K. KARUPPURAJ versus M. GANESAN on 4 October 2021

[2021] 8 S.C.R. 743

K. KARUPPURAJ

v.

M. GANESAN

(Civil Appeal Nos. 6014-6015 of 2021)

OCTOBER 04, 2021

[M.R.SHAH AND A.S. BOPANNA, JJ.]

Specific Performance – Suit for specific performance ofcontract filed by plaintiff – Dismissed – First appeal, allowed byHigh Court – Held: For the purpose of passing decree for specificperformance, plaintiff has to prove both readiness and willingness–Trial court held the issue of willingness against plaintiff by givingcogent reasons, on appreciation of evidence and considering thepleadings in the plaint, the same is justified – Plaintiff was not entitledto decree of specific perfpormance – Impugned judgment set aside– Decree passed by Trial court, restored – Code of Civil Procedure,1908.

Code of Civil Procedure, 1908 – s.96, Or.XLI, r.31; Or.VI,r.17 – First appeal – Disposal of – Held: First appeals are to bedecided after following the procedure under CPC – Reliance uponthe affidavit without amending the plaint and the pleadings is whollyimpermissible under the law – In the present case, the High Courtdisposed of the appeal preferred u/Or.XLI r/w s.96 in a most casualand perfunctory manner.

Allowing the appeals, the Court

HELD:1.1 The High Court has disposed of the appealpreferred under Order XLI CPC read with Section 96 in a mostcasual and perfunctory manner. Apart from the fact that the HighCourt has not framed the points for determination as requiredunder Order XLI Rule 31 CPC, it appears that the High Courthas not exercised the powers vested in it as a First AppellateCourt. The High Court has neither reappreciated the entireevidence on record nor has given any specific findings on theissues which were even raised before the Trial Court. As per thecase of the original plaintiff- respondent, the defendant-appellantwas required to evict the tenants and hand over the physical and

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Avacant possession at the time of execution of the sale deed onpayment of full sale consideration. Even in the suit notice issuedby the plaintiff, the plaintiff called upon the defendant to evict thetenants and thereafter execute the sale deed on payment of fullconsideration from the plaintiff. Even when the pleadings andthe averments in the plaint are considered, it appears that theBplaintiff was never willing to get the sale deed executed withtenants and/or as it is. It was the insistence on the part of theplaintiff to deliver the vacant possession after evicting the tenants.Therefore, on the basis of the pleadings in the plaint and onappreciation of evidence, the Trial Court held the issue ofCwillingness against the plaintiff. However, before the High Court,the plaintiff filed an affidavit stating that he is now ready and willingto get the sale deed executed with respect to the property withtenants and the High Court relying upon the affidavit in the firstappeal considered that as now the plaintiff is ready and willing topurchase the property with tenants and get the sale deed executedDwith respect to the property in question with tenants, the HighCourt has allowed the appeal and decreed the suit for specificperformance. The aforesaid procedure adopted by the High Courtrelying upon the affidavit in a First Appeal by which virtuallywithout submitting any application for amendment of the plaintEunder Order VI Rule 17 CPC, the High Court as a First AppellateCourt has taken on record the affidavit and as such relied uponthe same. Such a procedure is untenable and unknown to law.First appeals are to be decided after following the procedure tobe followed under the CPC. The affidavit, which was filed by theplaintiff and which has been relied upon by the High Court is justFcontrary to the pleadings in the plaint. There were no pleadingsin the plaint that he is ready and willing to purchase the propertyand get the sale deed executed of the property with tenants andthe specific pleadings were to hand over the peaceful and vacantpossession after getting the tenants evicted and to execute theGsale deed. The proper procedure would have been for the plaintiffto move a proper application for amendment of the plaint inexercise of the power under Order VI Rule 17 CPC, if at all itwould have been permissible in a first appeal under Section 96read with Order XLI CPC. However, straightaway to rely upon H

the affidavit without amending the plaint and the pleadings iswholly impermissible under the law. Therefore, such a procedureadopted by the High Court is disapproved. The learned Trial Courtheld the issue of willingness against the plaintiff by giving cogentreasons and appreciation of evidence and considering thepleadings and averments in the plaint. The Trial Court was justifiedin holding the issue of willingness against the plaintiff. The plaintiffwas never ready and willing to purchase the property and/or getthe sale deed executed of the property with tenants. It was forthe first time before the High Court in the affidavit filed beforethe High Court and subsequently when the Trial Court held theissue of willingness against the plaintiff, the plaintiff came outwith a case that he is ready and willing to purchase the propertywith tenants. For the purpose of passing the decree for specificperformance, the plaintiff has to prove both the readiness andwillingness. Therefore, once it is found on appreciation of evidencethat there was no willingness on the part of the plaintiff, the plaintiffis not entitled to the decree for specific performance. Therefore,in the present case, the Trial Court was justified in refusing topass the decree for specific performance. [Paras 6, 8][752-B-C;754-G-H; 755-A-H; 756-A-C]

B.V. Nagesh and Anr. Vs. H.V. Sreenivasa Murthy (2010)13 SCC 530 : [2010] 11 SCR 784; H. Siddiqui (Dead)by LRs. Vs. A. Ramalingam (2011) 4 SCC 240 : [2011]5 SCR 587; State Bank of India and Anr. Vs. EmmsonsInternational Limited and Anr. (2011) 12 SCC 174 :[2011] 10 SCR 436; Madhukar and Ors. Vs. Sangramand Ors.,(2001) 4 SCC 756 : [2001] 3 SCR 138; H.K.N.Swami Vs. Irshad Basith (Dead) by LRs., (2005) 10 SCC243; Jagannath Vs. Arulappa and Anr. (2005) 12 SCC303 – relied on.

1.2 Not refunding the amount of part sale consideration with18% interest as ordered by the Trial Court cannot be a groundto confirm the impugned judgment and order passed by the HighCourt. The plaintiff as such could have filed an execution petitionto execute the judgment/decree passed by the Trial Court.The appellant-original defendant to refund the amount ofRs.3,60,001/- with 18% interest from the date of the agreement AB

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Atill the date of realization within a period of eight weeks fromtoday. The impugned judgment and order passed by the HighCourt of judicature at Madras in Appeal Suit No. 94 of 2010 isquashed and set aside and the judgment and decree passed bythe Trial Court stands restored. [Paras 10, 11][757-F-H]

Case Law Reference

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From the Judgment and Order dated 27.11.2017 and 06.01.2020of the High Court of Judicature at Madras in Appeal Suit No.94 of 2010Dand Review Application No.71 of 2019 in Appeal Suit No.94 of 2010.

Ratnakar Dash, Sr. Adv., S. Thananjayan, Ms. Promila, Ms. Aaina,Ms. Jaswanti, Advs. for the Appellant.

Navaniti Prasad Singh, Sr. Adv., P. V. Yogeswaran, Ashish KumarEUpadhyay, Y. Lokesh, Ms. V. Keerthana, Pankaj Agarwal, Ms. IndiraBhakar, Advs. for the Respondent.

The Judgment of the Court was delivered by

M. R. SHAH, J.

F1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 27.11.2017 passed by the High Court of Judicature atMadras in Appeal Suit No. 94 of 2010 by which the High Court hasallowed the said appeal by quashing and setting aside the judgment anddecree passed by the learned Trial Court dismissing the suit for specificperformance and consequently decreeing the suit, the original defendantGhas preferred the present Civil Appeal No. 6014 of 2021.

1.1 Feeling aggrieved and dissatisfied with the judgment and orderdated 06.01.2020 rejecting the Review Application No. 71 of 2019 inAppeal Suit No. 94 of 2010, the defendant as review applicant haspreferred the present Civil Appeal No. 6015 of 2021.

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2. The facts leading to the present appeals in a nutshell are asunder:- 2.1 An agreement for sale of the property situated in KaspaCoimbatore was entered into between the plaintiff and the defendantwherein the defendant agreed to sell the same for a sale considerationof Rs. 16.20 lakhs to the plaintiff. A part sale consideration of Rs.3,60,001/- was paid at the time of execution of the agreement to sell. There werecertain conditions stipulated in the agreement to sell. One of the conditionswas that the defendant as original owner was required to evict the tenantsfrom the property in question and thereafter to execute the sale deed onreceipt of the full sale consideration. The plaintiff sent a legal notice tothe defendant asking to evict the tenants from the property in questionand to execute the sale deed on receipt of the balance sale considerationvide notice dated 01.07.2006.

2.2 That thereafter the plaintiff filed the present suit before thelearned Trial Court for specific performance of the contract. It was thecase on behalf of the plaintiff that he was ready and willing to performhis part of the contract but the defendant did not evict the tenants andcome forward to execute the sale deed. Therefore, it was averred inthe plaint that the defendant has to evict the tenants and perform his partof the contract and execute the sale deed. It was pleaded on behalf ofthe plaintiff that he was ready with the cash in his savings account and,therefore, he was always ready to perform his part of the contract. Thedefendant contested the suit by filing the written statement. Readinessand willingness on the part of the plaintiff and to perform the specificpart of the contract was specifically denied. It was submitted that vacantpossession was already known to the plaintiff as the tenants had beenvacated and inspite of such the plaintiff was not ready to pay theremaining consideration. The learned Trial Court framed the followingissues:- “1.Whether the plaintiff is entitled for specific performance?

2. Whether the plaintiff was ready and willing to purchase theproperty?

3. To what relief?”

2.3 Both the sides led the evidence, documentary as well as oral.On appreciation of evidence and considering the pleadings in the plaint,the learned Trial Court held the issue of readiness on the part of the A

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Aplaintiff in favour of the plaintiff, however, held that the plaintiff was notwilling to get the sale deed executed as it is, and, therefore, held theissue of willingness against the plaintiff. The Trial Court also held thatthe defendant has failed to prove that tenants had vacated the suit propertyas claimed, however, the learned Trial Court held on willingness againstthe plaintiff by observing that the plaintiff has not shown the willingnessBto purchase the property with the tenants and there are no such pleadingsin the plaint and that the plaintiff has not elected to purchase the propertyas its nature. Therefore, the Trial Court on appreciation of the evidenceultimately held that the plaintiff was not at all willing to purchase theproperty with the tenants. Accordingly, the learned Trial Court dismissedCthe suit and refused to pass the decree for specific performance of thecontract and directed the defendant to refund the advance amount ofRs.3,60,001/- with interest @ 18% p.a. from the date of agreement tillthe date of realization, to be paid within a period of two months. Thelearned Trial Court also directed that there shall be a charge over theproperty till such amount is realized by the plaintiff from the defendant.D

2.4 Feeling aggrieved and dissatisfied with the judgment and decreepassed by the learned Trial Court dismissing the suit for specificperformance, the plaintiff filed the appeal suit before the High Court. Bythe impugned judgment and order, relying upon the affidavit filed beforethe High Court in which for the first time the plaintiff stated that he isEready and willing to purchase the property with the tenants, the HighCourt without even re-appreciating the entire evidence on record andeven without framing the points for determination has allowed the appealby the impugned judgment and order and has set aside the judgment anddecree passed by the learned Trial Court, and consequently has decreedFthe suit for specific performance of the contract.

2.5 Feeling aggrieved and dissatisfied with the impugned judgmentand order/decree passed by the High Court – First Appellate Courtallowing the appeal and consequently decreeing the suit for specificperformance of the contract, the original defendant has preferred theGpresent appeal being Civil Appeal No.6014 of 2021. After the impugnedjudgment and order/decree, the defendant filed the review applicationbefore the High Court, which has been dismissed, which is the subjectmatter of Civil Appeal No.6015 of 2021.

3. Shri Ratnakar Dash, learned senior counsel appearing for theHappellant/defendant has vehemently submitted that in the facts and circumstances of the case, the High Court has materially erred in allowingthe appeal and decreeing the suit for specific performance of the contract.

3.1 It is vehemently submitted by the learned senior counselappearing for the appellant that the impugned judgment and order passedby the High Court as a First Appellate Court cannot be sustained. It issubmitted that as such the High Court has not exercised the appellatejurisdiction vested in it, particularly, while exercising the jurisdiction underSection 96 read with Order XLI Rule 31 of the Civil Procedure Code. Itis submitted that the High Court has not at all re-appreciated the evidenceon record and without even discussing the evidence on record and evenwithout raising the points for determination on the basis of the issueswhich were framed by the learned Trial Court, the High Court has allowedthe appeal and has decreed the suit for specific performance, whichotherwise is not permissible.

3.2 It is further submitted by learned senior counsel appearing onbehalf of the appellant that there is no re-appreciation of evidence onthe issue of willingness on the part of the plaintiff, which was dealt withand considered by the learned Trial court in detail and the issue whichwas held against the plaintiff.

3.3 It is submitted that even the High Court has erred in passingthe impugned judgment and order relying upon the affidavit of therespondent-plaintiff, which was filed before the High Court in which forthe first time the plaintiff came out with a case that he is ready andwilling to purchase the property with tenants. It is submitted that such acourse adopted by the High Court is wholly impermissible under the law.

3.4 It is submitted that what was not pleaded by the plaintiff in theplaint on willingness to purchase the property with tenants has now beenpermitted by the High Court relying upon the affidavit filed before theHigh Court for the first time. It is submitted that the affidavit filed by theplaintiff before the High Court that he is ready and willing to purchasethe property with tenants is just contrary to the pleadings in the plaintand even the findings recorded by the learned Trial Court.

3.5 It is further submitted by learned senior counsel appearing forthe appellant that as such the plaintiff never agreed to purchase theproperty with tenants and as per the case of the plaintiff and so averredin the plaint, it was pleaded that it was the responsibility of the defendant A

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Ato evict the tenants and hand over the peaceful vacant possession andexecute the sale deed. It is submitted that, therefore, thereafter it wasnot open on the part of the plaintiff to submit that he is ready and willingto purchase the property with tenants and that too by an affidavit for thefirst time filed before the High Court.

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B3.6 It is submitted that without even permitting the plaintiff toamend the plaint, the course adopted by the High Court permitting tochange his stand by way of an affidavit is unknown to law and theprocedure to be followed under the provisions of the CPC. Making abovesubmissions and relying upon the decisions of this Court in the case ofB.V. Nagesh and Anr. Vs. H.V. Sreenivasa Murthy, (2010) 13 SCCC530,H. Siddiqui (Dead) by LRs. Vs. A. Ramalingam (2011) 4 SCC240 and State Bank of India and Anr. Vs. Emmsons InternationalLimited and Anr. (2011) 12 SCC 174, it is prayed to allow the presentappeal and quash and set aside the impugned judgment and order passedby the High Court and consequently dismiss the suit.D

4. Present appeal is vehemently opposed by Mr. Navaniti PrasadSingh, learned senior counsel appearing on behalf of the respondent –original plaintiff.

4.1 It is vehemently submitted by learned senior counsel appearingEon behalf of the respondent - plaintiff that as such as per the condition inthe agreement to sell, it was the responsibility of the defendant to evictthe tenants and thereafter to hand over the peaceful and vacant possessionand execute the sale deed on receipt of the balance sale consideration.It is submitted that in the present case admittedly the defendant did notperform his part of evicting the tenants. It is submitted, therefore, that toFallow the suit and pass the decree for specific performance willtantamount to giving a premium to the defendant, who has failed toperform his part under the agreement to sell.

4.2 It is submitted that as such against the total sale considerationof Rs.16.20 lakhs, defendant paid only Rs. 3,60,001/- at the time ofGexecution of agreement to sell. It is submitted that, therefore, whensubsequently the learned Trial Court held that plaintiff did not elect toget the sale deed executed with tenants, the defendant rightly filed anaffidavit before the High Court and stated that he is ready and willing toget the sale deed executed even with tenants. It is submitted, therefore,Hthat by allowing the defendant to file the affidavit to contend that he is ready and willing to get the sale deed executed and to purchase theproperty with tenants, the High Court has done the substantial justice soas to not to permit the defendant to take the benefit of his own wrong innot evicting the tenants.

4.3 It is further submitted by learned senior counsel appearing onbehalf of the respondent - plaintiff that even the defendant has not returnedthe amount of part consideration paid, i.e., Rs.3,60,001/- with interest @18% p.a. to the plaintiff though directed by the learned Trial Court. Inthe alternative, it is submitted by the learned senior counsel appearing onbehalf of the respondent that the technicalities shall not come in the wayof the plaintiff and, therefore, the matter may be remitted to the HighCourt and permit the plaintiff to amend the plaint in exercise of powersunder Order VI Rule 17 of the CPC.

4.4 Alternatively, it is also submitted that if this Court is of theopinion that the High Court ought not to have disposed of the appealwithout determining the points for determination on the issues framed bythe learned Trial Court, in that case, the matter may be remitted to theHigh Court for fresh consideration and to decide and dispose of theappeal afresh after framing the points for determination as required underOrder XLI Rule 31 of the CPC. Making above submissions, it is prayedto dismiss the present appeal.

5. Heard the learned counsel for the respective parties at length.

6. In the present case, the original plaintiff instituted a suit forspecific performance of the contract. On appreciation of evidence, thelearned Trial Court held the issue of readiness in favour of the plaintiff.However, refused to pass the decree for specific performance of thecontract on the ground that the plaintiff was not willing to purchase theproperty with tenants. Therefore, the issue with respect to willingnesswas held against the plaintiff. In an appeal filed before the High Courtunder Section 96 read with Order XLI by the impugned judgment andorder, the High Court has allowed the said appeal and has quashed andset aside the decree passed by the learned Trial Court dismissing the suitand consequently has decreed the suit for specific performance. Havinggone through the impugned judgment and order passed by the High Court,it can be seen that there is a total non-compliance of the Order XLI Rule31 of CPC. While disposing of the appeal, the High Court has not raisedthe points for determination as required under Order XLI Rule 31 CPC.

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AIt also appears that the High Court being the First Appellate court hasnot discussed the entire matter and the issues in detail and as such itdoes not reveal that the High Court has re-appreciated the evidencewhile disposing of the first appeal. It also appears that the High Courthas disposed of the appeal preferred under Order XLI CPC read withSection 96 in a most casual and perfunctory manner. Apart from theBfact that the High Court has not framed the points for determination asrequired under Order XLI Rule 31 CPC, it appears that even the HighCourt has not exercised the powers vested in it as a First AppellateCourt. As observed above, the High Court has neither re-appreciatedthe entire evidence on record nor has given any specific findings on theCissues which were even raised before the learned Trial Court.

6.1 In the case of B.V. Nagesh and Anr. (supra), this Court hasobserved and held that without framing points for determination andconsidering both facts and law; without proper discussion and assigningthe reasons, the First Appellate Court cannot dispose of the first appealDunder Section 96 CPC and that too without raising the points fordetermination as provided under Order XLI Rule 31 CPC. In paragraphs3 and 4, it is observed and held as under:- “3. How the regular first appeal is to be disposed of by theappellate court/High Court has been considered by this Court inEvarious decisions. Order 41 CPC deals with appeals from originaldecrees. Among the various rules, Rule 31 mandates that thejudgment of the appellate court shall state:

(a) the points for determination;

(b) the decision thereon;

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(c) the reasons for the decision; and

(d) where the decree appealed from is reversed or varied, therelief to which the appellant is entitled.

G4. The appellate court has jurisdiction to reverse or affirm thefindings of the trial court. The first appeal is a valuable right of theparties and unless restricted by law, the whole case is thereinopen for rehearing both on questions of fact and law. The judgmentof the appellate court must, therefore, reflect its consciousapplication of mind and record findings supported by reasons, onH

all the issues arising along with the contentions put forth, andpressed by the parties for decision of the appellate court. Sittingas a court of first appeal, it was the duty of the High Court to dealwith all the issues and the evidence led by the parties beforerecording its findings. The first appeal is a valuable right and theparties have a right to be heard both on questions of law and onfacts and the judgment in the first appeal must address itself to allthe issues of law and fact and decide it by giving reasons in supportof the findings. (Vide Santosh Hazari v. Purushottam Tiwari[(2001) 3 SCC 179], SCC p. 188, para 15 and Madhukar v.Sangram [(2001) 4 SCC 756] , SCC p. 758, para 5.)”

6.2 In the case of Emmsons International Limited and Anr.(supra) while considering the scope and ambit of exercise of powersunder Section 96 of CPC by the Appellate Court and after consideringthe decisions of this Court in the cases of Madhukar and Ors. Vs.Sangram and Ors., (2001) 4 SCC 756; H.K.N. Swami Vs. IrshadBasith (Dead) by LRs., (2005) 10 SCC 243 and Jagannath Vs.Arulappa and Anr., (2005) 12 SCC 303, it is held that sitting as aCourt of First Appeal, it is the duty of the Appellate Court to deal with allthe issues and the evidence led by the parties before recording its findings.

6.3 In the case of H. Siddiqui (Dead) by LRs. (supra), it isobserved and held in paragraph 21 as under:-

“21. The said provisions provide guidelines for the appellate courtas to how the court has to proceed and decide the case. Theprovisions should be read in such a way as to require that thevarious particulars mentioned therein should be taken intoconsideration. Thus, it must be evident from the judgment of theappellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering thematerial on record. It would amount to substantial compliancewith the said provisions if the appellate court’s judgment is basedon the independent assessment of the relevant evidence on allimportant aspects of the matter and the findings of the appellatecourt are well founded and quite convincing. It is mandatory forthe appellate court to independently assess the evidence of theparties and consider the relevant points which arise for adjudicationand the bearing of the evidence on those points. Being the finalcourt of fact, the first appellate court must not record mere general AB

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Aexpression of concurrence with the trial court judgment rather itmust give reasons for its decision on each point independently tothat of the trial court. Thus, the entire evidence must be consideredand discussed in detail. Such exercise should be done afterformulating the points for consideration in terms of the saidprovisions and the court must proceed in adherence to theBrequirements of the said statutory provisions. (Vide SukhpalSingh v. Kalyan Singh [AIR 1963 SC 146] , GirijanandiniDevi v. Bijendra Narain Choudhary [AIR 1967 SC 1124] , G.Amalorpavam v. R.C. Diocese of Madurai [(2006) 3 SCC 224],Shiv Kumar Sharma v. Santosh Kumari [(2007) 8 SCC 600]Cand Gannmani Anasuya v. Parvatini Amarendra Chowdhary[(2007) 10 SCC 296 : AIR 2007 SC 2380] .)”

7. Applying the law laid down by this Court in the aforesaiddecisions, if the impugned judgment and order passed by the High Courtis considered, in that case, there is a total non-compliance of the provisionsDof the Order XLI Rule 31 CPC. The High Court has failed to exercisethe jurisdiction vested in it as a First Appellate Court; the High Court hasnot at all re-appreciated the entire evidence on record; and not evenconsidered the reasoning given by the learned Trial Court, in particular,on findings recorded by the learned Trial Court on the issue of willingness.Therefore, as such, the impugned judgment and order passed by theEHigh Court is unsustainable and in normal circumstances we would haveaccepted the request of the learned senior counsel appearing on behalfof the respondent to remand the matter to the High Court for freshconsideration of appeal. However, even on other points also, the impugnedjudgment and order passed by the High Court is not sustainable. WeFrefrain from remanding the matter to the High Court and we decide theappeal on merits.

8. It is required to be noted that as per the case of the originalplaintiff, the defendant was required to evict the tenants and hand overthe physical and vacant possession at the time of execution of the saleGdeed on payment of full sale consideration. Even in the suit notice issuedby the plaintiff, the plaintiff called upon the defendant to evict the tenantsand thereafter execute the sale deed on payment of full considerationfrom the plaintiff. Even when we consider the pleadings and the avermentsin the plaint, it appears that the plaintiff was never willing to get the saledeed executed with tenants and/or as it is. It was the insistence on theH

part of the plaintiff to deliver the vacant possession after evicting thetenants. Therefore, on the basis of the pleadings in the plaint and onappreciation of evidence, the learned Trial Court held the issue ofwillingness against the plaintiff. However, before the High Court, theplaintiff filed an affidavit stating that he is now ready and willing to getthe sale deed executed with respect to the property with tenants andunfortunately, the High Court relying upon the affidavit in the first appealconsidered that as now the plaintiff is ready and willing to purchase theproperty with tenants and get the sale deed executed with respect to theproperty in question with tenants, the High Court has allowed the appealand decreed the suit for specific performance. The aforesaid procedureadopted by the High Court relying upon the affidavit in a First Appeal bywhich virtually without submitting any application for amendment of theplaint under Order VI Rule 17 CPC, the High Court as a First AppellateCourt has taken on record the affidavit and as such relied upon thesame. Such a procedure is untenable and unknown to law. First appealsare to be decided after following the procedure to be followed under theCPC. The affidavit, which was filed by the plaintiff and which has beenrelied upon by the High Court is just contrary to the pleadings in theplaint. As observed hereinabove, there were no pleadings in the plaintthat he is ready and willing to purchase the property and get the saledeed executed of the property with tenants and the specific pleadingswere to hand over the peaceful and vacant possession after getting thetenants evicted and to execute the sale deed. The proper procedurewould have been for the plaintiff to move a proper application foramendment of the plaint in exercise of the power under Order VI Rule17 CPC, if at all it would have been permissible in a first appeal underSection 96 read with Order XLI CPC. However, straightaway to relyupon the affidavit without amending the plaint and the pleadings is whollyimpermissible under the law. Therefore, such a procedure adopted bythe High Court is disapproved.

The learned Trial Court held the issue of willingness against theplaintiff by giving cogent reasons and appreciation of evidence andconsidering the pleadings and averments in the plaint. We have alsogone through the averments and the pleadings in the plaint and onconsidering the same, we are of the opinion that the learned Trial Courtwas justified in holding the issue of willingness against the plaintiff. Theplaintiff was never ready and willing to purchase the property and/or getthe sale deed executed of the property with tenants. It was for the first AB

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Atime before the High Court in the affidavit filed before the High Courtand subsequently when the learned Trial Court held the issue of willingnessagainst the plaintiff, the plaintiff came out with a case that he is readyand willing to purchase the property with tenants. For the purpose ofpassing the decree for specific performance, the plaintiff has to proveboth the readiness and willingness. Therefore, once it is found onBappreciation of evidence that there was no willingness on the part of theplaintiff, the plaintiff is not entitled to the decree for specific performance.Therefore, in the present case, the learned Trial Court was justified inrefusing to pass the decree for specific performance.

9. The submission on behalf of the plaintiff that in the agreementCa duty was cast upon the defendant to evict the tenants and to handoverthe vacant and peaceful possession, which the defendant failed and,therefore, in such a situation, not to pass a decree for specific performancein favour of the plaintiff would be giving a premium to the defendantdespite he having failed to perform his part of the contract. The aforesaidDseems to be attractive but for the purpose of passing a decree for specificperformance, readiness and willingness has to be established and provedand that is the relevant consideration for the purpose of passing a decreefor specific performance.

10. Now, so far as the submission on behalf of the plaintiff thatEeven the defendant has not refunded the amount of Rs.3,60,001/- withinterest @ 18% as ordered by the learned Trial Court concerned, theorder passed by the learned Trial Court is very clear and the defendantis saddled with the law to pay the interest @ 18% till its realization.Therefore, the plaintiff is compensated by awarding 18% interest. Hisnot refunding the amount of part sale consideration with 18% interest asFordered by the learned Trial Court cannot be a ground to confirm theimpugned judgment and order passed by the High Court. The plaintiff assuch could have filed an execution petition to execute the judgment/decree passed by the learned Trial Court. Further, we propose to issue adirection to the appellant – original defendant directing him to refund theGamount of Rs.3,60,001/- with 18% interest from the date of the agreementtill the date of realization within a period of eight weeks from today.

11. In view of the above and for the reasons stated above, boththe appeal succeeds. The impugned judgment and order passed by theHigh Court of judicature at Madras in Appeal Suit No. 94 of 2010 isHhereby quashed and set aside and the judgment and decree passed by the learned Trial Court stands restored. However, in the facts andcircumstances of the case, the appellant herein original defendant isdirected to refund the amount of Rs.3,60,001/- with 18% interest fromthe date of agreement till realization within a period of eight weeks fromtoday. Appeals are allowed to the aforesaid extent, however, there shallbe no order as to costs.

Pending applications, if any, also stand disposed of.

Divya Pandey

Appeals allowed.

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