specific performance= it is the defendants who went back = it is also a settled and well established principle of law that the said relief cannot be refused in an arbitrary, illegal, unreasonable and inequitable manner. In the instant case, knowing fully well about the existence of Ex.A3 sale agreement in favour of plaintiff, the 3rd defendant purchased the property by way of Ex.A8 sale deed. As observed supra, the defendants proceeded with the transaction pertaining to Ex.A8 sale deed despite Ex.A5 and A7 notices. By any stretch of imagination, it cannot be said that the 3rd defendant is a bonafide purchaser for valuable consideration to have the protection under the provisions of Specific Relief Act. In the considered opinion of this Court, the rejection of primary relief of specific relief of agreement of sale in favour of plaintiff is not only illegal, but also highly unreasonable. If these types of transactions covered by Ex.A8 are allowed to sustain, people will loose faith in the transactions and the rule of law. In the definite opinion of this Court, plaintiff not only pleaded, but also proved his readiness and willingness to perform his part of the contract and it is the defendants who went back from Ex.A3 agreement of sale and executed unreasonably Ex.A8 sale deed in favour of 3rd defendant.

THE HONBLE SRI JUSTICE A.V.SESHA SAI

 

A.S.No.498 of 1997

 

06-12-2017

 

Challa Raju…Petitioner

 

Pyla Gireenu (died) per L.Rs.and 2 others. …Respondents

 

Counsel for Appellant: Sri S.Ashok Anand Kumar

 

Counsel for Respondent No.2: Sri G.Ramgopal

Counsel for Respondent No.3: Sri P.Sri Raghuram

 

<GIST:

 

>HEAD NOTE:

 

? Cases referred:

 

1. (2010) 4 SCC 753

2. (2012) 11 SCC 405

3. (2010) 10 SCC 512

4. (2010) 4 SCC 753

5. (2004) 7 SCC 277

6. (2004) 6 SCC 325

7. 2011 (1) ALD 296

8. 2011 (5) ALD 508

9. AIR 2005 SC 439

10. (1999) 3 SCC 573

11. AIR 2003 Bombay 369

12. 2010(6) ALD 119 (SC)

13. 2014(3) ALD 449

 

 

 

THE HONBLE SRI JUSTICE A.V.SESHA SAI

 

A.S.No.498 of 1997

 

 

JUDGMENT:

Plaintiff in O.S.No.155 of 1988 on the file of Court of III Additional

Subordinate Judge, Visakhapatnam, is the appellant in the present Appeal

Suit, preferred under Section 96 of Code of Civil Procedure against the

judgment and decree dated 30.1.1997 passed by the said Court.

 

2. The appellant herein instituted the said suit for the following reliefs:

(1) Permanent injunction restraining the defendants 1 and 2 from selling

the suit schedule I and II site with a thatched house to third

defendant or any other person.

(2) And as a consequential relief to set aside the sale dated 29.3.1988 in

respect of Schedule-II property which is given as a passage of the

width of 2 feet and length of 52 feet for road accessibility or in the

alternative to declare the sale in respect of Schedule-II property

which is included in the sale deed dated 29.3.1988 as null and void.

(3) For specific performance of the suit agreement dated 26.4.1987 by

directing the defendants 1 and 2 to register the suit schedule I and II

site in favour of the plaintiff after receiving the balance of sale

consideration after deducting the interest payable by the defendants

to the plaintiff at the rate of 24% per annum from 26.5.1987 as

directed by this Hon’ble Court and in case defendants 1 and 2 fails to

register the same in favour of the plaintiff, this Hon’ble Court to

register the sale deed in favour of the plaintiff on behalf of the

defendants 1 and 2 and for delivery of possession.

(4) And in case the specific performance cannot be granted this Hon’ble

Court direct the defendants 1 and 2 to order the return the advance

of Rs.15,000/- with interest at 24% per annum from 26.4.1987 and

also for a sum of Rs.10,000/- being the damages for breach of

contract.

(5) For costs of the suit; and

(6) For such other relief or reliefs which this Hon’ble Court may

deem fit and proper under the circumstances of the case.

3. The schedule of properties is as follows:

SCHEDULE-I

 

The suit schedule land consisting of 2 roomed old tatched house with vacant

space of 60 sq.yards situated in the backyard of Door No.34-11-12, Ward No.38,

S.No.295, Block No.13, Holly Cross Street, Gnanapuram, Visakhapatnam, marked as

A, B, C, D in plaint plan bounded by:

East : The house of Gullipilli Santhaiah

South : Allotted 3 lane with Municipal drainage

West : Asbestos sheet house of one Pyla Atchanna

North : Tiled house of the Defendants 1 and 2 with vacant

land

 

Total extent : 60 (sixty only) sq.yards

Total value : Rs.36,000/-

 

SCHEDULE-II

 

The 2 feet width and about 50 feet length common passage on the Eastern

side of the tiled house with D.No.34-11-12 S.No.295 Block No.13, Holy Cross Street,

Gnanapuram, Visakhapatnam, marked as D, E, F, G in the plaint plan is bounded as

follows:

East : The house of Gullipilli Santhaiah

South : Vacant land with tatched house.

West : Tiled house and terraced and asbestos sheet

rooms.

 

North : Municipal Road

 

Total extent :

 

 

4. Defendants 1 and 2 executed Ex.A3 Agreement of Sale dated

26.4.1987 in favour of the plaintiff, agreeing to sell the plaint property for a

total consideration of Rs.36,000/-. On the date of Ex.A3, plaintiff paid an

advance amount of rs.15,000/-. By way of Ex.A4 notice dated 11.1.1988, 1st

defendant asked the plaintiff to receive back the advance amount of

Rs.15,000/- with interest and to return the agreement executed by him on

the ground that necessary certificates for registration could not be secured.

In response to the same, plaintiff got issued Ex.A5 reply dated 26.1.1988,

calling upon to perform the contract within (10) days. Thereafter, plaintiff

also got issued Ex.A7 notice dated 29.3.1988 to the Joint Sub-Registrar,

Visakhapatnam, asking not to register any transaction in respect of the

subject property. First defendant executed Ex.A8 sale deed dated 29.3.1988

in favour of 3rd defendant. First defendant filed written statement and he

passed away pending suit and after his death, on 9.10.1996, 2nd defendant,

son of 1st defendant filed additional written statement. Third defendant also

filed written statement, resisting the suit. On the basis of the pleadings, the

learned Subordinate Judge, framed the following issues for trial:

(1) Whether the plaintiff has been always ready and willing to perform his

part of contract?

(2) Whether the plaintiff is entitled for specific performance of agreement

of sale?

(3) Whether the plaintiff is alternatively entitled for return of earnest

money with interest and damages of Rs.10,000/-?

(4) To what relief?

 

Additional Issues:

(1) Whether the plaintiff is entitled for permanent injunction as prayed

for?

(2) Whether the plaintiff is entitled for a consequential relief to set aside

the sale deed dated 29.3.1988 created by 1st and 2nd defendants in

favour of 3rd defendant as prayed for?

 

5. On behalf of plaintiff, P.Ws.1 and 2 were examined and Exs.A1 to A8

were marked and on behalf of defendants, D.Ws.1 and 2 were examined and

Exs.B1 and B2 were marked. The learned Subordinate Judge, passed the

impugned judgment and decree on 30.1.1997, decreeing the suit for the

alternative relief of refund of the advance amount with interest and also

awarded damages of Rs.10,000/-. This Appeal Suit assails the validity and

legal sustainability of the said judgment and decree.

6. Heard Sri S.Ashok Anand Kumar, learned counsel for the plaintiff/

appellant herein, Sri G.Ramgopal, learned counsel for Respondent No.2 and

Sri P.Sri Raghuram, learned Senior Counsel appearing for Respondent No.3.

 

7. The learned counsel for the appellant contends that the impugned

judgment rendered by the learned Subordinate Judge is erroneous, contrary

to law and not in consonance with the material available on record and that

the Court below failed to consider the oral and documentary evidence

available on record. It is the further submission of the learned counsel that

the learned Subordinate Judge grossly erred in not taking into consideration

the averments in the additional written statement filed by 2nd defendant and

that the judgment is contrary to Order 12 Rule 6 of CPC. It is further

contended that Ex.A3 did obligate only defendant, but not plaintiff to obtain

certificates from the Municipality. It is also contended that since the plaintiff

proved his readiness and willingness to perform his part of contract, the

primary relief of execution of sale deed in favour of plaintiff should have been

granted. In support of his case, the learned counsel takes the support of the

judgments of the Honble Supreme Court in KARAM KAPAHI AND OTHERS

v. LAL CHAND PUBLIC CHARITABLE TRUST AND ANOTHER , PAYAL

VISION LIMKITED v. RADHIKA CHOUDHARY , MAN KAUR (DEAD)

BY LRS v. HARTAR SINGH SANGHA , KARAM KAPAHI & ORS v. M/S

LAL CHAND PUBLIC CHARITABLE TRUST AND ANOTHER , INDER

SAIN BEDI (DEAD) BY LRS v. CHOPRA ELECTRICALS , VICE-

CHAIRMAN, KENDRIYA VIDYALAYA SANGATHAN AND ANOTHER v.

GIRIDHARILAL YADAV and the Judgments of this Court in P.V.V.A.V.

PRASAD v. SHAIAK MAHABOOB BASHA and TASTE HOTELS (P) LTD.,

ONGOLE, PRAKASAM DISTRICT v. MEDISETTY JAYASRI AND

ANOTHER .

 

8. The learned counsel appearing for 2nd defendant/2nd respondent

herein strenuously contends that the plaintiff is liable to be non-suited on the

ground that he failed to enter into witness box and that the GPA holder who

represented the plaintiff throughout cannot be a substitute to the plaintiff to

prove his case. It is the further submission of the learned counsel that the

averments in the additional written statement filed by 2nd defendant/2nd

respondent cannot be taken as admissions and the same being a conditional

offer which the plaintiff failed to avail. It is further contended that the learned

Subordinate Judge is perfectly justified in granting alternative relief having

regard to the facts and circumstances of the case and the exercise of

discretion by the learned Subordinate Judge is strictly in accordance with the

provisions of Sections 16 and 20 of the Specific Relief Act. It is the further

submission of the learned counsel that non-examination of 2nd defendant

would be insignificant in view of the reason that the plaintiff also did not

enter into witness box. It is further contended that since the trial Court

already exercised its discretion and as the relief of specific performance is an

equitable relief, no interference of this Court is warranted under Section 96 of

CPC. It is also the submission of the learned counsel that in terms of the

decree rendered by the Court below for refund of the amount, the 2nd

respondent/2nd defendant had deposited the amount in the Court below. In

support of his submissions/contentions, learned counsel places reliance on

judgments of the Honble Apex Court in JANKI VASHDEO BHOJWANI

AND ANOTHER v. INDUSIND BANK LTD. AND OTHERS ,

VIDHYADHAR v. MANIK RAO AND ANOTHER , WESTERN

COALFIELDS LTD. v. M/S SWATI INDUSTRIES , JEEVAN DIESELS

AND ELECTRICALS LTD. v. JASBIR SINGH CHADHA (HUF) AND

ANOTHER and the judgment of this Court in M.ALI BAIG AND OTHERS

v. KOTTALA SANJEEVA REDDY AND OTHERS .

9. It is contended by the learned counsel appearing for 3rd defendant/3rd

respondent herein that the Court below is perfectly justified in granting

alternative relief of refund of the amount as the plaintiff instituted the suit on

8.4.1988 i.e. after execution of Ex.A8 sale deed dated 29.3.1988, conveying

the property in favour of 3rd defendant. It is also the submission of the

learned counsel that without the knowledge of Ex.A3 Agreement of Sale in

favour of plaintiff, 3rd defendant purchased the property under the bonafide

impression that there were no encumbrances on the property. It is also the

submission of the learned counsel that since the plaintiff failed to prove the

continuous readiness and willingness to perform his part of the contract, he is

not entitled to the primary relief of execution of sale deed in his favour.

 

10. In the light of the above pleadings and submissions, the points that

emerge for consideration of this Court under Section 96 of CPC are as

follows:

(1) Whether the learned Subordinate Judge is justified in declining

to grant the primary relief of specific performance of contract of

sale by way of execution of sale deed in favour of plaintiff

having regard to the facts and circumstances of the case and

whether the same is in accordance with the provisions of

Sections 16 and 20 of Specific Relief Act ?

(2) Whether the plaintiff proved his readiness and willingness to

perform his part of the contract ?

(3) Whether the 3rd defendant is a bonafide purchaser for a

valuable consideration?

 

11. The execution of Ex.A3 Agreement of Sale dated 26.4.1987 by the

defendants 1 and 2 in favour of plaintiff, agreeing to sell the plaint schedule

property for a total consideration of Rs.36,000/- and the factum of payment

of advance amount of Rs.15,000/- on the date of agreement by the plaintiff

are not in dispute. According to Ex.A3 Agreement of Sale dated 26.4.1987,

it was agreed by the defendants that they would secure necessary documents

for registration and they also agreed for payment of interest @ 2/- and they

also agreed to handover the property to the plaintiff in the event of failure to

do so. The time stipulated for execution of the document as per Ex.A3 was

admittedly one month. On the ground that they could not secure the

necessary documents, defendants 1 and 2 got issued Ex.A4 notice dated

11.1.1998, asking the plaintiff to receive back the advance amount of

Rs.15,000/-. But the plaintiff by way of Ex.A5 reply demanded the

defendants to perform their part of contract as per the recitals of Ex.A3

Agreement of Sale.

 

12. According to the plaintiff, on coming to know that defendants 1 and 2

were contemplating to sell the property in favour of third parties, he got

issued Ex.A7 notice dated 29.3.1988. A perusal of the said Ex.A7 notice, in

clear and vivid terms, discloses that the plaintiff asked the Joint Registrar not

to register any transactions in respect of the subject property. Despite the

said notice, Ex.A8 sale deed was executed on 29.3.1988 in favour of 3rd

defendant. It is also significant to note that the 2nd defendant filed additional

written statement after the death of his father (1st defendant) on 9.10.1996,

categorically admitting execution of sale agreement and also expressed no

objection to execute the sale deed in respect of the schedule properties.

Admittedly, after receipt of Ex.A4 notice dated 11.1.1988, plaintiff by way of

Ex.A5 reply, expressed his willingness and readiness to perform his part of

contract and asked the defendants 1 and 2 to get ready for execution within

(10) days.

 

13. It is also important to note in this context that in the additional written

statement, the 2nd defendant categorically stated that his father (1st

defendant) executed sale deed as desired by 3rd defendant as she agreed to

reap the consequences of such registration. In this context, the evidence of

P.W.2, who attested Ex.A3 Agreement of Sale gains significance. In his

evidence, P.W.2-Attestor of Ex.A3 categorically in clear terms stated that

(30) minutes after execution of Ex.A3, he along with 1st defendant went to

the suit site and informed the 3rd defendant about execution of Ex.A3

document and making a provision of 2 feet way. It is also clear from the

evidence of P.W.2 that he is related to Defendants 1 and 3. It is also clear

from the said evidence that he denied the suggestion that he never informed

the 3rd defendant about the execution of Ex.A3. It is very much evident from

the cross-examination of P.W.2 that nothing negative could be elicited by the

defendants to discredit his testimony.

 

14. It is also significant to note that the 3rd defendant never entered into

witness box to prove her case and to reject the case of the plaintiff that only

with knowledge of execution of Ex.A3 agreement of sale, she purchased the

property by way of Ex.A8 sale deed. It is also the submission of the learned

counsel that Ex.A8 sale deed was not released by the registering authorities

so far and the evidence of P.W.2 was not shattered. In the considered

opinion of this Court, the admissions in the additional written statement made

by 2nd defendant cannot be construed as a conditional offer to the plaintiff for

performance of the contract. Admittedly, the document executed by

defendants 1 and 2 in favour of 3rd defendant is under challenge in the suit.

Having regard to the categoric admission made by the 2nd respondent/2nd

defendant in the suit, the judgments cited by the learned counsel for 2nd

respondent would not render any assistance to the case of the Respondents.

In fact, the plea as to non-examination of plaintiff was never taken by the

Respondents before the Court below nor the same fell for consideration.

 

15. Coming to the judgements cited by the learned Advocates.

 

(1) In KARAM KAPAHI (1 supra), the Hon’ble Supreme Court at

paragraphs 37 to 48 held as under:

37. The principles behind Order 12 Rule 6 are to give the plaintiff a

right to speedy judgment. Under this Rule either party may get rid of so

much of the rival claims about which there is no controversy (see the

dictum of Lord Jessel, the Master of Rolls,

in Thorp v. Holdsworth [(1876) 3 Ch D 637] in Chancery Division at p.

640).

 

38. In this connection, it may be noted that Order 12 Rule 6 was

amended by the Amendment Act of 1976. Prior to amendment the Rule

read thus:

6. Judgment on admissions.Any party may at any stage of a

suit, where admissions of fact have been made, either on the

pleadings, or otherwise, apply to the court for such judgment or

order as upon such admissions he may be entitled to, without

waiting for the determination of any other question between the

parties; and the court may upon such application make such order,

or give such judgment, as the court may think just.

 

39. In the 54th Law Commission Report, an amendment was suggested

to enable the court to give a judgment not only on the application of a

party but on its own motion. It is thus clear that the amendment was

brought about to further the ends of justice and give these provisions a

wider sweep by empowering the Judges to use it ex debito justitiae, a

Latin term, meaning a debt of justice. In our opinion the thrust of the

amendment is that in an appropriate case, a party, on the admission of

the other party, can press for judgment, as a matter of legal right.

However, the court always retains its discretion in the matter of

pronouncing judgment.

40. If the provision of Order 12 Rule 1 is compared with Order 12

Rule 6, it becomes clear that the provision of Order 12 Rule 6 is wider

inasmuch as the provision of Order 12 Rule 1 is limited to admission by

pleading or otherwise in writing but in Order 12 Rule 6 the expression

or otherwise is much wider in view of the words used therein, namely:

admission of fact either in the pleading or otherwise, whether orally

or in writing.

41. Keeping the width of this provision (i.e. Order 12 Rule 6) in mind

this Court held that under this Rule admissions can be inferred from the

facts and circumstances of the case (see Charanjit Lal Mehra v. Kamal

Saroj Mahajan [(2005) 11 SCC 279] , SCC at p. 285, para 8). Admissions

in answer to interrogatories are also covered under this Rule

(see Mullas’s Commentary on the Code, 16th Edn., Vol. II, p. 2177).

42. In Uttam Singh Duggal & Co. Ltd. v. United Bank of India [(2000)

7 SCC 120] this Court, while construing this provision, held that the

Court should not unduly narrow down its application as the object is to

enable a party to obtain speedy judgment.

This extract is taken from Karam Kapahi v. Lal Chand Public Charitable

Trust, (2010) 4 SCC 753 : (2010) 2 SCC (Civ) 262 at page 766

43. In Uttam Singh Duggal case [(2000) 7 SCC 120] it was

contended on behalf of the appellant, Uttam Singh Duggal, that:

(a) Admissions under Order 12 Rule 6 should only be those

which are made in the pleadings.

(b) The admissions would in any case have to be read along

with the first proviso to Order 8 Rule 5(1) of the Code and the

court may call upon the party relying on such admission to prove

its case independently.

(c) The expression either in pleadings or otherwise should be

interpreted ejusdem generis. (See para 11, p. 126-27 of the

Report.)

 

Almost similar contentions have been raised on behalf of the Club.

In Uttam Singh[(2000) 7 SCC 120] those contentions were rejected

and this Court opined no effort should be made to narrow down

the ambit of Order 12 Rule 6.

44. In Uttam Singh [(2000) 7 SCC 120] this Court made a distinction

between a suit just between the parties and a suit relating to the Specific

Relief Act, 1963 where a declaration of status is given which not only

binds the parties but also binds generations. The Court held that such a

declaration may be given merely on admission (SCC para 16 at p. 128 of

the Report). But in a situation like the present one where the controversy

is between the parties on an admission of non-payment of rent,

judgment can be rendered on admission by the court.

45. Order 12 Rule 6 of the Code has been very lucidly discussed and

succinctly interpreted in a Division Bench judgment of the Madhya

Pradesh High Court in Shikharchand v. Bari Bai [AIR 1974 MP 75] . G.P.

Singh, J. (as His Lordship then was) in a concurring judgment explained

the aforesaid Rule, if we may say so, very authoritatively at p. 79 of the

Report. His Lordship held: (AIR para 19)

I will only add a few words of my own. Rule 6 of Order 12

of the Code of Civil Procedure corresponds to Rule 5 of Order 32 of

the Supreme Court Rules (English), now Rule 3 of Order 27, and is

almost identically worded (see Annual Practice, 1965 Edn., Part I,

p. 569). The Supreme Court Rule came up for consideration

in Ellis v. Allen [(1914) 1 Ch 904 : (1911-13) All ER Rep 906] . In

that case a suit was filed for ejectment, mesne profits and

damages on the ground of breach of covenant against sub-letting.

Lessee’s solicitors wrote to the plaintiff’s solicitors in which fact of

breach of covenant was admitted and a case was sought to be

made out for relief against forfeiture. This letter was used as an

admission under Rule 5 and as there was no substance in the plea

of relief against forfeiture, the suit was decreed for ejectment

under that Rule. Sargant, J. rejected the argument that the Rule is

confined to admissions made in pleadings or under Rules 1 to 4 in

the same order (same as ours) and said:

The Rule applies wherever there is a clear admission of facts in

the face of which it is impossible for the party making it to

succeed.

Rule 6 of Order 12, in my opinion, must bear the same construction as

was put upon the corresponding English rule by Sargant, J. The words

either on the pleadings or otherwise in Rule 6 enable us not only to see

the admissions made in pleadings or under Rules 1 to 4 of the same

order but also admissions made elsewhere during the trial.

46. This Court expresses its approval of the aforesaid interpretation

of Order 12 Rule 6 by G.P. Singh, J. (as His Lordship then was). Mulla in

his commentary on the Code has also relied on the ratio

in Shikharchand [AIR 1974 MP 75] for explaining these provisions.

47. Therefore, in the instant case even though statement made by

the Club in its petition under Section 114 of the Transfer of Property Act

does not come within the definition of the word pleading under Order 6

Rule 1 of the Code, but in Order 12 Rule 6 of the Code, the word

pleading has been suffixed by the expression or otherwise.

Therefore, a wider interpretation of the word pleading is warranted in

understanding the implication of this Rule. Thus the stand of the Club in

its petition under Section 114 of the Transfer of Property Act can be

considered by the Court in pronouncing the judgment on admission

under Order 12 Rule 6 in view of clear words pleading or otherwise

used therein especially when that petition was in the suit filed by the

Trust.

48. However, the provision under Order 12 Rule 6 of the Code is

enabling, discretionary and permissive and is neither mandatory nor it is

peremptory since the word may has been used. But in a given

situation, as in the instant case, the said provision can be applied in

rendering the judgment.

 

(2) In PAYAL VISION LIMKITED (2 supra), the Hon’ble Supreme Court

at paragraphs 7 and 8 held as under:

7. In a suit for recovery of possession from a tenant whose tenancy

is not protected under the provisions of the Rent Control Act, all that is

required to be established by the plaintiff landlord is the existence of the

jural relationship of landlord and tenant between the parties and the

termination of the tenancy either by lapse of time or by notice served by

the landlord under Section 106 of the Transfer of Property Act. So long

as these two aspects are not in dispute the court can pass a decree in

terms of Order 12 Rule 6 CPC, which reads as under:

6. Judgment on admissions.(1) Where admissions of fact

have been made either in the pleading or otherwise, whether orally

or in writing, the court may at any stage of the suit, either on the

application of any party or of its own motion and without waiting

for the determination of any other question between the parties,

make such order or give such judgment as it may think fit, having

regard to such admissions.

(2) Whenever a judgment is pronounced under sub-rule (1) a

decree shall be drawn up in accordance with the judgment and the

decree shall bear the date on which the judgment was

pronounced.

 

8. The above sufficiently empowers the court trying the suit to

deliver judgment based on admissions whenever such admissions are

sufficient for the grant of the relief prayed for. Whether or not there was

an unequivocal and clear admission on either of the two aspects to which

we have referred above and which are relevant to a suit for possession

against a tenant is, therefore, the only question that falls for

determination in this case and in every other case where the plaintiff

seeks to invoke the powers of the court under Order 12 Rule 6 CPC and

prays for passing of the decree on the basis of admission. Having said

that we must add that whether or not there is a clear admission upon

the two aspects noted above is a matter to be seen in the fact situation

prevailing in each case. Admission made on the basis of pleadings in a

given case cannot obviously be taken as an admission in a different fact

situation. That precisely is the view taken by this Court in Jeevan Diesels

& Electricals Ltd. [(2010) 6 SCC 601 : (2010) 2 SCC (Civ) 745] relied

upon by the High Court where this Court has observed: (SCC p. 604,

para 10)

10. Whether or not there is a clear, unambiguous admission

by one party of the case of the other party is essentially a question

of fact and the decision of this question depends on the facts of

the case. The question, namely, whether there is a clear admission

or not cannot be decided on the basis of a judicial precedent.

Therefore, even though the principles in Karam Kapahi [(2010) 4

SCC 753 : (2010) 2 SCC (Civ) 262] may be unexceptionable they

cannot be applied in the instant case in view of totally different fact

situation.

 

(3) In MAN KAUR(DEAD)BY LRS (3 supra), the Hon’ble Apex Court at

paragraphs 14 and 18, held as follows:

14. In Vidhyadhar and Manikrao :1999 (3) SCC 573, this Court

reiterated the following well recognized legal position:

“Where a party to the suit does not appear in the witness-

box and state his own case on oath and does not offer

himself to be cross-examined by the other side, a

presumption would arise that the case set up by him is not

correct.”

18. We may now summarise for convenience, the position as to

who should give evidence in regard to matters involving personal

knowledge:

(a) An attorney holder who has signed the plaint and

instituted the suit, but has no personal knowledge of the

transaction can only give formal evidence about the validity

of the power of attorney and the filing of the suit.

(b) If the attorney holder has done any act or handled any

transactions, in pursuance of the power of attorney granted

by the principal, he may be examined as a witness to prove

those acts or transactions. If the attorney holder alone has

personal knowledge of such acts and transactions and not

the principal, the attorney holder shall be examined, if those

acts and transactions have to be proved.

(c) The attorney holder cannot depose or give evidence in

place of his principal for the acts done by the principal or

transactions or dealings of the principal, of which principal

alone has personal knowledge.

(d) Where the principal at no point of time had personally

handled or dealt with or participated in the transaction and

has no personal knowledge of the transaction, and where the

entire transaction has been handled by an attorney holder,

necessarily the attorney holder alone can give evidence in

regard to the transaction. This frequently happens in case of

principals carrying on business through authorized

managers/attorney holders or persons residing abroad

managing their affairs through their attorney holders.

(e) Where the entire transaction has been conducted through

a particular attorney holder, the principal has to examine that

attorney holder to prove the transaction, and not a different

or subsequent attorney holder.

(f) Where different attorney holders had dealt with the

matter at different stages of the transaction, if evidence has

to be led as to what transpired at those different stages, all

the attorney holders will have to be examined.

(g) Where the law requires or contemplated the plaintiff or

other party to a proceeding, to establish or prove something

with reference to his `state of mind’ or `conduct’, normally

the person concerned alone has to give evidence and not an

attorney holder. A landlord who seeks eviction of his tenant,

on the ground of his `bona fide’ need and a purchaser

seeking specific performance who has to show his `readiness

and willingness’ fall under this category. There is however a

recognized exception to this requirement. Where all the

affairs of a party are completely managed, transacted and

looked after by an attorney (who may happen to be a close

family member), it may be possible to accept the evidence of

such attorney even with reference to bona fides or

`readiness and willingness’. Examples of such attorney

holders are a husband/wife exclusively managing the affairs

of his/her spouse, a son/daughter exclusively managing the

affairs of an old and infirm parent, a father/mother

exclusively managing the affairs of a son/daughter living

abroad.

(4) In KARAM KAPAHI & ORS (4 supra), the Hon’ble Apex Court, at

paragraphs 45 and 46, held as follows:

45. Order 12 Rule 6 of the Code has been very lucidly discussed

and succinctly interpreted in a Division Bench judgment of Madhya

Pradesh High Court in the case of Shikharchand and others Vs.

Mst. Bari Bai and others reported in AIR 1974 Madhya Pradesh.

Justice G.P. Singh (as His Lordship then was) in a concurring

judgment explained the aforesaid rule, if we may say so, very

authoritatively at page 79 of the report. His Lordship held:-

“… I will only add a few words of my own. Rule 6 of Order

12 of the Code of civil Procedure corresponds to Rule 5 of

Order 32 of the Supreme Court Rules (English), now rule 3 of

Order 27, and is almost identically worded (see Annual

Practice 1965 edition Part I. p. 569). The Supreme Court Rule

came up for consideration in Ellis v. Allen (1914) Ch 904. In

that case a suit was filed for ejectment, mesne profits and

damages on the ground of breach of covenant against sub-

letting.

Lessee’s solicitors wrote to the plaintiff’s solicitors in which

fact of breach of covenant was admitted and a case was

sought to be made out for relief against forfeiture. This letter

was used as an admission under rule 5 and as there was no

substance in the plea of relief against forfeiture, the suit was

decreed for ejectment under that rule. Sargant, J. rejected

the argument that the rule is confined to admissions made in

pleadings or under rules 1 to 4 in the same order (same as

ours) and said:

“The rule applies wherever there is a clear admission of facts

in the face of which it is impossible for the party making it to

succeed.”

Rule 6 of Order 12, in my opinion, must bear the same

construction as was put upon the corresponding English rule

by Sargent, J. The words “either on the pleadings or

otherwise” in rule 6 enable us not only to see the admissions

made in pleadings or under Rules 1 to 4 of the same order

but also admissions made elsewhere during the trial.”

(Emphasis added)

46. This Court expresses its approval of the aforesaid interpretation

of Order 12 Rule 6 by Justice G.P. Singh (as His Lordship then

was). Mulla in his commentary on the Code has also relied on ratio

in Shikharchand (supra) for explaining these provisions.

 

(5) In INDER SAIN BEDI (DEAD) BY LRS (5 supra), the Hon’ble Apex

Court, at paragraph 10, held thus:

10. Shri D. A. Dave, learned senior counsel appearing for

Appellant contended that the contents of documents Ex. D-1 and

P-3 will govern the rights of the parties. Portion shown in green

was not included in the two documents and did not form part of

tenancy and the same is unauthorisedly occupied by the

Respondent. The suit has been filed for the portion shown in red in

the site plan Ex. P-2 which had been let out to the Respondent. In

para 2 of the plaint, the Appellant has specifically pleaded that the

Respondent had taken on rent from him a portion comprising of

hall, 3 office-cum-store rooms, two mezzanine halls and toilet on

the ground floor of the demised premises. In reply to this

averment, Respondent in his written statement pleaded that the

premises described in para 2 in the plaint as having been let out to

the Respondent was substantially correct. This reply clearly

amounts to admission of the allegations made in the corresponding

paragraph of the plaint. That in view of this admission made by the

Respondent, the High Court has gravely erred in recording a

finding to the effect that the Appellant had let out the portion

shown in green as well to the Respondent. That the High Court has

built a new case for the Respondent, which was not even pleaded

by him, in holding that on the expiry of period of licence the

Respondent was taken as a tenant of the entire property of the

Appellant which was in occupation of the Respondent. It was also

contended that there was no registered instrument executed

creating tenancy therefore tenancy will be deemed to be from

month to month terminable with 15 days notice and the High Court

has erred in holding to the contrary.

(6) In VICE-CHAIRMAN, KENDRIYA VIDYALAYA SANGATHAN AND

ANOTHER (6 supra) the Hon’ble Apex Court, at paragraph 11, held as

follows:

11. The admitted facts remain that the respondent is a permanent

resident of Haryana. It further stands admitted that at the relevant

time, Ahirs/Yadavs of Haryana were not treated as OBC. It further

stands admitted that the respondent obtained a certificate showing

that he was a resident of Rajasthan, which he was not. It is not

disputed that a detailed enquiry was conducted by the District

Magistrate, Kota, wherein the respondent had been given an

opportunity of hearing. It is also not in dispute that he had given

an opportunity to show cause as to why his appointment should

not be cancelled not only by the appointing authority but also by

the Appellate Authority. In terms of section 58 of the evidence act,

1872 facts admitted need not be proved. It is also a well-settled

principle of law that the principles of natural justice should not be

stretched too far and the same cannot be put in a straitjacket

formula. In Bar Council Of India v. High Court Of Kerala 2004 6

SCC 311 this Court has noticed that: (SCC p. 324, paras 49-50)

24. The principles of natural justice, it is well settled, cannot be

put into a straitjacket formula. Its application will depend upon the

facts and circumstances of each case. It is also well settled that if a

party after having proper notice chose not to appear, he at later

stage cannot be permitted to say that he had not been given a fair

opportunity of hearing. The question had been considered by a

Bench of this Court in Sohan Lal Gupta v. Asha Devi Gupta 2003 7

SCC 492 of which two of us (V.N Khare, C.J and Sinha, J.) are

parties wherein upon noticing a large number of decisions it was

held: (SCC p. 506, para 29)

29. The principles of natural justice, it is trite, cannot be put in a

straitjacket formula. In a given case the party should not only be

required to show that he did not have a proper notice resulting in

violation of principles of natural justice but also to show that he

was seriously prejudiced thereby.

25. The principles of natural justice, it is well settled, must not be

stretched too far.

(See also Mardia Chemicals Ltd. v. Union of India 2004 4 SCC 311

and Canara Bank v. Debasis Das 2003 4 SCC 557.)

In Union of India v. Tulsiram Patel 1985 3 SCC 398 whereupon

reliance has been placed by Mr Reddy, this Court held: ( SCC p.

477, para 97)

97. Though the two rules of natural justice, namely, nemo judex in

causa sua and audi alteram partem, have now a definite meaning

and connotation in law and their content and implications are well

understood and firmly established, they are nonetheless not

statutory rules. Each of these rules yields to and changes with the

exigencies of different situations. They do not apply in the same

manner to situations which are not alike. These rules are not cast

in a rigid mould nor can they be put in a legal straitjacket. They

are not immutable but flexible. These rules can be adapted and

modified by statutes and statutory rules and also by the

constitution of the Tribunal which has to decide a particular matter

and the rules by which such Tribunal is governed.

 

(7) In P.V.V.A.V. PRASAD (7 supra), this Court at paragraphs 17, 21 and

22, held as under:

17. In Nagindas Ramdas v. Dalpatram Ichharam @ Brijram and

others5, the principle laid down is that admissions, if true and

clear, are by far the best proof of the facts admitted and the

admissions in pleadings were opined to be admissible as judicial

admissions under Section 58 of the Evidence Act, which stands on

a higher footing than evidentiary admissions. The admissions in

pleadings were held to be fully binding on the party and to

constitute a waiver of proof. Such admissions were held to be

capable of being made the foundation of the rights of the parties

and incidentally, that was also a case seeking eviction under the

Rent Control Act decided on such an admission.

21. Thus, a close consideration of the precedents cited by both

the parties leads to the conclusion that a statement made in a

pleading can be acted upon as an admission for the purposes of

Order XII Rule 6 of the Code of Civil Procedure and irrespective of

resorting to pronouncement of a judgment on the basis of the

statement in the written statement of the respondent or not, the

fact remains that the rights flowing out of the unregistered lease

deed being the subject of a specific issue before the trial Court and

a specific ground of appeal before the first appellate Court, the

factum of expiry of the period of lease claimed by the respondent

ought to have been taken into consideration by the first appellate

Court as a subsequent event or circumstance having material

bearing on the rights of the parties under adjudication. If so,

therefore, the first appellate Court committed an error of law in not

taking note of and acting upon the expiry of the period of lease by

the end of September 2009 even according to the defence of the

respondent in the written statement and irrespective of other

considerations, when the lease stood determined by efflux of time,

the first appellate Court should have moulded the relief to be

granted in tune with the same.

22. Concerning the validity of notice to quit, the first appellate

Court went into the oral and documentary evidence in detail and

noted that PW.1 was ignorant whether the respondent was

residing in the address mentioned in the postal acknowledgment

under Ex.A.3, which specified that there was no such addressee in

that door number and hence, returned to the sender. The first

appellate Court, with reference to a decision of the Madras High

Court, which dealt with in detail about service and tender of such

communications with reference to the statutory presumption under

Section 114 of the Evidence Act and the relevant provisions of the

General Clauses Act, concluded that there was no valid tender of

notice to quit. Sri C. Raghu, learned counsel for the respondent,

has brought to notice the discrepancies in the addresses given in

the notice to quit and the postal acknowledgments marked as

Exs.A.1 to A.3 respectively. In the absence of oral and

documentary evidence probablising valid tender of notice to quit on

the respondent, the requirement of Section 106 of the Transfer of

Property Act cannot be considered to have been complied with as

what has been relaxed by the statutory amendments by the

Central Act 3 of 2003 amending Section 106 is the requirement

concerning the period of notice, but not dispensing with the notice

itself. It is true that sub-section 4 of Section 106 only requires

tender of the notice to quit to the party concerned or sending of

such notice to quit by post to the party and also permits affixture if

tender or delivery is not practicable. But the said sub-section 4

cannot be considered as indicating the total absence of any

necessity to prove a genuine attempt to serve such notice or a

genuine tender of such notice, which was still not received by the

party addressed. As the evidence on record in the suit coupled with

the ignorance of PW.1 referred to by the first appellate Court is

suggestive of the probable absence of a valid tender of notice to

the respondent, the respondent could not have been entitled to

suit reliefs on the basis of such notices to quit and this point is

answered accordingly.

 

(8) In TASTE HOTELS (P) LTD., ONGOLE, PRAKASAM DISTRICT

(8 supra), this Court at paragraphs 20 and 23 of the judgment, held as

follows:

20. Now comes the necessity to understand the purport of the

word ‘admission’ employed in Rule 6. This in fact, is the subject

matter of interpretation by the Supreme Court in Uttam Singh

Dugal and Company Ltd’s case (3 supra), Karam Kapahi’s case (4

supra), and the Delhi High Court in Parivar Seva Sansthan’s case (5

supra). Their Lordships of the Supreme Court and the Delhi High

Court in the judgments referred to above held that the admission

need not be confined to the one in pleadings. In fact, the language

of the provision itself suggests that it can be either in the pleadings

or otherwise. Further, the admissions can be either oral or in

writing. The words “orally or in writing” provide guidance to

understand the idea succinctly. The admission in writing can be

either in a written statement in that very suit, counters, or

affidavits in the miscellaneous proceedings and in certain cases the

admissions in the pleadings in other proceedings.

23. 20. If an oral statement or admission is made in the Court,

the same shall form part of the record. The statement so recorded

can certainly constitute the basis to render judgment under Rule 6

of Order XII Code of Civil Procedure.

 

16. Coming to the Judgments relied upon by the learned counsel for the

2nd respondent:

(9) In JANKI VASHDEO BHOJWANI AND ANOTHER (9 supra), the

Hon’ble Supreme Court at paragraph 13 held as under:

 

Order 3 Rules 1 and 2 CPC empower the holder of power of

attorney to act on behalf of the principal. In our view the word acts

employed in Order 3 Rules 1 and 2 CPC confines only to in respect of

acts done by the power-of-attorney holder in exercise of power

granted by the instrument. The term acts would not include deposing

in place and instead of the principal. In other words, if the power-of-

attorney holder has rendered some acts in pursuance of power of

attorney, he may depose for the principal in respect of such acts, but he

cannot depose for the principal for the acts done by the principal and not

by him. Similarly, he cannot depose for the principal in respect of the

matter of which only the principal can have a personal knowledge and in

respect of which the principal is entitled to be cross-examined.

 

 

(10) In VIDHYADHAR (10 supra), the Hon’ble Supreme Court at

paragraph 17 held as under:

Where a party to the suit does not appear in the witness-box and

states his own case on oath and does not offer himself to be cross-

examined by the other side, a presumption would arise that the case

set up by him is not correct as has been held in a series of decisions

passed by various High Courts and the Privy Council beginning from the

decision in Sardar Gurbakhsh Singh v. Gurdial Singh [AIR 1927 PC 230

: 32 CWN 119] . This was followed by the Lahore High Court in Kirpa

Singh v. Ajaipal Singh [AIR 1930 Lah 1 : ILR 11 Lah 142] and the

Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai

Krishnarao Deshmukh [AIR 1931 Bom 97 : 32 Bom LR 924] . The

Madhya Pradesh High Court in Gulla Kharagjit Carpenterv. Narsingh

Nandkishore Rawat [AIR 1970 MP 225 : 1970 MPLJ 586] also followed

the Privy Council decision in Sardar Gurbakhsh Singh case [AIR 1927

PC 230 : 32 CWN 119] . The Allahabad High Court in Arjun

Singh v. Virendra Nath [AIR 1971 All 29] held that if a party abstains

from entering the witness-box, it would give rise to an adverse

inference against him. Similarly, a Division Bench of the Punjab and

Haryana High Court in Bhagwan Dass v. Bhishan Chand [AIR 1974 P&H

7] drew a presumption under Section 114 of the Evidence Act, 1872

against a party who did not enter the witness-box.

 

(11) In WESTERN COALFIELDS LTD. (supra 10), the Bombay High Court

at paragraph 5 held as under:

 

If one examines the pleadings particularly para 9 of the written

statement which is in reply to para 6-D of the plaint, and paras 20 and

21 of the specific pleadings, the admissions given by the defendant is not

absolute, but it is conditional and it has been specifically stated that in

terms of another contract, the said amount is already appropriated.

Therefore, in these facts and circumstances, it cannot be said that there

is an unqualified admission on the part of the defendant which would

invite a decree against it for the said amount. The nature of admission

made by the defendant cannot be held to be conclusive so as to invite an

order under Rule 6 of Order 12, C.P.C. The nature of admission is such

that it is only a statement of the case upon which the defendant

intended to rely and would not operate as an estoppel against him as

understood under Section 115 of the Evidence Act. As this admission

made by the defendant is qualified, it is to be read as a whole while

considering whether a decree can be passed against the defendant on

such admission. As the admission is qualified and it is specifically pleaded

that the said amount has been appropriated against another claim under

contract between the parties, the Court should not have proceeded to

pass the impugned order which would be discretionary. (Dudhnath

Pande v. Sureshchandra Bhattasalli, AIR 1986 SC 1509). Therefore, in

the facts and circumstances, the Court ought not to have passed the

impugned order in the manner it has directed the defendant to deposit

the amount in Court with a condition that on failure to deposit, the

defendant will be liable to pay the interest on the said amount which was

to be determined.

(12) In JEEVAN DIESELS AND ELECTRICALS LTD. (13 supra), the

Hon’ble Supreme Court at paragraphs 16 to 22 held as under:

 

16. In this connection reference may be made to an old decision of the

Court of Appeal between Gilbert v. Smith reported in 1875-76 (2) CD

686. Dealing with the principles of Order XL, Rule 11, which was a similar

provision in English Law, Lord Justice James held, “if there was anything

clearly admitted upon which something ought to be done, the plaintiff

might come to the Court at once to have that thing done, without any

further delay or expense” (see page 687). Lord Justice Mellish expressing

the same opinion made the position further clear by saying, “it must,

however, be such an admission of facts as would shew that the plaintiff

is clearly entitled to the order asked for”. The learned Judge made it

further clear by holding, “the rule was not meant to apply when there is

any serious question of law to be argued. But if there is an admission on

the pleading which clearly entitles the plaintiff to an order, then the

intention was that he should not have to wait but might at once obtain

any order” (see page 689).

 

17. In another old decision of the Court of Appeal in the case of Hughes

v. London, Edinburgh, and Glasgow Assurance Company (Limited)

reported in 1891-92 8 TLR 81, similar principles were laid down by Lord

Justice Lopes, wherein His Lordship held “judgment ought not to be

signed upon admissions in a pleading or an affidavit, unless the

admissions were clear and unequivocal”. Both Lord Justice Esher and

Lord Justice Fry concurred with the opinion of Lord Justice Lopes.

 

18. In yet another decision of the Court of Appeal in Landergan v. Feast

reported in 1886-87 85 ltr 42, in an appeal from Chancery Division, Lord

Justice Lindley and Lord Justice Lopes held that party is not entitled to

apply under the aforesaid rule unless there is a clear admission that the

money is due and recoverable in the action in which the admission is

made.

 

19. The decision in Landergan (supra) was followed by the Division

Bench of Calcutta High Court in Koramall Ramballav v. Mongilal

Dalimchand reported in 23 CWN (1918-19) 1017. Chief Justice

Sanderson, speaking for the Bench, accepted the formulation of Lord

Justice Lopes and held that admission in Order 12, Rule 6 must be a

“clear admission”.

 

20. In the case of J.C. Galstaun v. E.D. Sassoon & Co., Ltd. reported in

27 CWN (1922-23) 783, a Bench of Calcutta High Court presided over by

Hon’ble Justice Sir Asutosh Mookerjee sitting with Justice Rankin while

construing the provisions of Order 12, Rule 6 of the Code followed the

aforesaid decision in Hughes (supra) and also the view of Lord Justice

Lopes in Landergan (supra) and held that these provisions are attracted

“where the other party has made a plain admission entitling the former

to succeed. This rule applies where there is a clear admission of the facts

on the face of which it is impossible for the party making it to succeed”.

In saying so His Lordship quoted the observation of Justice Sargent in

Ellis v. Allen (1914) 1 Ch. D. 904 {See page 787}.

 

21. Similar view has been expressed by Chief Justice Broadway in the

case of Abdul Rahman and brothers v. Parbati Devi reported in AIR 1933

Lahore 403. The learned Chief Justice held that before a Court can act

under Order 12, Rule 6, the admission must be clear and unambiguous.

 

22. For the reasons discussed above and in view of the facts of this case

this Court cannot uphold the judgment of the High Court as well as of

the Additional District Judge. Both the judgments of the High Court and

of the Additional District Judge are set aside.

 

(13) In M.ALI BAIG (12 supra), this Court at paragraphs 73 to 75 held as

under:

 

73. Under Section 20 of the Specific Relief Act, 1963, 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. Where the terms

of the contract or the conduct of the parties at the time of entering into

the contract or other circumstances under which the contract was

entered into are such that the contract, though not voidable, gives the

plaintiff an unfair advantage over the defendant, the court may not

decree specific performance. [see Clause (a) to sub-Section (2) of

Section 20].

74. In Laxman Tatyaba Kankate v. Taramati Harishchandra Dhatrak16,

the Supreme Court considered the principles relating to exercise of

discretion under Section 20 of the Specific Relief Act, 1963 and held:

19. It will also be useful to refer to the provisions of Section 20 of

the Act which vests the court with a wide discretion either to

decree the suit for specific performance or to decline the same.

Reference in this regard can also be made to Bal

Krishna v. Bhagwan Das, where this Court held as under: (SCC pp.

152-53, paras 13-14)

13. The compliance with the requirement of Section 16(c) is

mandatory and in the absence of proof of the same that the

plaintiff has been ready and willing to perform his part of the

contract suit cannot succeed. The first requirement is that he must

aver in plaint and thereafter prove those averments made in the

plaint. The plaintiff’s readiness and willingness must be in

accordance with the terms of the agreement. The readiness and

willingness of the plaintiff to perform the essential part of the

contract would be required to be demonstrated by him from the

institution of the suit till it is culminated into decree of the court.

14. It is also settled by various decisions of this Court that by virtue

of Section 20 of the Act, the relief for specific performance lies in

the discretion of the court and the court is not bound to grant such

relief merely because it is lawful to do so. The exercise of the

discretion to order specific performance would require the court to

satisfy itself that the circumstances are such that it is equitable to

grant decree for specific performance of the contract. While

exercising the discretion, the court would take into consideration

the circumstances of the case, the conduct of parties, and their

respective interests under the contract. No specific performance of

a contract, though it is not vitiated by fraud or misrepresentation,

can be granted if it would give an unfair advantage to the plaintiff

and where the performance of the contract would involve some

hardship on the defendant, which he did not foresee. In other

words, the court’s discretion to grant specific performance is not

exercised if the contract is not equal and fair, although the contract

is not void.

20. Similar view was taken by this Court in Mohammadia Coop.

Building Society Ltd. v. Lakshmi Srinivasa Coop. Building Society

Ltd. where the Court reiterated the principle that jurisdiction of the

court to grant specific performance is discretionary and the role of

the plaintiff is one of the most important factor to be taken into

consideration.

21. We may also notice that in Parakunnan Veetill Joseph’s Son

Mathew v. Nedumbara Kuruvila’s Son, this Court further cautioned

that while exercising discretionary jurisdiction in terms of Section

20 of the Act, the court should meticulously consider all facts and

circumstances of the case. The court is expected to take care to

see that the process of the court is not used as an instrument of

oppression giving an unfair advantage to the plaintiff as opposed

to the defendant in the suit.(emphasis supplied)

75. Applying the above principles to the facts of this case, in my

considered opinion, upholding the decree of specific performance

granted by the court below, in the light of the findings recorded by me

supra, would not be proper and would result in giving an unfair

advantage to the plaintiff over the defendants. The conduct of the

plaintiff and the pleas raised by him having been proved to be false, also

disentitle him to the discretionary relief of specific performance.

 

 

16. Having regard to the facts and circumstances of the case and the

categoric admission of the 2nd defendant in the suit/2nd respondent herein,

the judgments on which the learned counsel for 2nd respondent places

reliance would not be helpful to the case of the 2nd respondent. It is of-

course a settled proposition of law that the primary relief of specific

performance need not be granted simply because the same is lawful to do so.

At the same time, it is also a settled and well established principle of law that

the said relief cannot be refused in an arbitrary, illegal, unreasonable and

inequitable manner. In the instant case, knowing fully well about the

existence of Ex.A3 sale agreement in favour of plaintiff, the 3rd defendant

purchased the property by way of Ex.A8 sale deed. As observed supra, the

defendants proceeded with the transaction pertaining to Ex.A8 sale deed

despite Ex.A5 and A7 notices. By any stretch of imagination, it cannot be

said that the 3rd defendant is a bonafide purchaser for valuable consideration

to have the protection under the provisions of Specific Relief Act. The non-

examination of the plaintiff herself, in the facts and circumstances of the case

and in view of the active participation of the General Power of Attorney

Holder of the plaintiff and in view of the Judgment of the Honble Apex Court

in MAN KAUR (DEAD) BY LRS (3 supra), would not be fatal to the case of

the plaintiff. In the considered opinion of this Court, the rejection of

primary relief of specific relief of agreement of sale in favour of plaintiff is not

only illegal, but also highly unreasonable. If these types of transactions

covered by Ex.A8 are allowed to sustain, people will loose faith in the

transactions and the rule of law. In the definite opinion of this Court, plaintiff

not only pleaded, but also proved his readiness and willingness to perform his

part of the contract and it is the defendants who went back from Ex.A3

agreement of sale and executed unreasonably Ex.A8 sale deed in favour of

3rd defendant. Therefore, all the issues are answered in favour of plaintiff

and against the defendants and Ex.A8 sale deed executed in favour of 3rd

defendant is to be declared as null and void.

 

17. For the aforesaid reasons, this Appeal Suit is allowed, decreeing the

suit as prayed for. The judgment and decree dated 30.1.1997 passed in

O.S.No.155 of 1988 on the file of Court of III Additional Subordinate Judge,

Visakhapatnam is hereby set aside and Ex.A8 sale deed is declared as null

and void and the Defendant No.2 is directed to register the suit schedule

properties in favour of plaintiff, after receiving balance sale consideration and

in the event of failure on his part, the sale deed shall be executed by the

Court below in favour of plaintiff in respect of the suit schedule properties.

As a sequel, the miscellaneous petitions, if any, shall stand closed. There

shall be no order as to costs.

______________

A.V.SESHA SAI, J

Date: 6.12.2017