Case Note & Summary
The case arises from a suit for specific performance of an agreement of sale dated 8-8-1973 filed by the original plaintiff (respondent No.1) against the original defendant (appellant). The trial court dismissed the suit, but the first appellate court reversed the decision and decreed specific performance. The defendant filed a second appeal in the Bombay High Court. The High Court framed substantial questions of law regarding whether the agreement was unconscionable, whether the first appellate court could decree the suit without finding readiness and willingness, and whether it could rely on statements before the Tahsildar without following Order 41 Rule 27 CPC. The High Court found that the first appellate court had erred in not considering the unconscionable nature of the transaction, in not determining readiness and willingness which is a sine qua non for specific performance, and in relying on documents not properly produced or proved. The High Court allowed the appeal, set aside the decree of the first appellate court, and restored the trial court's dismissal of the suit.
Headnote
A) Specific Relief Act, 1963 - Section 20 - Unconscionable Transaction - Agreement of Sale - The court considered whether the agreement dated 8-8-1973 was unconscionable and whether discretion under Section 20 should have been exercised in favour of the plaintiff. The court held that the transaction was unconscionable and the first appellate court erred in granting specific performance without proper proof. (Paras 1-3)
B) Specific Relief Act, 1963 - Section 16(c) - Readiness and Willingness - Sine Qua Non - The court held that readiness and willingness is a sine qua non for granting a decree for specific performance. The first appellate court decreed the suit without arriving at a finding on readiness and willingness, which is a substantial error. (Paras 1-2)
C) Code of Civil Procedure, 1908 - Order 41 Rule 27 - Additional Evidence in Appeal - The court held that the first appellate court could not rely on alleged statements made before the Tahsildar without the same being produced by making an application under Order 41 Rule 27 and without confronting the appellants. Such reliance is impermissible. (Paras 1-3)
D) Evidence Act, 1872 - Proof of Documents - Agreement of Sale - The court held that the first appellate court was not justified in relying upon the alleged agreement of sale when the same was not proved in accordance with law. The document was not properly exhibited or proved. (Paras 1-3)
Issue of Consideration
Whether the document dated 8-8-1973 purporting to be an agreement of sale is unconscionable and whether the first appellate court could decree the suit without finding readiness and willingness, and whether it could rely on statements before Tahsildar without being produced under Order 41 Rule 27 CPC.
Final Decision
The High Court allowed the second appeal, set aside the judgment and decree of the first appellate court, and restored the trial court's dismissal of the suit.
Law Points
- Specific performance
- readiness and willingness
- unconscionable transaction
- Order 41 Rule 27 CPC
- Section 20 Specific Relief Act
- 1963
Case Details
Second Appeal No. 37 of 1988
Mr. Surel Shah for the Appellant, Mr. Sandeep Salunkhe for the Respondents
Bhagirathibai Gajanan Jadhav (deceased) through LRs Dagadu Gajanan Jadhav and Bhimashankar Gajanan Jadhav
Shivdas Pralhad Mane, Sitabai Nanasaheb Chavan, Latabai Madhukar Javale (deceased) through LRs Madhukar Jawale, Santosh Madhukar Jawale, Sachin Madhukar Jawale, Manisha Madhukar Jawale
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Nature of Litigation
Civil suit for specific performance of an agreement of sale and possession of suit property.
Remedy Sought
The plaintiff (respondent No.1) sought a decree for specific performance of the agreement dated 8-8-1973 and possession of the suit property.
Filing Reason
The plaintiff claimed that the defendant had entered into an agreement to sell the suit property but failed to execute the sale deed.
Previous Decisions
The trial court dismissed the suit. The first appellate court reversed the trial court's decision and decreed the suit for specific performance.
Issues
Whether the document dated 8-8-1973 purporting to be an agreement of sale is unconscionable and the Court should not have exercised discretion under Section 20 of the Specific Relief Act in favour of the plaintiff?
Whether the learned first Appellate Court could have decreed the suit without arriving at the finding regarding readiness and willingness which is a sine qua non for granting decree for specific performance?
Whether the learned first Appellate Court could have relied upon the alleged statements of appellants made before the Tahsildar without the same being produced by making an application under Order 41 Rule 27 and further without the same being confronted to the applicants?
Whether the first Appellate Court was justified in relying upon the alleged statement made before Tahsildar when before the trial Court despite the opportunity it were not produced nor was any justification/explanation offered for omission to produce the same?
Whether the first Appellate Court was justified in relying upon the alleged agreement of sale when the same was not proved in eyes of law?
Submissions/Arguments
The appellant argued that the agreement was unconscionable and the court should not have exercised discretion under Section 20 of the Specific Relief Act.
The appellant argued that the first appellate court decreed the suit without finding readiness and willingness, which is a sine qua non.
The appellant argued that the first appellate court relied on statements before the Tahsildar without proper production under Order 41 Rule 27 and without confrontation.
The appellant argued that the agreement of sale was not proved in accordance with law.
Ratio Decidendi
Readiness and willingness is a sine qua non for granting a decree for specific performance. The first appellate court cannot rely on documents not produced in trial without following Order 41 Rule 27 CPC. An unconscionable transaction should not be enforced under Section 20 of the Specific Relief Act, 1963.
Judgment Excerpts
Whether the learned first Appellate Court could have decreed the suit without arriving at the finding regarding readiness and willingness which is a sine qua non for granting decree for specific performance?
Whether the first Appellate Court was justified in relying upon the alleged agreement of sale when the same was not proved in eyes of law?
Procedural History
The plaintiff filed a suit for specific performance in the trial court, which was dismissed. The plaintiff appealed to the first appellate court, which reversed the trial court's decision and decreed the suit. The defendant then filed a second appeal in the Bombay High Court, which was admitted on substantial questions of law. During pendency, the appellant amended grounds to add four additional grounds. The High Court heard the appeal and allowed it, setting aside the first appellate court's decree.
Acts & Sections
- Specific Relief Act, 1963: Section 20, Section 16(c)
- Code of Civil Procedure, 1908: Order 41 Rule 27
- Indian Evidence Act, 1872:
