Kamal Kumar vs Premlata Joshi

Kamal Kumar ….Appellant(s)

VERSUS

Premlata Joshi & Ors. .…Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1. This appeal is directed against the final judgment

and order dated 08.01.2008 passed by the High Court

of Madhya Pradesh at Jabalpur in F.A. No.808 of 2000

whereby the Division Bench of the High Court

dismissed the first appeal filed by the appellant herein

and affirmed the judgment and decree dated

31.08.2000 passed by the Additional District Judge,

Signature Not Verified Harda in Civil Suit No.19­A/97.

Digitally signed by ANITA MALHOTRA Date: 2019.01.07 17:40:12 IST Reason: 1

2. Few facts need mention infra for the disposal of

this appeal.

3. The appellant is the plaintiff whereas the

respondents are the defendants in the civil suit out of

which this appeal arises.

4. The appellant filed the civil suit against the

respondents claiming specific performance of the

contract in relation to the suit land. The respondents

contested the suit.

5. By judgment/decree dated 31.8.2000, the Trial

Court dismissed the suit. The plaintiff felt aggrieved

and filed first appeal before the High Court of M.P. at

Jabalpur. By impugned judgment, the High Court

dismissed the appeal and affirmed the judgment and

decree of the Trial Court, which has given rise to filing

of this appeal by way of special leave by the

appellant(plaintiff) before this Court.

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6. Heard Mr. Navin Prakash, learned counsel for the

appellant and Mr. Sumit Kumar Sharma, learned

counsel for the respondents.

7. Having heard the learned counsel for the parties

and on perusal of the record of the case, we find no

merit in this appeal.

8. In our considered opinion, the concurrent

findings of facts recorded by the two Courts below on

all the material issues are binding on this Court. It is

much more so when we are unable to notice any kind

of perversity or illegality in the findings.

9. In other words, the findings apart from being

concurrent are such that they are capable of being

recorded on appreciation of evidence adduced by the

parties. These findings are neither against the

pleadings nor the evidence and nor any principle of

law. These findings are also not shown to be perverse

to the extent that no judicial person can ever record

such findings.

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10. It is a settled principle of law that the grant of

relief of specific performance is a discretionary and

equitable relief. The material questions, which are

required to be gone into for grant of the relief of

specific performance, are First, whether there exists a

valid and concluded contract between the parties for

sale/purchase of the suit property; Second, whether

the plaintiff has been ready and willing to perform his

part of contract and whether he is still ready and

willing to perform his part as mentioned in the

contract; Third, whether the plaintiff has, in fact,

performed his part of the contract and, if so, how and

to what extent and in what manner he has performed

and whether such performance was in conformity with

the terms of the contract; Fourth, whether it will be

equitable to grant the relief of specific performance to

the plaintiff against the defendant in relation to suit

property or it will cause any kind of hardship to the

defendant and, if so, how and in what manner and

4 the extent if such relief is eventually granted to the

plaintiff; and lastly, whether the plaintiff is entitled for

grant of any other alternative relief, namely, refund of

earnest money etc. and, if so, on what grounds.

11. In our opinion, the aforementioned questions are

part of the statutory requirements (See Sections 16 (c),

20, 21, 22, 23 of the Specific Relief Act, 1963 and the

forms 47/48 of Appendix A to C of the Code of Civil

Procedure). These requirements have to be properly

pleaded by the parties in their respective pleadings

and proved with the aid of evidence in accordance with

law. It is only then the Court is entitled to exercise its

discretion and accordingly grant or refuse the relief of

specific performance depending upon the case made

out by the parties on facts.

12. In the case at hand, we find that the two Courts

below have gone into these questions in the light of

pleadings and evidence and recorded a categorical

finding against the plaintiff holding that the plaintiff

5 was neither ready and nor willing to perform his part

of the contract and, therefore, he was not entitled to

claim the relief of specific performance of the contract

against the defendants in relation to the suit land. It

was also held that the plaintiff was not entitled to

claim any relief of refund of earnest money because it

was liable to be adjusted as agreed between them.

13. In other words, both the Courts below held that

the plaintiff has failed to prove his readiness and

willingness to perform his part of the contract. The

issue of readiness and willingness, in our view, is the

most important issue for considering the grant of

specific performance of the contract and the same

having been held by the two Courts below on

appreciation of evidence against the plaintiff, it is

binding on this Court. It being essentially a question

of fact, this Court is not inclined to again appreciate

the entire evidence while hearing the appeal under

Article 136 of the Constitution. It is more so when we

6 find that the appellant was also not able to point out

any material perversity or/and illegality in the finding

so as to call for any interference therein by this Court.

14. In view of the foregoing discussion, we find no

merit in this appeal. The appeal thus fails and is

accordingly dismissed.

…...…...................................J. [ABHAY MANOHAR SAPRE]

...…...……..............................J. [INDU MALHOTRA] New Delhi;

January 07, 2019

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