Case Note & Summary
The original plaintiff, Vijay Laxmipati Dasari (since deceased, represented by his legal heirs), filed a suit for specific performance of an agreement for sale dated 1st February 1983 against the respondents, who were the owners of the suit property. The plaintiff alleged that the defendants agreed to sell the property for Rs. 1,10,000 and paid an advance of Rs. 10,000. The defendants denied the agreement and contended that the plaintiff was not ready and willing to perform. The trial court dismissed the suit, holding that the agreement was not proved and the plaintiff failed to show readiness and willingness. The first appellate court confirmed the dismissal. In the second appeal under Section 100 CPC, the High Court held that no substantial question of law arose as the findings were concurrent and based on evidence. The court noted that the plaintiff did not deposit the balance consideration, did not examine the attesting witnesses properly, and failed to prove financial capacity. The appeal was dismissed with 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 from the date of agreement till the decree. Failure to deposit balance consideration or show financial capacity negates readiness. (Paras 10-15)
B) Code of Civil Procedure, 1908 - Section 100 - Second Appeal - Interference with Concurrent Findings - The High Court cannot reappreciate evidence in a second appeal unless the findings are perverse or based on no evidence. Concurrent findings of fact that the agreement was not proved and plaintiff was not ready and willing are binding. (Paras 16-20)
C) Evidence Act, 1872 - Section 68 - Proof of Execution of Document - Where attesting witnesses are not examined or their evidence is unreliable, the execution of the document is not proved. The trial court's finding that the agreement was not duly executed was upheld. (Paras 8-9)
Issue of Consideration
Whether the concurrent findings of fact by the trial court and first appellate court, holding that the plaintiff was not ready and willing to perform his part of the contract and that the agreement for sale was not proved, could be interfered with in a second appeal under Section 100 of the Code of Civil Procedure, 1908.
Final Decision
The second appeal is dismissed with costs. The judgment and decree of the first appellate court dated 17th March 1993 confirming the trial court's dismissal of the suit are upheld.
Law Points
- Specific performance
- Readiness and willingness
- Section 16(c) Specific Relief Act
- 1963
- Concurrent findings of fact
- Second appeal under Section 100 CPC
- Substantial question of law
Case Details
2016 LawText (BOM) (09) 93
Second Appeal No. 383 of 1993
Mr. V.S. Gokhale for the Appellants, Mr. T.D. Deshmukh for Respondent nos. 1, 2A, 2B, 2D, 2E, 3A, 3B, 3D, 3E and 3F
Vijay Laxmipati Dasari (since deceased) through his legal heirs & representatives: Smt. Vanita Vijay Dasari, Pradeep Vijay Dasari, Sandeep Vijay Dasari, Anup Vijay Dasari
Smt. Laxmibai Ramayya Bolabattin, Laxminarayan Ramyya Bolabattin (since deceased) through his legal heirs & representatives, Shankar Ramayya Bolabattin (since deceased) through his heirs and legal representatives
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Nature of Litigation
Second appeal against dismissal of suit for specific performance of agreement for sale.
Remedy Sought
Appellants (legal heirs of original plaintiff) sought to set aside the concurrent judgments dismissing the suit and to obtain a decree for specific performance or refund of advance.
Filing Reason
The original plaintiff claimed that the defendants agreed to sell property but failed to execute the sale deed despite receiving advance payment.
Previous Decisions
Trial court dismissed Special Civil Suit No.106 of 1983 on 30th September 1989; first appellate court dismissed Civil Appeal No.98 of 1990 on 17th March 1993.
Issues
Whether the plaintiff proved the execution of the agreement for sale dated 1st February 1983?
Whether the plaintiff was ready and willing to perform his part of the contract?
Whether the concurrent findings of fact can be interfered with in a second appeal under Section 100 CPC?
Submissions/Arguments
Appellants argued that the agreement was duly executed and the plaintiff was always ready and willing to perform, and that the courts below erred in dismissing the suit.
Respondents contended that the agreement was not proved, the plaintiff failed to show readiness and willingness, and the concurrent findings should not be disturbed.
Ratio Decidendi
In a second appeal under Section 100 CPC, the High Court cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence. The plaintiff in a suit for specific performance must plead and prove continuous readiness and willingness to perform the contract, including financial capacity to pay the balance consideration. Failure to do so results in dismissal of the suit.
Judgment Excerpts
By this second appeal filed under section 100 of the Code of Civil Procedure, 1908, the appellants have impugned the order and judgment dated 17th March, 1993 passed by the Additional District Judge, Solapur dismissing the Civil Appeal No.98 of 1990.
The trial court held that the plaintiff failed to prove the agreement and was not ready and willing to perform.
The concurrent findings of fact cannot be interfered with in a second appeal unless perverse.
Procedural History
Original plaintiff filed Special Civil Suit No.106 of 1983 for specific performance. Trial court dismissed suit on 30.09.1989. Plaintiff filed Civil Appeal No.98 of 1990 which was dismissed on 17.03.1993. Thereafter, the legal heirs of the plaintiff filed the present Second Appeal No.383 of 1993 under Section 100 CPC.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
- Specific Relief Act, 1963: Section 16(c)
- Indian Evidence Act, 1872: Section 68
