Deb Narayan Parihasta vs Uday Shankar Jha And Ors

This appeal under Section 100 of the Code of Civil Procedure, 1908, has been filed challenging the judgment dated 31st January, 2007 and decree dated 9.2.2007 passed by the District Judge, Deoghar in Title Appeal No. 42/2006, by which, the appeal filed by the appellant has been dismissed and the judgment dated 25.8.2006 and the decree dated 4.9.2006 passed by the learned Sub-Judge-IV, Deoghar in Title Suit No. 7/2000 was confirmed.

The plaintiff is the appellant before the court below. The plaintiff filed a suit for decree claiming specific performance of contract directing defendant No. 1 to execute the registered sale deed in favour of the plaintiff in respect of property of schedule 'A' after receiving the balance amount of Rs.1,65,000/-. An alternative prayer was also made that the earnest money of Rs.32,000/- be refunded to the plaintiff along with 12% interest. Another prayer was made to restrain the defendants from executing the sale deed in respect of the property in favour of any other person.

The plaintiff claimed that defendant Nos. 1 and 2 are sons of defendant No. 3. The original property was joint but later on, they separated and the land in Schedule 'A' property fell in share of defendant No. 1. The plaintiff claimed that in the month of March, 1993, defendant No.1 took advance of Rs.500/- as earnest money for selling of schedule 'A1' property and a registered agreement was entered into on 30.3.1994. Further the earnest money of Rs.20,500/- was paid. The price which was settled was Rs.1,80,000/-. It was agreed that the sale deed would be executed by 31.8.1994 after receiving the balance consideration amount. It is the case of the plaintiff that he was put in possession over the property in question and he got the said land enclosed with brick wall. Further another agreement was made for selling of land relating to schedule 'A2' property with plaintiff by defendant after accepting Rs.5,000/- as earnest money and the sale value of the second property would be Rs.17,000/-. Both the agreements were amalgamated and the total price was fixed Rs.1,97,500/-, out of which, Rs.26,000/- was paid till 22.8.1994. Further a sum of Rs.6,000/- was received by defendant on 8.10.1994 as he was in urgent need of money to maintain his family. Defendant No. 1 filed a suit against defendants Nos. 2 and 3 in which the plaintiff has got himself impleaded and the suit was withdrawn at the instance of defendant Nos. 2 and 3 in the year 1997. It is also pleaded that total Rs.32,000/- was paid to the defendant by the plaintiff, but the defendant did not execute the sale deed, thus the suit was filed.

The defendants-respondents appeared and contended that the suit property is joint family property being ancestral and was never partitioned. It is also submitted that the plaintiff had duped defendant No. 1 and got his signature on certain papers. It was also contended that the plaintiff never approached the court with clean hands and the suit is barred by limitation. The possession of the plaintiff was also denied.

On the pleadings of the parties, the trial court framed 07 issues, out of which, Issue Nos. (iv) and (v) are important, which are as follows:-

(iv) Whether the plaintiff is entitled to get a decree for specific performance of contract directing defendant No. 1 to execute a sale deed in favour of plaintiff in respect to suit property by giving rest consideration money?

(v) Whether the plaintiff is ready and willing to perform his part contract?

I have heard the counsel for the appellant and I have gone through the record.

To prove the case, the plaintiff examined 05 witnesses and also exhibited several documents. The defendant also examined 07 witnesses and exhibited several documents. The trial court decided Issue Nos. (v) and (vi) in favour of the plaintiff. The court concluded that D.W. 1 has not denied the receiving of money and nothing has been brought on record to suggest that he was of unsound mind and the agreement was entered by practicing fraud. So far as issue No. (iv) is concerned, the trial court decided the said issue holding that since the property is joint, a coparcener cannot alienate his undivided interest without consent of other coparcener(s). The trial court thereafter decreed the suit in part with a direction to refund the earnest money Rs.32,000/- with interest @ 6% per annum within three months.

The plaintiff, being aggrieved by the said judgment, preferred an appeal. The appellate, court after scrutinizing the evidence on record as well as the judgment and also after going through the money receipt and the agreement as well as specific fact that the defendant did not appeared for cross-examination, has held that the time was not essence of the contract and the agreement has not become invalid, thus the suit was not barred.

So far as issues Nos. (iv) and (v) are concerned, it has been held that since the agreement being not enforceable, it does not render any legal right to the appellant to get an equitable relief. The first appellate court concluded on the evidence that the plaintiff is not entitled for a decree for specific performance of contract as there was no proof that the appellant was ready and willing to perform his part of the contract. The first appellate court upheld the order of the trial court to the extent that the defendants should refund the earnest money, as held by the trial court.

After going through the judgment of both the courts below, I find that both the courts below have held that the defendants are liable to refund the earnest money with 6% interest. The first appellate court has held that the plaintiff has failed to prove that he is ready and willing to perform his part of contract. Whether a person is ready and willing to perform his part of contract is purely a question of fact. This fact has been set at rest by the trial court against the plaintiff. Both the courts below have granted alternative relief to the plaintiff i.e. to refund of his earnest money with interest. The jurisdiction to decree the suit for specific performance of contract is discretionary in nature and the court is not bound to grant such relief merely because it is lawful to do so. Specific performance is not an absolute right but the same is discretionary jurisdiction of the court and has to see the facts of each and every case.

In this case, I find that the court below has arrived at finding of fact that the plaintiff has failed to prove his readiness and willingness to perform his part of contract, then the logic was correct that both the courts below have given the alternative relief i.e. refund of earnest money of Rs.32,000/-with 6% interest per annum and this refund of money was also for an alternative prayer of the plaintiff, which is apparent from the judgment and decree of the trial court. Therefore, no fault can be found in the relief, which has been granted by the courts below to the plaintiff and the same is also not illegal.

Thus, I find no illegally in the judgment and decree passed by both the courts below and there is no substantial question of law which has been answered in favour of the plaintiff. Accordingly, the appeal is dismissed upholding the judgment dated 31st January, 2007 and decree dated 9.2.2007 passed by the District Judge, Deoghar in Title Appeal No. 42/2006.