rule 1. In this judgment held that adopting written statement of others without verification is no written statement.
19. The learned counsel appearing for respondent No.3 who is the defendant No.3 in the lower Court would contend that no dispute with regard to the execution of the sale agreement in terms of Ex.P.1. In terms of Ex.P.1, three months time is mentioned and notice was issued in the year 1996, though it was a sale agreement dated 26.12.1990. It is also contended that the material alteration is visible. On perusal of Ex.P.1, the Court below has rightly come to a conclusion that there was a material alteration. The judgments quoted by the appellant are not applicable to the case on hand. Having considered the facts and circumstances of the case, it is contended that the possession was delivered and sale agreement was executed only on hundred rupees stamp paper. If possession is delivered, the stamp duty should be payable as conveyance. Hence, it is clear that there was an alteration and the Court below has considered the same. The learned counsel also brought to my notice to Section 18 of the Specific Relief Act to contend that if any alteration has been made, the plaintiff is not entitled for the relief of specific performance.
20. The learned counsel also relied upon the judgment in the case of K.Nanjappa (dead) by Lrs., vs. R.A.Hameed alias Ameersab (dead) by Lrs., and another reported in 2015 AIR SCW 5172 by relying upon this judgment referring para No.21 of the judgment, the learned counsel would contend that Section 20 prescribes judicial discretion to grant decree for specific performance. The Court is not bound to grant specific performance merely because it is lawful to do so. The Court should meticulously consider all facts and circumstances of the case and to see that it is not used as an instrument of oppression to have an unfair advantage not only to the plaintiff but also to the defendant. The learned counsel also brought to my notice in paragraph No.26 with regard to conduct of the parties and would contend that it depends upon the conduct of the parties to grant the relief.
21. The learned counsel also relied upon the judgment in the case of Nanjappan vs. Ramasamy and another reported in 2015 AIR SCW 1659 and referring this judgment, the learned counsel would contend that granting of specific performance is discretionary depends on facts and circumstances of the each case. Escalation of value of property after agreement due to passage of time. Grant of relief of specific performance to respondent, would cause great hardship to appellant – Supreme Court declined to exercise discretion to grant such relief.
22. The learned counsel also relied upon the judgment in the case of Mrs.Saradamani Kandappan vs. Mrs.S.Rajalakshmi and others reported in AIR 2011 SUPREME COURT 3234 and brought to my notice at paragraph Nos.24 and 25 regarding the limitation is concerned. In this judgment, the Apex Court held that time is not of the essence of contract relating to immovable properties took shape in an era when market value of immovable properties were stable and did not undergo any marked change even over a few years. The steep increase in prices is a circumstance which makes it inequitable to grant the relief of specific performance where the purchaser does not take steps to complete the sale within the agreed period, and the vendor has not been responsible for any delay or non-performance.
23. The learned counsel also relied upon the judgment in the case of H.P.Pyarejan v. Dasappa (dead) by Lrs., and others reported in AIR 2006 SUPREME COURT 1144 and brought to my notice in paragraph No.14 of the judgment regarding Section 16(c) and would contend that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief.
24. The learned counsel also relied upon the judgment in the case of Man Kaur (Dead) by Lrs., vs. Hartar Singh Sangha reported in (2010) 10 Supreme Court Cases 512 and brought to my notice in paragraph No.23 of the judgment with regard to Section 16(c) reiterated the principles laid down in the judgment referred in the case of H.P.Pyarejan v. Dasappa (dead) by Lrs., and others reported in AIR 2006 SUPREME COURT 1144.
25. The learned counsel also relied upon the judgment in the case of M/s.Citadel Fine Pharmaceuticals vs. M/s.Ramaniyam Real Estates P. Ltd. and another reported in AIR 2011 SUPREME COURT 3351 and brought to my notice in paragraph No.45 of the judgment regarding exercising of discretionary relief the Court was dealing with the urban properties and held that mere rise in price is no ground for denying the specific performance.
26. The learned counsel also relied upon the judgment in the case of Vimaleshwar Nagappa Shet vs. Noor Ahmed Sheriff and others reported in AIR 2011 SUPREME COURT 2057 and brought to my notice in paragraph No.9 of the judgment. In this judgment held that it is well settled that value of the property escalates in urban areas very fast and it would not be equitable to grant specific performance after a lapse of long period of time.
27. The learned counsel appearing for respondent Nos.4 to 6, in his argument, he vehemently contended that there was a decree in favour of them and it was a joint family property. In the said suit, the plaintiff made an attempt to come on record by making an impleading application and the same was rejected. Apart from that, the document which relied upon by the plaintiff i.e., Ex.P.1, there was an interpolation.
28. In support of his contention, he relied upon the judgment in the case of Sri.V.P.Venkatesh vs. Smt. G.Padmavathi reported in ILR 2015 KAR 2695. In this judgment, this Court held that every suit for specific performance need not be decreed merely because it is filed within a period of limitation by ignoring the time-limits stipulated in the agreement. The learned counsel relying upon the said judgment would contend that there is a delay in filing the suit and hence, they are not entitled for the relief.
29. The learned counsel appearing for respondent No.2, in his argument, has vehemently contended that this Court has to see the prayer made in the plaint. In one breath, the plaintiff claims that he is in possession and in another breath, seeks the relief of possession and also injunction. Hence, the plaintiff is not entitled for equitable relief.
30. In support of his contention, he relied upon the judgment in the case of Lourdu Mari David and others vs. Louis Chinnaya Arogiaswamy and others reported in (1996) 5 Supreme Court Cases 589. In this judgment, the Apex Court held that the plaintiff seeking equitable relief of specific performance should come before Court with clean hands. In the case on hand, the plaintiff did not approach the Court with clean hands. In one breath, he claims that he was put in possession and alternatively, sought for the relief of possession. Hence, this Court cannot entertain the appeal.
31. In reply to the arguments of respondents, the learned counsel for plaintiff would contend that the defendants have not taken the defence in the written statement that there was a material alteration. There was no any evidence with regard to the material alterations. Mere taking the defence is not enough and in the absence of the pleadings with regard to the material alterations, the Court below ought not to have considered the same and committed an error. It is appropriate to allow the appeal and set-aside the judgment and decree of the trial Court.
32. Having heard the arguments of the learned counsel for the appellant and also the learned counsel for the respondents, the points that arise for consideration are:-
i) Whether the Court below has committed an error in dismissing the suit on the ground of limitation?
ii) Whether the Court below has committed an error in dismissing the suit not granting the relief of specific performance after coming to the conclusion that there was a sale agreement?
33. Point No.1 :- The question before this Court is whether the Article 54 of the Limitation Act applies and whether first part applies or second part applies has to be determined. Hence, I would like to extract Article 54 of the Limitation Act, which reads as follows:
“Description of suit Period of limitation Time from which period beings to run 54. For Specific performance of a contract.
Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.
34. Having considered the Article 54, it is clear that if the date is fixed for specific performance, the period of limitation is three years and if no such date is fixed, the period starts from the date of refusal.
35. Now, this Court has to consider, whether there is any time stipulation in the agreement, which is marked as Ex.P.1. On perusal of Ex.P.1, it is clear that the time is mentioned for a period of three months. On perusal of Ex.P.1, though time is mentioned for a period of three months, it is specifically mentioned that if documents are not furnished, the time would be extended till furnishing of the documents. It is further mentioned that they are going to provide the documents within stipulated time and if any default, unilaterally time would be extended till the production of documents and the said stipulation is marked as Ex.P.1(a).
36. Having considered the recitals, which is marked as Ex.P.1(a) and also the time stipulation, it is clear that time is the essence of the contract i.e., three months from the date of agreement to execute the sale deed. In the case on hand, it has to be noted that though time is mentioned for a period of three months, the plaintiff did not approach the defendants within a period of three months in terms of Ex.P.1. Though it is pleaded in the plaint that the defendants did not furnish the documents, there is nothing on record that the plaintiff has approached the defendants to furnish the documents within the stipulated time. The notice was issued in the year 1996. Almost after lapse of six years, plaintiff issued a notice calling upon the defendants to furnish the documents and till then, the plaintiff has kept quite. The said legal notice was served on the defendants and they have given reply to the said notice. No dispute with regard to the service of notice and also with regard to giving of reply. It is the contention of the defendants that the plaintiff has never approached for furnishing of documents and blamed the plaintiff as he slept over. It is important to note that it is specifically mentioned three months for registration of the document and balance amount payable at the time of registration. The plaintiff, after having obtained sale agreement, kept quite for a period of six years till issuance of notice. When the time is the essence of the contract, plaintiff ought to have approached the defendants. The same has not been done. Though the learned counsel appearing for plaintiff has relied upon the judgment of the Apex Court with regard to the limitation in the case of Ahmadsahab Abdul Maulla (2) (dead) by proposed Lrs., vs. Bibijan and others reported in (2009) 5 Supreme Court Cases 462 and tried to interpret the word with regard to the date fixed for performance. The said judgment will not come to the aid of the plaintiff for the reason that Article 54 is very clear that time is the essence of the contract. The period of limitation is three months and if no time is fixed, then the date of refusal of the performance. In the case on hand, the time is the essence of the contract i.e., period of three months and within three months, the plaintiff did not demand the defendants to furnish the documents. Only after six years, he demanded by issuing the legal notice. Hence, the first part of the Article 54 is applicable and not the second part of the Article 54. The Court below also considered the said fact into consideration. The judgments quoted by the defendants, which are referred above aptly applicable to the case on hand that the time is the essence of the contract. No doubt, in Ex.P.1, it is mentioned that if document is not furnished, unilaterally the period is extendable. In the case on hand, the plaintiff did not demand and call upon the defendants to furnish the documents within the time stipulated and no material is placed. Hence, Ex.P.1(a) also will not come into the aid of the plaintiffs. It is pertinent to note that in the cross- examination, it is specifically admitted that the documents required for registration is also only a public document i.e., RTC extracts, khata extracts and mutation. These documents could be obtained by anybody. In the case on hand, the plaintiff slept over for a period of six years. Only after six years, he only issued legal notice. Hence, I am of the opinion that the trial Court has not committed any error in dismissing the suit while answering the suit is barred by limitation and the same cannot be interfered and the same is also considered by the trial Court meticulously. Hence, answered point No.1 as Negative.
37. Point No.2:- The contention of the plaintiff before this Court that the Court below has committed an error in dismissing the suit, even though comes to a conclusion that there was a sale agreement. It has to be noted that there is no dispute with regard to the execution of the sale agreement and defendants have also admitted the very execution of the sale agreement – Ex.P.1 and also did not dispute the receipt of Rs.50,000/- as advance. Though disputed the additional payment of Rs.10,000/-, D.W.1 in the cross-examination categorically admitted that they have also received an amount of Rs.10,000/- and for having received the same, an endorsement was made on the document – Ex.P.1(c). Hence, it is clear that an amount of Rs.60,000/- was received by the defendants from the plaintiff.
38. Now, the question before this Court is with regard to the delivery of possession and the Court below comes to a conclusion that possession has not been delivered. On perusal of document – Ex.P.1, there is a recital that possession has been delivered in the bottom of the agreement, which is marked as Ex.P.1(b). It has to be noted that the said Ex.P.1(b) is in different ink pen and the same has been considered by the trial Court. The very contention of the appellant that there is no any pleading before the Court below that there was a material alteration in the Ex.P.1. Hence, the trial Judge ought not to have considered the grounds of material alterations. The learned counsel also relied upon the judgments in support of his contention regarding material alteration in the case of Om Prakash vs. Amar Singh and others reported in (1987) 1 Supreme Court Cases 458 and in the case of State (Delhi Administration) vs. Pali Ram reported in (1979) 2 Supreme Court Cases 158.
39. Having considered the principles laid down in the judgment referred supra and also considering the document – Ex.P.1 and on perusal of document – Ex.P.1 on bare eyes, it is clear that the document – Ex.P.1 is altered inserting the word with regard to delivery of possession and the same is in different ink. It is further important to note that Ex.P.1 is not registered sale agreement and if the possession has been delivered, it is rightly pointed out by the learned counsel appearing for respondent No.3 that it attracts the stamp duty as conveyance. It is pertinent to note that the plaintiff in the plaint also claims that he is in possession of the suit schedule property and also it is specifically pleaded that if the Court comes to a conclusion that the plaintiff has not been in possession and prayed this Court to grant possession. The learned counsel for respondents also would contend that the plaintiff is not sure about the delivery of possession and alternative relief has been sought for possession. Hence, it is clear that Ex.P.1(b) is nothing but an interpolation regarding delivery of possession.
40. Having considered all these materials, the trial Court has come to a conclusion that possession has not been delivered. This Court also does not find any irregularity committed by the Court below in appreciating the evidence available on record. The Court below meticulously considered the material on record regarding insertion of possession of delivery in the exhibit P.1 and the same is in different ink pen. The contention that the Court below cannot act as an expert cannot be accepted. No Court can act as an expert but Court can compare the same under Section 73 of Evidence Act. Hence, it is clear that no possession was delivered in favour of plaintiff as on the date of executing the sale agreement - Ex.P.1 and if it was really delivered, it ought to have been by way of registered sale agreement.
41. The other contention of the learned counsel for appellant/plaintiff before the Court that in spite of the Court below comes to a conclusion that there was an agreement of sale did not grant the relief of specific performance. It has to be noted that the agreement was entered in the year 1990 and plaintiff has kept quite for a period of six years. If really he intends to obtain the sale deed within a period of three months as stipulated in the agreement, he would have called upon the defendants to furnish the documents and same has not been done. Apart from that, the plaintiff has not approached the Court with clean hands and there are material alterations in the document - Ex.P.1, while exercising the discretion Court has to take note of the conduct of parties. In the case on hand, the very conduct of the plaintiff has been blemished throughout disentitling him to grant the relief of specific performance. In order to get the relief of specific performance, the plaintiff has to approach the Court with clean hands. The learned counsel for respondents have also relied upon the several judgments with regard to escalation of prices and also conduct of the plaintiff for granting of specific relief under Section 20 of the Specific Relief Act. No doubt the escalation of price cannot be a ground for rejection and the same also one of the factor since the plaintiff slept over for a longer period. The same is also an additional factor.
42. The learned counsel appearing for plaintiff would contend that in the recent amendment, Section 20 has been substituted. Hence, he relied upon the judgment of the Apex Court with regard to the substitution has got the effect of retrospection. In the case on hand, I have already pointed out that there are material alterations also. The plaintiff has kept quite for a period of six years and he did not come forward either to call upon the defendants to furnish the documents and only says that defendants did not furnish the documents. It is emerged in the evidence that the documents required for registration are only RTC extracts, katha extracts and mutation extracts. Those documents even the plaintiff could have obtained the same from the public authority if really he intends to obtain the sale deed and the same has not been done.
43. Having considered all these aspects into consideration, the very contention of the learned counsel for plaintiff that in view of Amendment to Section 20 of Specific Relief Act, it has got retrospective effect of substitution of Section 20 will not come to the aid of the plaintiff. The Court has to look into the conduct of the plaintiff also while granting the relief of specific performance. The Court below considered the material available on record both oral and documentary evidence while rejecting the relief of specific performance in favour of the plaintiff. I do not find any reason to form other opinion and reverse the finding of the judgment. While reversing the finding of the judgment, there must be some material irregularity. If the evidence available on record has not been considered, which tilt the result of coming to a conclusion, then only the Court can reverse the finding of the trial Court. Hence, I do not find any such material on record to come to the other conclusion that the Court below has not considered the material on record and the same is not perverse. The trial Court has considered the material on record meticulously and rightly rejected the prayer for specific performance. Hence, the appeal is devoid of merits.
In view of the discussions made above, I pass the following;
ORDER The appeal is dismissed.
Sd/- JUDGE NBM