Ramchandra Kulkarni (dead) by L.R.’s. Vs. Dinkar
EmailAppeal: Civil Appeal No. 2100 of 1985.
(From the Judgment and Order dated 6.4.84 of the Bombay High Court in Second Appeal No.64 of 1979)
(From the Judgment and Order dated 6.4.84 of the Bombay High Court in Second Appeal No.64 of 1979)
Petitioner: Ramchandra Kulkarni (dead) by L.R.’s.
Respondent: Dinkar
Apeal: Civil Appeal No. 2100 of 1985.
(From the Judgment and Order dated 6.4.84 of the Bombay High Court in Second Appeal No.64 of 1979)
(From the Judgment and Order dated 6.4.84 of the Bombay High Court in Second Appeal No.64 of 1979)
Judges: N.M. KASLIWAL & N. VENKATACHALA, JJ.
Date of Judgment: Feb 11, 1993
Appearances:
Mr. E.X. Joseph and Mr. D.N. Puri, Advocates (for Mr. M.M. Kashyap) Advocates for the Appellant.
Mr. S.V. Deshpande, Advocate for the Respondent.
Head Note:
PRACTICE AND PROCEDURE
Plea as to repayment of amount to plaintiff not raised by defendant in his written statement – High Court in second appeal held not justified to make non-disclosure by plaintiff of repayment as a ground to set aside the decree of specific performance – Appeal allowed.
JUDGEMENT:
VENKATACHALA, J. :
1. This Civil Appeal by Special Leave, is directed against the Judgment and Order dated April 6, 1984 of the High Court of Judicature at Bombay, by which a decree for specific performance of an agreement to sell a property made by the Court of first instance and affirmed by a decree of the first appellate Court is set aside and the case is remitted to the Court of first instance to consider the question of grant of alternate relief of refund of consideration amount to the plaintiff by the defendant. Appellant herein – Ramchandra Kulkarni (since deceased represented by his L.R.’s), as plaintiff, filed a suit against the defendant, who is respondent herein, for specific performance of an agreement to sell dated July 28, 1972, by which the defendant had agreed to sell to the plaintiff half portion of a house in his occupation as a tenant for a consideration of Rs. 10,000/-. The plaintiff having filed that suit against the defendant in the Court of the Civil Judge, Junior Division, Nagpur obtained a decree in his favour on November 6, 1974. That decree was appealed against by the defendant in the Court of the District Judge at Nagpur, but that appeal was dismissed on April 20, 1978, affirming the decree of the Court of first instance except for setting aside the order for payment of compensatory cost of Rs. 500/-. Feeling aggrieved by the said decrees of the Court of first instance and the First Appellate Court, the defendant filed a Second Appeal in the High Court of Judicature at Bombay. That Second Appeal was admitted on July 30, 1979 to examine a limited point whether the plaintiff was entitled to specific performance of the suit agreement to sell in the circumstances of the case. During the pendency of that Second Appeal, the defendant produced a receipt dated November 3, 1971 purported to have been issued by the plaintiff acknowledging the repayment of Rs.270/-, said to have been borrowed by the defendant from the plaintiff. The learned single Judge of the High Court who heard the Second Appeal, relying on the contents of that receipt concluded that the plaintiff’s non-disclosure of the said repayment of Rs.270/- to him by the defendant in the Court of first instance amounted to wrong conduct of the plaintiff and that conduct disentitled him to get the equitable relief of decree of specific performance of the suit agreement to sell from the Court of first instance and hence the Appellate Court should not have affirmed the decree of the Court of first instance. Consequently, by his Judgment and Order dated April 6, 1984, the learned single Judge of the High Court set aside the decrees of the courts below and remitted the case to the Court of first instance for considering the question of granting to the plaintiff alternative relief of refund of the consideration paid by him to the defendant under the suit agreement to sell. It is that Judgment and Order of the High Court which has been appealed against in this Civil Appeal by Special Leave filed by the plaintiff and which requires our examination of its sustainability.
2. We have seen the pleadings in the suit, the evidence adduced in the suit and also the judgments of the courts below. The learned single Judge of the High Court has said in his Judgment, that he had to hold that the plaintiff was not ready and willing to perform his part of the obligation under the agreement to sell in the matter of payment of the entire consideration thereof because, his conduct of non-disclosure of repayment to him by the defendant of the borrowed sum of Rs.270/- amounted to false plea of adjustment and hence the plaintiff was not entitled to equitable relief of specific performance. The reason so given by the learned Judge of the High Court made us to enquire form the learned counsel for the defendant-respondent herein whether the defendant in his written statement in the suit had raised any plea as regards repayment of loan of Rs.270/- by him to the plaintiff and the plaintiff though had acknowledged its receipt, having disputed such repayment. The learned counsel for the defendant had to admit and very rightly that such a plea was not put forth by the defendant in his written statement. When the defendant himself has not taken such a plea in his written statement, there was no justification for the learned single Judge of the High Court deciding the Second Appeal, to make non-disclosure by the plaintiff of repayment of Rs.270/- to him by the defendant, as a ground to set aside the decree of specific performance of an agreement to sell made in favour of the plaintiff. In any case, the sale agreement is dated 28th July, 1972 while the receipt of payment of Rs.270/- is of an earlier date i.e., 3.11.1971 and it can have no relevance to the question of readiness and willingness to perform the contract by the plaintiff. In the said view of the matter, we consider it just and proper to interfere with the Judgment and Order of the learned single Judge of the High Court made in the Second Appeal and set aside the same.
3. In the result, we allow this Civil Appeal, set aside the Judgment and Order of the learned single Judge of the High Court under appeal and restore the Judgment and decree of the trial court as affirmed by the First Appellate Courts. However, giving due regard to interim order made by this Court on the liability of the plaintiff to pay rents of the premises concerned in the suit agreement to sell, to the defendant during the pendency of this Civil Appeal, we direct the Legal Representatives of the deceased appellant to pay Rs.15,000/- towards rents of the premises to the respondent-defendant less the amount of rents, if any, paid or deposited as a condition precedent for seeking enforcement of the decree of specific performance granted in favour of the plaintiff-appellant, through Court. No costs.
1. This Civil Appeal by Special Leave, is directed against the Judgment and Order dated April 6, 1984 of the High Court of Judicature at Bombay, by which a decree for specific performance of an agreement to sell a property made by the Court of first instance and affirmed by a decree of the first appellate Court is set aside and the case is remitted to the Court of first instance to consider the question of grant of alternate relief of refund of consideration amount to the plaintiff by the defendant. Appellant herein – Ramchandra Kulkarni (since deceased represented by his L.R.’s), as plaintiff, filed a suit against the defendant, who is respondent herein, for specific performance of an agreement to sell dated July 28, 1972, by which the defendant had agreed to sell to the plaintiff half portion of a house in his occupation as a tenant for a consideration of Rs. 10,000/-. The plaintiff having filed that suit against the defendant in the Court of the Civil Judge, Junior Division, Nagpur obtained a decree in his favour on November 6, 1974. That decree was appealed against by the defendant in the Court of the District Judge at Nagpur, but that appeal was dismissed on April 20, 1978, affirming the decree of the Court of first instance except for setting aside the order for payment of compensatory cost of Rs. 500/-. Feeling aggrieved by the said decrees of the Court of first instance and the First Appellate Court, the defendant filed a Second Appeal in the High Court of Judicature at Bombay. That Second Appeal was admitted on July 30, 1979 to examine a limited point whether the plaintiff was entitled to specific performance of the suit agreement to sell in the circumstances of the case. During the pendency of that Second Appeal, the defendant produced a receipt dated November 3, 1971 purported to have been issued by the plaintiff acknowledging the repayment of Rs.270/-, said to have been borrowed by the defendant from the plaintiff. The learned single Judge of the High Court who heard the Second Appeal, relying on the contents of that receipt concluded that the plaintiff’s non-disclosure of the said repayment of Rs.270/- to him by the defendant in the Court of first instance amounted to wrong conduct of the plaintiff and that conduct disentitled him to get the equitable relief of decree of specific performance of the suit agreement to sell from the Court of first instance and hence the Appellate Court should not have affirmed the decree of the Court of first instance. Consequently, by his Judgment and Order dated April 6, 1984, the learned single Judge of the High Court set aside the decrees of the courts below and remitted the case to the Court of first instance for considering the question of granting to the plaintiff alternative relief of refund of the consideration paid by him to the defendant under the suit agreement to sell. It is that Judgment and Order of the High Court which has been appealed against in this Civil Appeal by Special Leave filed by the plaintiff and which requires our examination of its sustainability.
2. We have seen the pleadings in the suit, the evidence adduced in the suit and also the judgments of the courts below. The learned single Judge of the High Court has said in his Judgment, that he had to hold that the plaintiff was not ready and willing to perform his part of the obligation under the agreement to sell in the matter of payment of the entire consideration thereof because, his conduct of non-disclosure of repayment to him by the defendant of the borrowed sum of Rs.270/- amounted to false plea of adjustment and hence the plaintiff was not entitled to equitable relief of specific performance. The reason so given by the learned Judge of the High Court made us to enquire form the learned counsel for the defendant-respondent herein whether the defendant in his written statement in the suit had raised any plea as regards repayment of loan of Rs.270/- by him to the plaintiff and the plaintiff though had acknowledged its receipt, having disputed such repayment. The learned counsel for the defendant had to admit and very rightly that such a plea was not put forth by the defendant in his written statement. When the defendant himself has not taken such a plea in his written statement, there was no justification for the learned single Judge of the High Court deciding the Second Appeal, to make non-disclosure by the plaintiff of repayment of Rs.270/- to him by the defendant, as a ground to set aside the decree of specific performance of an agreement to sell made in favour of the plaintiff. In any case, the sale agreement is dated 28th July, 1972 while the receipt of payment of Rs.270/- is of an earlier date i.e., 3.11.1971 and it can have no relevance to the question of readiness and willingness to perform the contract by the plaintiff. In the said view of the matter, we consider it just and proper to interfere with the Judgment and Order of the learned single Judge of the High Court made in the Second Appeal and set aside the same.
3. In the result, we allow this Civil Appeal, set aside the Judgment and Order of the learned single Judge of the High Court under appeal and restore the Judgment and decree of the trial court as affirmed by the First Appellate Courts. However, giving due regard to interim order made by this Court on the liability of the plaintiff to pay rents of the premises concerned in the suit agreement to sell, to the defendant during the pendency of this Civil Appeal, we direct the Legal Representatives of the deceased appellant to pay Rs.15,000/- towards rents of the premises to the respondent-defendant less the amount of rents, if any, paid or deposited as a condition precedent for seeking enforcement of the decree of specific performance granted in favour of the plaintiff-appellant, through Court. No costs.
