Case Note & Summary
The appellant, original defendant, challenged the decree of specific performance passed by the trial court in favour of the respondents/plaintiffs. The plaintiffs had sued for specific performance of an agreement to sell dated 01.08.2005 for a property in Pune. The trial court decreed the suit, directing the defendant to execute the sale deed. The defendant appealed. The High Court noted that the plaintiffs did not produce the original agreement to sell; only a photocopy was exhibited. The attesting witness to the agreement was not examined. The court held that under Section 114(g) of the Indian Evidence Act, 1872, an adverse inference must be drawn against the plaintiffs for withholding the original document and not examining the attesting witness. The court also found that the plaintiffs failed to prove their readiness and willingness to perform the contract as required under Section 16(c) of the Specific Relief Act, 1963. The appeal was allowed, the trial court's decree was set aside, and the suit was dismissed.
Headnote
A) Specific Relief Act, 1963 - Section 16(c) - Readiness and Willingness - Plaintiff must plead and prove continuous readiness and willingness to perform his part of the contract - In the absence of original agreement and attesting witness, the court may draw adverse inference against the plaintiff (Paras 10-15).
B) Indian Evidence Act, 1872 - Section 114(g) - Adverse Inference - Non-production of original document and non-examination of attesting witness leads to presumption that evidence would be unfavorable to the party withholding it - Held that the trial court erred in decreeing suit without drawing adverse inference (Paras 12-14).
C) Specific Performance - Agreement to Sell - Proof of Execution - Original agreement must be produced or its non-production explained - Attesting witness must be examined if available - Failure to do so weakens the plaintiff's case (Paras 8-11).
Issue of Consideration
Whether the plaintiff is entitled to specific performance of an agreement to sell when the original agreement is not produced and the attesting witness is not examined, and whether an adverse inference can be drawn under Section 114(g) of the Indian Evidence Act, 1872.
Final Decision
The appeal is allowed. The judgment and decree of the trial court are set aside. The suit for specific performance is dismissed.
Law Points
- Specific performance
- adverse inference
- non-production of original document
- attesting witness
- Section 16(c) Specific Relief Act
- 1963
- readiness and willingness
- Section 114(g) Indian Evidence Act
- 1872
Case Details
2013 LawText (BOM) (06) 78
First Appeal No. 1315 of 2012
Mr. Rajiv Patil - Sr. Advocate i/b. Mr. Onkar Warange for Appellant, Mr. Ashok Joshi for Respondent Nos. 1 and 2
Shri Ramchandra Algu Vishwakarma
Shri Shrikant Vasantrao Tile and Mrs. Beena Shrikant Tile
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Civil appeal against decree of specific performance of an agreement to sell immovable property.
Remedy Sought
Appellant (original defendant) sought setting aside of the trial court's decree directing him to execute a sale deed in favour of the respondents (original plaintiffs).
Filing Reason
The respondents/plaintiffs filed a suit for specific performance of an agreement to sell dated 01.08.2005, claiming that the appellant/defendant agreed to sell a property to them. The appellant denied the agreement and challenged the decree.
Previous Decisions
The trial court decreed the suit in favour of the plaintiffs, directing the defendant to execute the sale deed. The defendant appealed against that decree.
Issues
Whether the plaintiffs proved the execution of the agreement to sell when the original document was not produced and the attesting witness was not examined?
Whether an adverse inference under Section 114(g) of the Indian Evidence Act, 1872 should be drawn against the plaintiffs for non-production of the original agreement?
Whether the plaintiffs proved their readiness and willingness to perform the contract as required under Section 16(c) of the Specific Relief Act, 1963?
Submissions/Arguments
Appellant argued that the plaintiffs failed to produce the original agreement to sell and did not examine the attesting witness, and therefore an adverse inference should be drawn against them.
Respondents argued that the photocopy of the agreement was sufficient and that they had proved their case.
Ratio Decidendi
In a suit for specific performance, the plaintiff must produce the original agreement to sell or explain its non-production, and must examine the attesting witness if available. Failure to do so entitles the court to draw an adverse inference under Section 114(g) of the Indian Evidence Act, 1872 that the evidence would be unfavorable to the plaintiff. Additionally, the plaintiff must plead and prove continuous readiness and willingness to perform the contract as mandated by Section 16(c) of the Specific Relief Act, 1963.
Judgment Excerpts
In view of the non-production of the original agreement and non-examination of the attesting witness, an adverse inference under Section 114(g) of the Indian Evidence Act, 1872 is drawn against the plaintiffs.
The plaintiffs have failed to prove their readiness and willingness to perform the contract as required under Section 16(c) of the Specific Relief Act, 1963.
Procedural History
The respondents/plaintiffs filed a suit for specific performance in the trial court. The trial court decreed the suit. The appellant/defendant filed First Appeal No. 1315 of 2012 before the High Court of Judicature at Bombay. The High Court allowed the appeal and dismissed the suit.
Acts & Sections
- Specific Relief Act, 1963: Section 16(c)
- Indian Evidence Act, 1872: Section 114(g)
