Case Note & Summary
The dispute pertains to a suit for specific performance of an agreement to sell dated 18-04-2005 concerning agricultural land bearing Khasara No.40, PH No.73, mouza Zari, District Nagpur, admeasuring 2.43 hectares. The appellants (plaintiffs) claimed that the respondents (defendants) agreed to sell the land for a total consideration of Rs. 8,50,000, out of which Rs. 1,00,000 was paid as earnest money. The appellants alleged that they were ready and willing to perform their part but the respondents failed to execute the sale deed. The respondents denied the agreement and contended that the suit was barred by limitation and that the appellants were not ready and willing. The trial court dismissed the suit, holding that the appellants failed to prove readiness and willingness and that the agreement was not proved. The appellants filed an appeal against order under Order XLIII Rule 1 of CPC. The High Court examined the maintainability of the appeal and held that an appeal against order is not maintainable against a decree, but since the appeal was filed within the period of limitation for a first appeal, it could be treated as a first appeal. On merits, the court found that the trial court's findings were concurrent and not perverse. The appellants did not deposit the balance consideration or prove financial capacity. The court also noted that the appellants failed to examine themselves or produce evidence of readiness. The appeal was dismissed with costs.
Headnote
A) Specific Relief Act, 1963 - Section 16(c) - Readiness and Willingness - The plaintiff must prove continuous readiness and willingness to perform his part of the contract from the date of agreement till the date of decree - Held that failure to deposit balance consideration or to prove financial capacity disentitles the plaintiff to specific performance (Paras 10-15). B) Civil Procedure Code, 1908 - Order XLIII Rule 1 - Appeal against Order - An appeal lies only against orders enumerated in Order XLIII Rule 1, not against a decree dismissing the suit - Held that the appeal against order is not maintainable against a decree, but the court may treat it as a first appeal if filed within time (Paras 5-6). C) Limitation Act, 1963 - Article 54 - Suit for Specific Performance - Limitation of three years from the date fixed for performance or from notice of refusal - Held that the suit filed on 20-06-2008 was within limitation as the agreement was of 18-04-2005 and no date was fixed for performance (Paras 7-9). D) Evidence - Concurrent Findings of Fact - Appellate court will not interfere with concurrent findings of fact unless perverse or based on no evidence - Held that the trial court's findings on readiness and willingness and payment of consideration are findings of fact not shown to be perverse (Paras 16-18).
Issue of Consideration
Whether the appellants are entitled to specific performance of the agreement to sell dated 18-04-2005 and whether the appeal against order under Order XLIII Rule 1 of CPC is maintainable against a decree dismissing the suit?
Final Decision
The appeal is dismissed with costs. The judgment and decree dated 27-11-2018 passed by the trial court is confirmed.
Law Points
- Specific performance
- Readiness and willingness
- Section 16(c) Specific Relief Act
- 1963
- Concurrent findings of fact
- Interference in appeal against order
- Limitation
- Agreement to sell
- Payment of consideration
- Possession
