Case Note & Summary
The appellant, Subhadrabai Thakre, filed a suit for specific performance of an agreement of sale dated 28.3.2002, by which she agreed to purchase agricultural land from the respondents for Rs.1,91,500/-. She paid Rs.60,000/- as earnest money and claimed that possession was handed over to her. The balance consideration was to be paid at the time of execution of the sale deed, which was to be completed by 28.2.2005. The plaintiff alleged that the defendants avoided executing the sale deed despite her readiness and willingness. The trial court dismissed the suit, holding that the plaintiff failed to prove readiness and willingness and that the agreement was not proved. The first appellate court reversed the decree and remanded the matter back to the trial court for fresh decision, holding that the trial court had not properly considered the evidence. The plaintiff appealed against the remand order. The High Court allowed the appeal, setting aside the remand order and restoring the trial court's decree of dismissal. The court held that the first appellate court erred in remanding the matter under Order 41 Rule 23 CPC, as the trial court had decided the suit on merits after full trial, not on a preliminary point. The court further held that the plaintiff failed to prove her readiness and willingness to perform the contract, as she did not produce any evidence of having sufficient funds or having taken steps to arrange the balance consideration. The court also noted that the plaintiff's claim of possession was not supported by any independent evidence. The High Court concluded that the first appellate court's order was unsustainable and restored the trial court's judgment.
Headnote
A) Civil Procedure - Remand - Order 41 Rule 23 CPC - First Appellate Court's Power - The first appellate court remanded the suit for fresh decision without considering that the trial court had already decided the suit on merits after full trial. Held that remand under Order 41 Rule 23 is permissible only when the trial court has disposed of the suit on a preliminary point without recording evidence, not when the suit is decided after full trial. (Paras 1-10) B) Specific Performance - Readiness and Willingness - Section 16(c) Specific Relief Act, 1963 - Plaintiff failed to prove readiness and willingness to perform her part of the contract as she did not produce any evidence of having sufficient funds or having taken steps to arrange the balance consideration. Held that mere filing of suit does not prove readiness and willingness; plaintiff must adduce positive evidence. (Paras 11-15) C) Evidence - Burden of Proof - Agreement of Sale - Possession - Plaintiff claimed possession was handed over at the time of agreement, but no independent witness or documentary evidence was produced to support this claim. Held that the burden to prove possession lies on the plaintiff, and failure to discharge that burden results in adverse inference. (Paras 16-18)
Issue of Consideration
Whether the first appellate court was justified in remanding the matter back to the trial court under Order 41 Rule 23 of the Code of Civil Procedure, 1908 without properly considering the evidence on record and the plaintiff's failure to prove readiness and willingness to perform the contract.
Final Decision
Appeal allowed. Impugned judgment and order dated 2.9.2022 passed in Regular Civil Appeal No.260/2017 is set aside. The judgment and decree dated 30.6.2017 passed by the trial court in Regular Civil Suit No. 100/2012 is restored. No order as to costs.
Law Points
- Specific performance
- Readiness and willingness
- Remand
- Order 41 Rule 23 CPC
- Agreement of sale
- Earnest money
- Possession
