Smt. C. Susheela and Others vs Smt. Chanda Patwari

Amareswari, J.—This is a defendants appeal against the Judgment and decree of the Additional Chief Judge-cum-Special Judge for S.P.E. Cases, City Civil Court, Hyderabad dated 30.12.1981 in O.S.No.399 of 1980.

The first and second defendants are the wives of one Siddirami Reddy. Defendants 3 and 4 are the sons of Siddirami Reddy. Defendants 1 and 2 owned Plot No.73, measuring an extent of 3572 square yards in Road No. Banjara Hills, Hyderabad. They constructed a house in extent of 1650 square yards on the Northern side. The remaining land on the Southern side was kept for themselves. All the four defendants and the plaintiffs entered into an agreement of sale on 30.7.1979 Ex. A-1 in respect of 1650 square yards together with the building thereon. The plaintiff paid a sum of Rs.60,000/- s earnest money by a cheque. The total consideration for the suit property was Rs.5 lakhs. On of the principal conditions of the sale agreement was that the sale has to be completed within two months from the date of agreement and the defendants have to obtain the permission under the Urban Land Ceilings Act, non-encumbrance certificate and the income tax clearance certificate Ex. B-3 on 5.9.1979 and the permission from the Urban Land Ceiling authorities on 21.9.1979. But the Income Tax clearance certificate was obtained by them on 18.10.1979. By this time, the stipulated period of two months, was over. However, it does not make any difference as it is not the case of either party that time is the essence of the contract.

On 14.12.1979 the plaintiff addressed a letter to the defendants calling upon them to execute the sale deed and that they were ready with the balance sale consideration. Ex. A-4 is the letter. On 11.12.1979 the plaintiff issued a citation in Eenadu and Deccan Chronicle inviting objections from interested parties in respect of the sale transaction. On 20.10.1979 the defendants issued a notice cancelling the suit contract stating that the plaintiff had not fulfilled her part of the contract by getting the sale deed executed within 2 months as stipulated in the agreement, that, they obtained all the necessary permissions by 18.10.1979, within the stipulated time of two months from the date of agreement, that though the agreement was dated 31.7.1979 the actual date on which the agreement was written is 21.8.1979 that the plaintiff had also committed breach of the contract by not providing a passage in the suit site to enable the defendants to reach their land on the Southern portion, that the plaintiff in the first instance stated that she would provide a passage on the Western side instead of on the Eastern side, that on the second occasion, she refused to provide any passage either on the Eastern side or on the Western side. The defendant shave also stated that by the non-performance of the contract by the plaintiff by paying the sale consideration and getting the sale deed executed within the stipulated time their contract with one Sangameswara Reddy for purchase of his agricultural lands had failed.

To this notice, the plaintiff gave a reply Ex. A-6 on 30.12.1979. She denied that there was no agreement to provide a passage through the suit land either on the Eastern side or on the Western side, that the entire story is false and set up with a view to resile from the contract, that the plaintiff has nothing to do with the alleged agreement of the defendants with Sangameswara Reddy in respect of some agricultural lands, that if there was any such agreement, it is an independent transaction and has no bearing the suit contract. The plaintiff reiterated that she is willing and ready to perform their part of the contract and it was the defendants that were trying to back out from the agreement. The very next date, on i.e. 31.12.1979 the plaintiff filed the suit for specific performance of the agreement of sale Ex. A-1 reiterating the averments contained in the notices Exs.A-4 and A-6. Along with the plaint, she filed the agreement of sale Ex. A-1 and also the plan A-2 showing the house and the appurtenant site agreed to be sold and attached to Ex. A. 1.

The defendants resisted the suit by filing a written statement practically on the same, lines as Ex. A-5, the notice issued by them cancelling the contract. They further contended that Ex. A-2 is not the plan attached to the agreement of sale and that they have substituted it by another plan and that Ex. A-2 does not contain the signatures either parties.

Both sides adduced evidence. The plaintiff examined herself as P.W.1 and the defendants examined 3rd defendant Hanumantha Reddy as D. W. 1 and Siddarami Reddy, the husband of defendants 1 and 2 as D. W.2. The plaintiff filed Ex. A-1 the agreement of sale, Ex. A-2 the plan attached to Ex. A-1, Ex-A3 a letter addressed by the Life Insurance Corporation of India stating that the suit property was under mortgage with them, Ex. A-4 Office copy of the notice issued by the plaintiff to the defendants on 4.12.1979, Ex. A-5 notice issued by the defendants to the plaintiff cancelling the agreement Ex. A 1 on 20.12.1979, Ex. A-6 office copy of the reply given by the plaintiff to Ex. A-5 dated 30.12.1979 and Exs. A-7 to A-10 the postal receipts under which Ex. A-4 notice was sent to the defendants by the plaintiff.

The defendants on their side filed Ex. B-1 the permission granted by the Urban Land Ceiling authorities, Ex. B-3 the non-encumbrance certificate and Exs.B-4 to B-7 the income tax clearance certificates. They also filed Ex. B-2 a certificate issued by the Urban Land Ceiling Authorities to show that the defendants were not holding any surplus land.

On a consideration of the oral and documentary, the trial Court found that the agreement Ex. A-1 is true, that the plan Ex. A-2 is the correct plan and the plaintiff has not substituted, the same and that the plaintiff has not committed any breach of contract and the plaintiff has been always ready and willing to perform her part of the contract.

The learned Counsel for the appellants Mr. B.V. Subbhaiah contended that the findings of Court below are erroneous and the remedy of specific performance being an equitable remedy, it should not be granted in view of the conduct of the parties. He urged that the defendants have obtained all the necessary permissions within the time and it was the plaintiff, who committed breach of contract by not getting the sale deed executed within the stipulated time and by refusing to give a ''passage in the suit as agreed to by her at the time of agreement of sale. He further urged that there is no other road t o reach their site on the Southern portion and as such it is improbable that they agreed to sell the suit site without providing a passage through the suit site. He submitted that this ground alone would disentitle the plaintiff to get the relief of specific performance as otherwise, it would cause great hardship to the defendants as they would be deprived of their right to enjoy their property as there is no approach road to their site on the Southern portion.

The sole point for consideration is whether the plaintiff had committed any breach of contract by not providing any passage through the suit site as agreed upon and whether there is any such conduct on the part of the plaintiff disentitling her to the relief of specific performance and whether any under hardship would be caused to the defendants by decreeing the suit for specific performance.

It is the admitted case of both parties that the defendants agreed to sell the suit house to the plaintiff for a sum of Rs.5 lakhs and executed the agreement of sale Ex. A-1 on 30.8.1979. In the agreement Ex. A-1 there is not clause relating to leaving of passage of 12 feet width on any side of the building and if really the plaintiff agreed to leave such a passage certainly it would have been mentioned in the agreement Ex. A-1. There are as many as 10 conditions stipulated in the agreement, Nothing prevented the defendants to stipulate the leaving of the passage, if really it was essential for them to enjoy the land on the southern portion. The boundaries mentioned in the agreement d onto substantiate the case of the defendants. It s also pertinent to note that the fact that there was no approach road or that the passage is an absolute necessity is not even stated in the written statement, Ex. A-2, the plan attached to the agreement of sale, Ex. A-1, does not show any passage to the rear portion. But it is the contention of the defendant that Ex. A-2 is not the plan annexed to the agreement and that it is substituted by they plaintiff for the purpose of the suit. D.W.2 admitted in his evidence that the agreement Ex. A-1 was got approved by their Advocate Sri N.K. Acharya and that their Advocate advised them to keep one copy with them and keep the counter agreement with Sangameshwar Reddy as they agreed to purchase some agricultural lands from him. The agreement with Sangameshwar Reddy according to them, was two days after the said agreement. Further according to D.W.2, the plan attached to agreement is a blue print plan and the passage portion is shown in red lines. But the details of cross section of houses are not shown in the said plan. It is stated that n the original plan passage is shown in red lines. D.W.2, admitted that the agreement copy signed by the plaintiff was kept with the plaintiff. If that is so, the plans must also have been exchanged between the parties. But the defendants have not produced that plan into Court to show that a passage was provided in the suit site. They do not even explain what happened to that plan.

D.W.1 also stated that Ex. A-2 is not the correct plan and it was substituted for the original plan. Since the defendants have not filed the plan, which according to them was substituted, an adverse inference must be drawn that if produced it would go against them. Thus there is no material to hold that Ex. A-2 is not the correct plan and the same was substituted by the plaintiff.

Even as regards the oral evidence it is wholly unsatisfactory. It is submitted that when Siddarama Reddy and Sangmeshwar Reddy approached the plaintiff to get the sale deed executed by paying the sale consideration, the plaintiff raised a dispute regarding, the passage. Sangameshwar Reddy has not been examined. It is the case of the plaintiff that there is no agreement regarding the passage at all and it was invented only for the purpose of resiling form the contract. The date on which the talks have taken place and the particulars regarding going back upon the agreement to provide the passage are not specifically stated. Even in the notice Ex. A-5 there is only a casual reference to the agreement regarding the passage.

On a consideration of the entire material, we are convinced that the plea of the defendants that the plaintiff committed the breach of contract by hot agreeing to provide a passage is not established. Further it is the case of the defendants that when there were negotiations regarding this matter, the plaintiff herself stated that the contract may be treated as cancelled, and the advance money may be returned and that when the defendants offered the money by way of cheque, the Plaintiff refused saying that it should be paid in cash. We are unable to believe the story of the defendants as it looks highly improbable. If the plaintiff wanted the contract to be cancelled, she will be only anxious to take back the money paid by her as advance. It is not a small amount. It is a substantial amount of Rs.60,000/- and there is no reason also why the plaintiff should insist upon cash payment when the advance money as admittedly paid her through a cheque. Even is she insisted on cash payment, there was no difficulty for the defendants to have paid back the amount in cash and take a receipt from her. The entire story set up by the defendants is wholly unnatural, improbable besides there being no evidence worth the name to show that there was any sort of agreement regarding the passage to be provided through the suit site.

The other contention advanced was that the plaintiff was not ready to get the sale deed executed within the time stipulated in the contract. Ex. A-1, the agreement of sale, is dated 31.7.1979. Ex. A-1 shows that the stamp was also purchased on the same date. All the necessary permissions were obtained by the defendants only by 18.10.1979. This is beyond the period of two months stipulated in the agreement. But the defendants contend that though the agreement is dated 31.7.1979, it was actually executed on 21.8.1979. There is absolutely no reason why the agreement should be ante-dated. When the stamps were purchased on 31.7.1979 and the date is mentioned as 31.7.1979 and the cheque for a sum of Rs.60,000/- as also issued by the plaintiff on 31.7.1979, there is no reason to execute the document on 21.8.1979 by ante-dating the same. Apparently the story of execution of document on 21.8.1979 was invented to buttress their case that though they have obtained necessary permissions within the stipulated period of two months, the plaintiff committed breach by not getting the sale deed executed by paying the sale consideration. However this does not assume much significance in view of the fact that in contracts of sale relating to immovable property, time is not the essence of the contract. The agreement does not provide that the time is the essence of the contract and the judicial opinion consistently in this regard is that even in case where there is an express provision that the time is the essence of the contract, still that by itself is not the determining factor. But his certainly shows the conduct of the defendants in switching to this theory for the purpose of strengthening their contention that the plaintiff was not ready and willing to perform her part of the contract within the stipulated period.

There is yet another circumstances to be taken note of. All the permissions including the income tax clearance certificate were obtained on 18.10.1976. -New D.W.1 admits that the dispute regarding the passage started on 19.10.1970. For a period of two months the defendants have not even issued an notice asking the plaintiff to perform her part of the contract. Ex. A-5, the notice issued by the defendants, was only on 20.12.1979 viz., two months after and in the meanwhile two important incidents have happened. The plaintiff herself gave a notice on 4.12.1979 as evidenced by Ex. A-4 calling upon the defendants to execute the sale deed after receiving the balance consideration ready with her. No doubt the defendants deny the receipt of this notice. But Exs. A-17 to A.10, postal receipts, show that such notice had in fact been issued. The other circumstance is that the plaintiff had issued a citation in two leading newspapers, the Deccan Chronicle and Eenadu on 11.12.1979 calling for objections from interested, parties regarding the suit agreement of sale. The citation belies the story of the defendants that the plaintiff herself had cancelled the contract and asked for refund of the money.

In the light above discussion we hold that the plaintiff has not committed any breach of the contract, that the plan Ex. A-2 is the plain attached to the agreement of sale, Ex. A-1 and that the same does not proved for any passage through the suit site.

It is strenuously contended by Mr. B.V. Subbaiah, learned for the counsel appellants defendants, that the relief of specific performance is an equitable remedy. If a passage is not provided through the site, a large extent of land lying on the southern side would be rendered useless and great hardship would be caused to the defendants. This is not the case pleaded by the defendants in their written statement. Nowhere they have stated that there is no approach road to their site on the southern side. In the absence of a plea, we are unable to appreciate this contention regarding hardship.

Now the appellants have filed a petition C.M.R No. 14811 of 1989 to receive the plan prepared by the HUDA to show that their was no approach road to their land on the southern side. We are afraid we cannot take this evidence at this stage for more than one reason. Firstly there is no plea in the written statement that there was no approach road, we cannot permit any evidence in respect of a plea which was not taken. Secondly it was open to the defendants to have obtained this document and filed it during the trial of the suit. The receiving of additional evidence at the appellate stage is not a matter of course. Order 41, Rule 27 C.P.C. is couched in negative terms. It says that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court except in the circumstances mentioned in clauses (a), (aa) and (b) of the said Rule. The rule is that additional evidence should not admitted except when it comes under any of the clauses. Clause (a) says that "the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted." This is not the case here, as the documents are sought to be produced for the first time. Clause (aa) says that:

"the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence be produced by him at the time when the decree appealed against was passed."

The words "after the exercise of due diligence" are significant. There is absolutely no reason why these documents were not obtained during the trial and filed at that time. Clause (b) says that:

"the appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause." This is the power of the Court to require any document in order to do substantial justice between the parties. Now the application filed by the defendants do not satisfy the requirements of these three clauses and we are of the opinion that these documents are not necessary to decide the case, nor do we find any substantial cause to admit them in evidence. On the other hand we think that the admission of this document is not warranted, because there is no such plea in the written statement. If really there was no approach road, on which the entire argument of the appellants is now based, it would have found a place in the written statement. We therefore do not see any ground to admit this document into evidence at the stage, C.M.P.No.14811 of 1989 is dismissed.

The appellants have also filed C.M.P.No.5892 of 1984 to receive the documents as additional evidence to show that the plaintiff paid a sum of Rs. 10,000/- to Sangameshwar Reddy. But the agreement of the defendants with Sangameshwar Reddy, if at all there is any, has nothing to do with the suit agreement. They are two independent transactions. It might be that the defendant''s intention was to purchase agricultural lands belonging to Sangameshwar Reddy with the sale proceeds of the house. But that agreement has no bearing on deciding the question whether the plaintiff has committed any breach of contract in question. Even the documents sought to be marked do not show that it was the plaintiff that paid the amount of Rs. 10,000/-. All that it shows is that there is a credit entry of Rs. 10,000/- in the amount of Sangameshwar Reddy. For these reasons we are unable to accept these documents as additional evidence at this stage and C.M.P.No.5892 of 1984 is also dismissed.

As contended by the appellants, if really there is no approach road to their land on the southern side, it is always open to them to seek redress in that regard by instituting an appropriate suit either for a declaration of easement of necessity or the like. We do not think that an easement of necessity can be established in a suit for specific performance. Even if such an easement of necessity is establish, the contract cannot get frustrated. In order to do justice between the parties, at the most the court may provide in the decree that the plaintiff should leave a passage on one side. The Contracts admitted by both the parties., The amount paid towards advance money is also admitted and in the absence of there being no breach of contract, the suit for specific performance has to be decreed and there are no reasons to decline that relief. There are no laches on the part of the plaintiff so as to warrant declining of the relief, to which she is otherwise entitled to

For all these reasons, we do not see any merits in this appeal. Now it is established by Ex. A-3 a letter written by L.I.C. in response to the citation published in the News Papers that the house is mortgaged to them by the defendants. The fact that the defendants obtained a loan from subject to mortgage as nothing is mentioned in the agreement. On the other hand, it is the case of the plaintiff that this fact was suppressed and the same was not disclosed to her. No doubt, the defendants say that the plaintiff was informed about it. But we do not find any clause to this effect in the agreement. Since the house is subject to a mortgage, the plaintiff is entitled to redeem the mortgage from out of the balance of sale consideration and pay the remaining amount to the defendants at the time of registration of the sale deed.

The appeal is accordingly dismissed with costs.