Case Note & Summary
The appeal arises from a suit for specific performance of an agreement to sell dated 15.05.1978 executed by the respondent-defendant in favor of the appellant-plaintiff for a piece of land in Kolhapur. The agreed consideration was Rs. 6,000, out of which Rs. 1,000 was paid as earnest money. The balance was to be paid at the time of registration, which was to take place on or before 15.06.1978. The plaintiff alleged that the defendant failed to execute the sale deed despite repeated requests. The defendant denied the agreement and contended that the plaintiff was not ready and willing to perform. The trial court dismissed the suit on the ground that the plaintiff failed to prove readiness and willingness. In appeal, the plaintiff filed an application under Order 41 Rule 27 CPC to produce additional evidence, which was also dismissed. The High Court framed two issues: (i) whether the plaintiff is entitled to specific performance, and (ii) whether the plaintiff is entitled to lead additional evidence. On the first issue, the court held that the plaintiff did not adduce any evidence to show that he had the necessary funds or capacity to pay the balance consideration. The plaintiff merely stated that he was ready and willing, but no documentary evidence was produced. The court relied on Section 16(c) of the Specific Relief Act, 1963, which requires the plaintiff to plead and prove continuous readiness and willingness. The court found that the plaintiff failed to discharge this burden. On the second issue, the court held that the documents sought to be produced were either in the plaintiff's possession or could have been obtained with due diligence at the time of trial. The plaintiff did not satisfy the conditions of Order 41 Rule 27 CPC. Accordingly, the appeal was dismissed, and the judgment of the trial court was confirmed.
Headnote
A) Specific Relief Act, 1963 - Section 16(c) - Readiness and Willingness - Plaintiff must plead and prove continuous readiness and willingness to perform his part of the contract from the date of agreement till the date of decree - In the instant case, the plaintiff failed to adduce any evidence to show that he had the necessary funds or capacity to pay the balance consideration - Held that the plaintiff is not entitled to specific performance (Paras 14-20). B) Code of Civil Procedure, 1908 - Order 41 Rule 27 - Additional Evidence in Appeal - The appellate court may allow additional evidence only if the party seeking to adduce it satisfies the conditions under Order 41 Rule 27, i.e., that the evidence was not within his knowledge or could not be produced despite due diligence - In this case, the appellant sought to produce documents which were in his possession or could have been obtained earlier - Held that the application for additional evidence was rightly rejected (Paras 21-28). C) Limitation Act, 1963 - Article 54 - Suit for Specific Performance - Limitation period of three years from the date fixed for performance - The agreement fixed 15.06.1978 as the date for execution of sale deed - Suit filed on 15.06.1981 is within limitation - However, the plaintiff failed to prove readiness and willingness - Held that the suit is not barred by limitation but fails on merits (Paras 11-13).
Issue of Consideration
Whether the appellant-plaintiff is entitled to a decree for specific performance of the agreement to sell dated 15.05.1978 and whether the appellant is entitled to lead additional evidence at the appellate stage under Order 41 Rule 27 of the Code of Civil Procedure, 1908.
Final Decision
The High Court dismissed the appeal, confirming the trial court's judgment. The court held that the plaintiff failed to prove readiness and willingness as required under Section 16(c) of the Specific Relief Act, 1963, and that the application for additional evidence under Order 41 Rule 27 CPC was rightly rejected. No order as to costs.
Law Points
- Specific performance
- Readiness and willingness
- Additional evidence at appellate stage
- Order 41 Rule 27 CPC
- Section 16(c) Specific Relief Act
- 1963
- Burden of proof
- Limitation for filing suit
