Rajmal (Dead) Through L.R. Arjun Kumar vs Santokbai and Others

N.K. Jain, J.

The judgment & Decree impugned in the second Appeal are rendered on 18.8.87, in Civil Appeal No. 3-A/84 by the I Ind Additional District Judge, in affirmance of the Judgment & Decree dated 1.1.84, passed in Civil Suit No. 37-A/83, by Civil Judge, Class-II, Khachrod, decreeing suit of the respondnet-Plaintiffs for specific performance of contract of sale.

This appeal has been admitted on following substantial question of law -

(1) Whether under the circumstances of the case the suit of the Plaintiffs is maintainable when the basic relief claimed is for redemption of the mortgage and in the alternative the Plaintiff claims specific performance of the contract as the relief of redemption and specific performance are destructive and contrary of each other ?

(2) Whether under the facts and in the circumstances of the case the first appellate Court was justified in rejecting the application for amendment by which the Defendant wanted to take a legal plea ?

(3) Whether under the facts and circumstances of the case the Court below were justified in relying upon the secondary evidence when there are material contradictions and material omissions in the statements of the Plaintiff and their witnesses ?

(4) Whether under the facts and in the circumstances of the case the Plaintiffs are entitled to a decree for specific performance when he did not come with the case he was always ready and willing to perform his part of the contract even more when the Plaintiff has not made any plea regarding readiness and willingness ?

The dispute pertains to a house situated at Khachrod belonging to the Respondent-Plaintiffs. The Plaintiffs on 1.12.77 executed a sale-deed of this house in favour of the Appellant-Defendant for a sum of Rs. 5,000/-. According to the Plaintiffs the transaction in question was one of mortgage in essence and substance, though, it was clothed in the garb of a transaction of ostensible sale. They further averred that on 6.12.77 a deed of reconveyance was executed by the Defendant in fvour of the Plaintiffs agreeing to sale the house in question for the same amount within 10 years of the date of execution of the agreement. The possession of the house remained with the Plaintiffs, who were required to pay some rent to the Defendant. The Plaintiffs claimed alternative relief of redemption of mortgge or specific performance of the contract of sale. They further averred that they were always willing and are still willing to perform their part of the agreement.

The suit was resisted by the Defendant, who denied execution of the agreement dated 6.12.77. The trial Court decreed the suit for specific performance of contract. The decree of the trial Court stands affirmed in 1st appeal. Both the Courts below have held that the transaction in question was of sale and that the purchaser Defendant had agreed to sell the house back to the Plaintiffs if the latter paid him Rs. 5,000/- within 10 years. Both the Courts below accepted the secondary evidence led by the Plaintiffs regarding execution of the agreement dated 6.12.77.

I have heard Shri S. S. Garg, learned Counsel for the Appellant and Shri B.L. Pavecha, learned Senior Counsel with Shri R.C. Chhajed for the Respondent.

Taking the first question first, it is now well settled that the Plaintiff is entitled to plead even in consistant pleas. Rule 7 of Order VII Code of CPC is wide enough to cover all such reliefs as are consistent with the averments made in the plaint. In G. Nagamma and Another Vs. Siromenamma and Another, the Apex Court in a suit filed for specific performance of an agreement of reconveyance allowed amendment application under Order VI Rule 17 C.P.C, seeking amendment to the effect that the transaction of execution of sale-deed and obtaining a document for reconveyance were single transaction i. e., mortgage by conditional sale. It also allowed the Plaintiff to seek alternative relief to redeem the mortgage. The Apex Court held, thus:

The Plaintiff is entitled to plead even inconsistent pleas. In this case, the Plaintiffs were seeking alternative reliefs. The application was for amendment of the plaint whereby neither cause of action could change nor the relief could be materially affected. The same has to be allowed.

It will be thus seen that the two reliefs claimed by the Plaintiffs were not destructive of such other and there is nothing in law which prevented the Plaintiffs from claiming such an alternative reliefs. The question No. 1 is accordingly answered against the Appellant.

As regards question No. 2, the appellate Court has rejected Defendants application for amendment, whereby the Defendant wanted to raise a plea that the suit for specific performance was premature as the deed of reconveyance fixed a term of 10 years within which the amount of Rs. 5,000/- was to be repaid by the Plaintiffs. The period of 10 years was the outer limit fixed for making the payment and getting the deed of reconveyance executed. The appellate Court below has discussed this point in its judgment and rightly concluded that the proposed amendment was unnecessary on the face of it as the suit filed by the Plaintiff was not premature. The Plaintiff were entitled to get the deed of reconveyance executed any time within the said period of 10 years on payment of consideration amount of Rs. 5,000/-. No illegality was, therefore, committed by the appellate Court in rejecting the Defendant''s application for amendment, which was rather malafide.

Coming to question No. 3 it may be observed at the out-set that both the Courts below have concurrently held as a fact, that the Defendant did execute agreement of reconveyance as claimed by the Plaintiffs. Both the Courts below have discussed at length the secondary evidence led by the Plaintiffs in this behalf and came to a clear finding as to the execution of the agreement by the Defendant. The finding is a finding of fact pure and simple, not open to challenge in second appeal.

It is well settled that in 2nd appeal the Court cannot reappreciate the evidence unless the judgment is perverse or based upon no evidence or non consideration of documents. No such illegality exists in the instant case. The Plaintiffs have led overwhelming evidence to show that the agreement in question was taken away by the Defendant at the time when some more loan was advanced to Plaintiff No. 1 Santokbai. The execution and existance of agreement is evidenced by the statement of the advocate who drafted that agreement and the records of the Municipality were the copy of the said document was produced in reply to an application made by the Defendant for mutation of his name on the basis of the sale-deed dtd. 1.12.77. Alongwith that objection a copy of the agreement was filed, which was compared with original and verified by the official of the Municipality. The finding regarding execution of the agreement and its retention by the Defendant is based on proper appreciation of evidence and cannot be termed as perverse. The question No. 3 also, therefore, deserves to be answered against the Appellant-Defendant.

As regards question No. 4, learned Counsel for the Respondents taking recourse to Sub-section (5) of Section 100 CPC, contended that this case does not involve this question at all. He has taken me through the plaint, in para-5 thereof, there are clear averments to the effect that the Plaintiffs were always willing and are still willing to perform their part of the agreement inasmuch as they were prepared and are still prepared to pay the consideration amount of Rs. 5,000/- to the Defendant and get the sale-deed executed and registered at their own costs. It is further noted that the Plaintiffs as back as on 22.6.79 served the Defendant with a notice (D/4) requiring himn to execute the sale-deed after accepting the consideration amount of Rs. 5,000/-. This notice was not even replied to by the Defendant. The Plaintiffs again on 25.2.80 served the Defendant with another notice (P/3) offering to pay the consideration amount of Rs. 5,000/-and get the sale-deed executed and registered. There are thus not only appropriate pleadings, but adequate evidence also to show the Plaintiffs willingness and readinese to perform their part of the agreement in terms of Section 16 (1) (c) of the Specific Relief Act. I, accordingly, hold that the question No. 4 does not arise in this appeal.

As a result of the aforesaid findings this appeal fails and is dismissed with costs.