Case Note & Summary
The petitioners, who were the original defendants in a suit for specific performance of an agreement to sell, challenged the concurrent findings of the trial court and the first appellate court decreeing the suit. The plaintiff-respondent No.1 claimed that the defendants had agreed to sell certain agricultural land to him for a total consideration of Rs. 1,50,000/-, out of which Rs. 25,000/- was paid as earnest money. The defendants denied the execution of the agreement and contended that the plaintiff was not ready and willing to perform the contract. The trial court decreed the suit, and the first appellate court confirmed the decree. The defendants filed a writ petition under Article 227 of the Constitution. The High Court examined the evidence and found that the plaintiff had not examined any attesting witness to prove the execution of the agreement, as required under Section 68 of the Indian Evidence Act, 1872. The evidence of the scribe and other witnesses was not sufficient to prove the execution. Further, the plaintiff failed to adduce any evidence to show that he had the financial capacity to pay the balance consideration, and thus the requirement of Section 16(c) of the Specific Relief Act, 1963 regarding readiness and willingness was not satisfied. The High Court held that the concurrent findings of the courts below were not perverse and did not warrant interference under Article 227. The writ petition was dismissed with no order as to costs.
Headnote
A) Specific Relief Act, 1963 - Section 16(c) - Readiness and Willingness - The plaintiff must plead and prove continuous readiness and willingness to perform his part of the contract. In the present case, the plaintiff failed to adduce any evidence to show that he had the financial capacity to pay the balance consideration, and the courts below rightly held that the plaintiff was not ready and willing to perform the contract. (Paras 6-8) B) Indian Evidence Act, 1872 - Section 68 - Proof of Execution of Document Required by Law to be Attested - An attesting witness must be called to prove the execution of a mortgage deed or an agreement to sell if it is attested. In this case, the plaintiff did not examine any attesting witness, and the evidence of the scribe and other witnesses was not sufficient to prove the execution of the agreement. The courts below correctly held that the execution of the agreement was not proved. (Paras 4-5) C) Constitution of India - Article 227 - Superintendence of High Courts over subordinate courts - The High Court in its supervisory jurisdiction does not act as a court of appeal and cannot re-appreciate evidence to reverse concurrent findings of fact unless the findings are perverse or based on no evidence. The petitioners failed to demonstrate any such perversity, and hence the writ petition was dismissed. (Paras 9-10)
Issue of Consideration
Whether the concurrent findings of fact recorded by the courts below in a suit for specific performance of an agreement to sell are perverse or based on no evidence, warranting interference under Article 227 of the Constitution.
Final Decision
The High Court dismissed the writ petition with no order as to costs, upholding the concurrent findings of the courts below decreeing the suit for specific performance.
Law Points
- Specific performance
- burden of proof
- attesting witness
- Section 68 Evidence Act
- Section 16(c) Specific Relief Act
- readiness and willingness
- concurrent findings
- writ jurisdiction
