K. Karuppuraj vs M. Ganesan

HELD:1.1 The High Court has disposed of the appeal preferred under Order XLI CPC read with Section 96 in a most casual and perfunctory manner. Apart from the fact that the High Court has not framed the points for determination as required under Order XLI Rule 31 CPC, it appears that the High Court has not exercised the powers vested in it as a First Appellate Court. The High Court has neither reappreciated the entire evidence on record nor has given any specific findings on the issues which were even raised before the Trial Court. As per the case of the original plaintiff- respondent, the defendant-appellant was required to evict the tenants and hand over the physical and vacant possession at the time of execution of the sale deed on payment of full sale consideration. Even in the suit notice issued by the plaintiff, the plaintiff called upon the defendant to evict the tenants and thereafter execute the sale deed on payment of full consideration from the plaintiff. Even when the pleadings and the averments in the plaint are considered, it appears that the plaintiff was never willing to get the sale deed executed with tenants and/or as it is. It was the insistence on the part of the plaintiff to deliver the vacant possession after evicting the tenants. Therefore, on the basis of the pleadings in the plaint and on appreciation of evidence, the Trial Court held the issue of willingness against the plaintiff. However, before the High Court, the plaintiff filed an affidavit stating that he is now ready and willing to get the sale deed executed with respect to the property with tenants and the High Court relying upon the affidavit in the first appeal considered that as now the plaintiff is ready and willing to purchase the property with tenants and get the sale deed executed with respect to the property in question with tenants, the High Court has allowed the appeal and decreed the suit for specific performance. The aforesaid procedure adopted by the High Court relying upon the affidavit in a First Appeal by which virtually without submitting any application for amendment of the plaint under Order VI Rule 17 CPC, the High Court as a First Appellate Court has taken on record the affidavit and as such relied upon the same. Such a procedure is untenable and unknown to law. First appeals are to be decided after following the procedure to be followed under the CPC. The affidavit, which was filed by the plaintiff and which has been relied upon by the High Court is just contrary to the pleadings in the plaint. There were no pleadings in the plaint that he is ready and willing to purchase the property and get the sale deed executed of the property with tenants and the specific pleadings were to hand over the peaceful and vacant possession after getting the tenants evicted and to execute the sale deed. The proper procedure would have been for the plaintiff to move a proper application for amendment of the plaint in exercise of the power under Order VI Rule 17 CPC, if at all it would have been permissible in a first appeal under Section 96 read with Order XLI CPC. However, straightaway to rely upon the affidavit without amending the plaint and the pleadings is wholly impermissible under the law. Therefore, such a procedure adopted by the High Court is disapproved. The learned Trial Court held the issue of willingness against the plaintiff by giving cogent reasons and appreciation of evidence and considering the pleadings and averments in the plaint. The Trial Court was justified in holding the issue of willingness against the plaintiff. The plaintiff was never ready and willing to purchase the property and/or get the sale deed executed of the property with tenants. It was for the first time before the High Court in the affidavit filed before the High Court and subsequently when the Trial Court held the issue of willingness against the plaintiff, the plaintiff came out with a case that he is ready and willing to purchase the property with tenants. For the purpose of passing the decree for specific performance, the plaintiff has to prove both the readiness and willingness. Therefore, once it is found on appreciation of evidence that there was no willingness on the part of the plaintiff, the plaintiff is not entitled to the decree for specific performance. Therefore, in the present case, the Trial Court was justified in refusing to pass the decree for specific performance. [Paras 6, 8][752-B-C; 754-G-H; 755-A-H; 756-A-C]

B.V. Nagesh and Anr. Vs. H.V. Sreenivasa Murthy (2010)

13 SCC 530 : [2010] 11 SCR 784; H. Siddiqui (Dead) by LRs. Vs. A. Ramalingam (2011) 4 SCC 240 : [2011]

5 SCR 587; State Bank of India and Anr. Vs. Emmsons International Limited and Anr. (2011) 12 SCC 174 : [2011] 10 SCR 436; Madhukar and Ors. Vs. Sangram and Ors.,(2001) 4 SCC 756 : [2001] 3 SCR 138; H.K.N. Swami Vs. Irshad Basith (Dead) by LRs., (2005) 10 SCC 243; Jagannath Vs. Arulappa and Anr. (2005) 12 SCC

303 – relied on.

1.2 Not refunding the amount of part sale consideration with 18% interest as ordered by the Trial Court cannot be a ground to confirm the impugned judgment and order passed by the High Court. The plaintiff as such could have filed an execution petition to execute the judgment/decree passed by the Trial Court. The appellant-original defendant to refund the amount of Rs.3,60,001/- with 18% interest from the date of the agreement till the date of realization within a period of eight weeks from today. The impugned judgment and order passed by the High Court of judicature at Madras in Appeal Suit No. 94 of 2010 is quashed and set aside and the judgment and decree passed by the Trial Court stands restored. [Paras 10, 11][757-F-H]