Case Note & Summary
The petitioner, Ashok Maruti Dake, filed a suit for specific performance of an agreement to sell dated 15-06-1992 allegedly executed by the original defendant Papamiya Hajimiya (since deceased) in respect of agricultural land. The trial court dismissed the suit, holding that the plaintiff failed to prove the execution of the agreement and his readiness and willingness to perform the contract. The first appellate court confirmed the dismissal. The petitioner then filed a writ petition under Article 227 of the Constitution of India challenging the concurrent findings. The High Court examined the evidence, noting that the attesting witnesses to the agreement were not examined and the plaintiff's evidence was inconsistent. The court held that the findings of fact recorded by the courts below were based on proper appreciation of evidence and were not perverse. The writ petition was dismissed with no order as to costs.
Headnote
A) Specific Relief Act, 1963 - Section 20 - Specific Performance - Discretionary Relief - The court declined to grant specific performance of an agreement to sell as the plaintiff failed to prove the execution of the agreement and his readiness and willingness to perform his part of the contract. The concurrent findings of fact by the courts below were based on appreciation of evidence and were not perverse. (Paras 1-10)
B) Civil Procedure Code, 1908 - Order 41 Rule 31 - Appellate Judgment - The first appellate court's judgment was held to be in compliance with Order 41 Rule 31 as it independently appreciated the evidence and recorded findings on all issues. (Para 8)
C) Constitution of India - Article 227 - Supervisory Jurisdiction - The High Court refused to interfere with concurrent findings of fact under Article 227 as the findings were not perverse and no jurisdictional error was shown. (Para 10)
Issue of Consideration
Whether the concurrent findings of the trial court and first appellate court refusing specific performance of an agreement to sell were perverse or suffered from any jurisdictional error warranting interference under Article 227 of the Constitution of India.
Final Decision
The High Court dismissed the writ petition with no order as to costs, upholding the concurrent findings of the trial court and first appellate court.
Law Points
- Specific performance
- burden of proof
- concurrent findings of fact
- interference under Article 227
- appreciation of evidence
- agreement to sell
- readiness and willingness
Case Details
2011 LawText (BOM) (04) 18
Writ Petition No.7846 of 2009
Shri V.S. Bedre for Petitioner, Shri P.R. Katneshwarkar for Respondent Nos.1 to 4
Papamiya Hajimiya (Deceased) Through his L.Rs. and Others
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Nature of Litigation
Civil suit for specific performance of an agreement to sell agricultural land.
Remedy Sought
The petitioner sought specific performance of an agreement to sell dated 15-06-1992 and consequential relief of possession.
Filing Reason
The petitioner claimed that the original defendant executed an agreement to sell agricultural land for consideration of Rs. 1,50,000/- and paid Rs. 25,000/- as earnest money, but the defendant failed to execute the sale deed.
Previous Decisions
The trial court dismissed the suit. The first appellate court confirmed the dismissal. The petitioner then filed the present writ petition.
Issues
Whether the plaintiff proved the execution of the agreement to sell dated 15-06-1992?
Whether the plaintiff proved his readiness and willingness to perform his part of the contract?
Whether the concurrent findings of the courts below are perverse or suffer from any jurisdictional error?
Submissions/Arguments
Petitioner argued that the courts below erred in appreciating the evidence and that the findings were perverse.
Respondents supported the concurrent findings and argued that the writ petition under Article 227 should not be entertained.
Ratio Decidendi
The court held that the concurrent findings of fact recorded by the courts below were based on proper appreciation of evidence and were not perverse. The High Court, in exercise of its supervisory jurisdiction under Article 227, would not interfere with such findings unless there is a jurisdictional error or perversity. The plaintiff failed to prove the agreement and his readiness and willingness.
Judgment Excerpts
The trial court dismissed the suit. The first appellate court confirmed the dismissal.
The concurrent findings of fact recorded by the courts below are based on appreciation of evidence and are not perverse.
Procedural History
The petitioner filed a suit for specific performance in the trial court, which was dismissed. The petitioner appealed to the first appellate court, which confirmed the dismissal. The petitioner then filed a writ petition under Article 227 before the High Court.
Acts & Sections
- Specific Relief Act, 1963: Section 20
- Code of Civil Procedure, 1908: Order 41 Rule 31
- Constitution of India: Article 227
