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
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
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