Case Note & Summary
The present second appeal was filed by the original defendant, Madan s/o Mohan Gupta, challenging the concurrent judgments and decrees passed by the courts below in a suit for specific performance of contract. The respondent, Ramavati Ramesh Chauvan, filed Regular Civil Suit No. 38 of 2007 before the Civil Judge Junior Division, Dondaicha, seeking specific performance of an agreement to sell dated 01.06.2006 executed by the defendant in her favor for a consideration of Rs. 1,50,000/-. The plaintiff alleged that the defendant agreed to sell his house property and received an earnest amount of Rs. 1,20,000/- on the date of agreement, with the balance to be paid at the time of registration. The plaintiff claimed that she was ready and willing to perform her part of the contract, but the defendant failed to execute the sale deed. The defendant denied the execution of the agreement and contended that the plaintiff was not ready and willing to perform. The trial court decreed the suit in favor of the plaintiff, directing the defendant to execute the sale deed upon receipt of the balance consideration. The first appellate court confirmed the decree. The defendant then filed the present second appeal under Section 100 of the Code of Civil Procedure, 1908. The High Court framed a substantial question of law regarding the interference with concurrent findings of fact. The court examined the evidence, including the testimony of the attesting witness and the plaintiff's witnesses, and found that the plaintiff had proved the execution of the agreement and her readiness and willingness. The defendant failed to lead any evidence to rebut the presumption. The court held that the concurrent findings were based on proper appreciation of evidence and were not perverse. Consequently, the appeal was dismissed with no order as to costs.
Headnote
A) Specific Relief Act, 1963 - Section 16(c) - Burden of Proof - Readiness and Willingness - In a suit for specific performance, the plaintiff must plead and prove readiness and willingness to perform his part of the contract. The defendant, who denies the agreement, must prove that the plaintiff was not ready and willing. The court held that the plaintiff had discharged the burden by examining the attesting witness and proving part performance, while the defendant failed to lead any evidence to rebut the presumption. (Paras 10-15) B) Civil Procedure Code, 1908 - Section 100 - Second Appeal - Interference with Concurrent Findings - The High Court in second appeal cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence. The court found that the findings of the lower courts were based on proper appreciation of evidence and did not raise any substantial question of law. (Paras 16-18) C) Evidence Act, 1872 - Section 68 - Proof of Execution of Document - Attesting Witness - The execution of an agreement to sell can be proved by examining one attesting witness as required under Section 68 of the Evidence Act. The court held that the plaintiff had duly proved the execution by examining the attesting witness, and the defendant's denial was not supported by any evidence. (Paras 8-10)
Issue of Consideration
Whether the concurrent findings of fact regarding the execution of the agreement to sell and the plaintiff's readiness and willingness can be interfered with in second appeal under Section 100 of CPC?
Final Decision
Second Appeal dismissed. Decree for specific performance confirmed. No order as to costs.
Law Points
- Specific performance
- concurrent findings of fact
- substantial question of law
- Section 16(c) Specific Relief Act
- 1963
- burden of proof
- readiness and willingness
- attesting witness
- part performance
