Rajendran, Thirupathi, Solai Alagu and Subramaniam vs Suguna

Honourable Mr. Justice A. Selvam

This Review Application has been preferred against the Judgment and decree dated 20.02.2012 passed in SA(MD) No. 249 of 2010 by this

Court. The respondent herein as plaintiff has instituted Original Suit No. 58 of 2005 on the file of the District Munsif Court, Madurai for the relief

of specific performance, wherein the present review applicants have been shown as defendants 2 to 5. The trial Court has decreed the suit as

prayed for. Against the Judgment and decree passed by the trial Court, an Appeal has been preferred in A.S. No. 7 of 2007 on the file of the

Principal Sub Court, Madurai, wherein the Judgment and decree passed by the trial Court have been reversed. Against the Judgment and decree

passed by the first appellate Court, SA(MD) No. 249 of 2010 has been preferred on the file of this Court and this Court has allowed the same

and thereby set aside the Judgment and decree passed in Appeal Suit No. 7 of 2007 and restored the Judgment and decree passed in Original Suit

No. 58 of 2005. In order to review the Judgment and decree passed in SA(MD) No. 249 of 2010 the present Review Application has been filed.

It is averred in the plaint that the deceased first defendant is the absolute owner of the suit property and he agreed to sell the same in favour of

the plaintiff for a sum of Rs. 90,000/- and to that extent a sale agreement has come into existence on 18.03.1992. On the date of sale agreement,

the plaintiff has given a sum of Rs. 30,000/- to the deceased first defendant. In the said sale agreement dated 18.03.1992 it has been agreed to

execute a sale deed within a period of one year after receipt of the balance of sale consideration and thereafter on 22.04.1993 the deceased first

defendant has sent a letter stating his inability for not having executed a sale deed in favour of the plaintiff and he has also given one year time for

getting a sale deed and subsequently on 18.10.1993, the plaintiff has issued a legal notice to the deceased first defendant and even after receipt of

the same, he has not executed sale deed in favour of the plaintiff. Under the said circumstances, the present suit has been instituted.

In the written statement filed on the side of the deceased first defendant it is averred that both the plaintiff and deceased first defendant have

entered into the sale agreement dated 18.03.1992. Further it is agreed to the effect that on the date of sale agreement the deceased first defendant

has received a sum of Rs. 30,000/-. Further it is stated in the written statement that the plaintiff is not ready and willing to perform her part of the

contract and therefore she is not entitled to get discretionary relief of specific performance.

In SA(MD) No. 249 of 2010 the substantial question of law raised is as to whether the plaintiff is always ready and willing to perform her part

of contract and this Court after considering the available evidence on record has categorically found that the plaintiff has always been ready and

willing to perform her part of the contract from the suit sale agreement dated 18.03.1992. In fact this Court has considered various decisions

accited by either side.

The learned counsel appearing for the review applicants has emphatically contended that the suit sale agreement has come into existence on

18.03.1992 and the same has been marked as Ex. A1 and on the date of execution of Ex. A1 a sum of Rs. 30,000/- has been given by way of

advance. In Ex. A1 time has been fixed to the extent of one year and the same has become expired on 18.03.1993 and the deceased first

defendant is said to have written a letter on 22.04.1993 and the same has been marked as Ex. A2 and thereafter a legal notice has been issued on

18.10.1993 by the plaintiff and a copy of the same has been marked as Ex. A3 and another legal notice has been issued on 23.11.1995 and the

plaintiff has filed Original Suit No. 58 of 2005 very belatedly and therefore, it shows that she is not always ready and willing to perform her part of

the contract and the trial Court without considering the fact that the plaintiff is not ready and willing to perform her part of the contract has

erroneously decreed the suit. But the first appellate Court has rightly dismissed the same and this Court without considering the available evidence

on record has unnecessarily and also erroneously reversed the Judgment and decree passed by the first appellate Court and therefore, the

Judgment and decree passed in SA(MD) No. 249 of 2010 are liable to be reviewed.

The learned counsel appearing for the respondent has contended that the suit sale agreement has come into existence on 18.03.1992 and on the

date of execution of suit sale agreement the plaintiff has given a sum of Rs. 30,000/-. On 22.04.1993 the deceased first defendant has sent a letter

stating his inability for not executing a sale deed in favour of the plaintiff. Under the said circumstances he has been given one year time for getting a

sale deed and subsequently the plaintiff has issued a legal notice on 18.10.1993 to the deceased first defendant and thereby called upon him to

execute a sale deed. Since the deceased first defendant has not executed sale deed in favour of the plaintiff, Original Suit No. 58 of 2005 has been

instituted. The trial Court after considering all the documents filed on either side has rightly decreed the suit. But the first appellate Court has

erroneously reversed the Judgment and decree passed by the trial Court. This Court after considering the available evidence on record and also

after considering various decisions, has rightly reversed the Judgment and decree passed by the first appellate Court and further, the review

applicants have filed this Review Application only for the purpose of re-advancing the very same argument which has already been settled in

SA(MD) No. 249 of 2010 and therefore, the present Review Application is liable to be dismissed.

As narrated earlier, the suit sale agreement has come into existence on 18.03.1992. On the date of suit sale agreement the plaintiff has given a

sum of Rs. 30,000/- to the deceased first defendant. In the suit sale agreement one year period has been fixed. On 22.04.1993 the deceased first

defendant has written a letter whereby he expressed his inability to execute a sale deed in favour of the plaintiff and sought for one year time and

since the deceased first defendant has not executed a sale deed in favour of the plaintiff within the extended period, legal notices have been issued.

The only point that comes up for consideration in SA(MD) No. 249 of 2010 is as to whether the plaintiff has always been ready and willing to

perform her part of the contract. In fact in SA(MD) No. 249 of 2010 extensive argument has been advanced on either side with regard to the said

aspect. This Court after considering the evidence available on record has found that the plaintiff has always been ready and willing to perform her

part of the contract from the inception of suit sale agreement dated 18.03.1992. If really the plaintiff is not always ready and willing to perform her

part of the contract, definitely the deceased first defendant would not have written the letter dated 22.04.1993. In the letter dated 22.04.1993 the

deceased first defendant has expressed his inability in executing a sale deed in favour of the plaintiff and he sought for one year time. Therefore, it

goes without saying that the plaintiff has always been ready and willing to perform her part of the contract from the inception of suit sale agreement

dated 18.03.1992.

It is a settled principle of law that as per section 16(C) of the Specific Relief Act, 1963 the plaintiff must aver and prove that he has always been

ready and willing to perform his part of the contract. The said aspect is both legal as well as factual question. The Court can analyse as to whether

the plaintiff is ready and willing to perform her part of the contract. It has already been pointed out that the deceased first defendant himself has

written a letter dated 22.04.1993, wherein he expressed his inability and also sought for one year for executing a sale deed. Therefore, it is easily

discernible that there is no lapse on the part of the plaintiff to get a sale deed executed from the deceased first defendant and the plaintiff has

always been ready and willing to perform her part of the contract. In fact this aspect has been extensively discussed in SA(MD) No. 249 of 2010

and ultimately found that the plaintiff is always been ready and willing to perform her part of the contract. Under the said circumstances, she is

entitled to get the discretionary relief of specific performance.

Since in SA(MD) No. 249 of 2010 the aforesaid point has been extensively discussed after considering various decisions, it is needless to say

that the present Review Application has been filed only with a view to reargue the matter. Under the said circumstances, the present Review

Application is liable to be dismissed.

On the side of the review applicants, the following decisions have been relied upon:

(a) In K.S. Vidyanadam and Others Vs. Vairavan, the Honourable Apex Court has held that ""the Court should bear in mind that when parties

prescribe certain time limit for taking steps, the said time limit cannot be ignored altogether on ground that time is not essence of contract relating to

immovable property.

(b) In 2011 (4) CTC 640 (Supreme Court of India) (Saradamani Kandappan V. S. Rajalakshmi & Ors.) it has been held that ""when parties

prescribe time limit for taking certain steps or completion of transaction, such stipulation must have some significance and cannot be ignored.

(c) In 2003 (2) 45 (R. Jayasimha Babu and Govindappa Naidu V. C. Sidda Chetty and others) this Court has held that ""property changed hands

to third party, the plaintiff has approached Court with unclean hands and he is not entitled to get specific performance"".

(d) In 2007 (1) CTC 243 (G. Ramalingam v. T. Vijayarangam) this Court has held that ""presumption regarding time being essence of contract can

be by a clause in agreement or surrounding circumstances like object of making or entering into agreement.

(e) In 1998 (I) CTC 186 (Vasantha and others V. M. Senguttuvan) this Court has held that ""agreement holder should prove readiness and

willingness continuously from the date of agreement upto date of hearing.

It is a settled principle of law that in a suit for specific performance, the plaintiff therein must always be ready and willing to perform his part of

the contract. It is also equally a settled principle of law that time stipulated in sale agreement must be strictly followed. In the instant case, the

deceased first defendant himself has voluntarily written a letter stating his inability to perform his part of the contract and he also sought for one year

time. Therefore, it shows that the plaintiff has always been ready and wiling to perform her part of the contract. Under the said circumstances, the

decisions referred to supra are not helpful to the review applicants.

On the side of the respondent the following decisions have been accited.

(a) In AIR 1980 Supreme Court 674 (M/s. Northern India Caterers (India) Ltd., V. Lt. Governor of Delhi), the Honourable Apex Court has held

that ""a party is not entitled to seek a review of a judgment delivered by the Supreme Court merely for the purpose of a rehearing and a fresh

decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only

when circumstances of substantial and compelling character make it necessary to do so.

(b) In The Government of Tamil Nadu Vs. Registration Department SC/ST and M.B.C. Employees General Welfare Sangam and The Registrar,

Tamil Nadu Administrative Tribunal, Thiru S. Balakrishnan and others), the Division Bench of this Court has held that ""normal principle that once

judgment is passed by Court is final and binding can be departed when circumstances of substantial and compelling character make it necessary to

do so.

(c) In Sow Chandra Kante and Another Vs. Sheikh Habib, it is observed that ""a review of a judgment is a serious step and reluctant resort to it is

proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.

(d) In P. Samiappa Gounder Vs. The Regional Transport Authority and The State Transport Appellate Tribunal, , this Court has held that ""power

of review of its own decision arises only when there is a glaring error apparent on the face of the record. It cannot convert itself on an appellate

Court in order to find out the errors by delving deep into the entire records.

From the cumulative reading of the decisions referred to supra, it is made clear that power of review cannot be invoked in casual manner

unless an error apparent on the face of record.

In the instant case, it has already been pointed out in many places that in SA(MD) No. 249 of 2010 the very same point has been discussed in

extenso and ultimately decided in favour of the appellant therein. It is not an exaggeration to say that the learned counsel appearing for the review

applicants has completely re-argued the point which has already been argued and decided finally. Therefore, it is quite clear that in view of the

decisions referred to supra, the present Review Application is not at all maintainable and the same is liable to be dismissed. In fine, this Review

Application deserves dismissal and accordingly is dismissed with cost.