Full Judgment Text
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 4453 OF 2009
Kamal Kumar ….Appellant(s)
VERSUS
Premlata Joshi & Ors. .…Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. This appeal is directed against the final judgment
and order dated 08.01.2008 passed by the High Court
of Madhya Pradesh at Jabalpur in F.A. No.808 of 2000
whereby the Division Bench of the High Court
dismissed the first appeal filed by the appellant herein
and affirmed the judgment and decree dated
31.08.2000 passed by the Additional District Judge,
Harda in Civil Suit No.19A/97.
Signature Not Verified
Digitally signed by
ANITA MALHOTRA
Date: 2019.01.07
17:40:12 IST
Reason:
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2. Few facts need mention infra for the disposal of
this appeal.
3. The appellant is the plaintiff whereas the
respondents are the defendants in the civil suit out of
which this appeal arises.
4. The appellant filed the civil suit against the
respondents claiming specific performance of the
contract in relation to the suit land. The respondents
contested the suit.
5. By judgment/decree dated 31.8.2000, the Trial
Court dismissed the suit. The plaintiff felt aggrieved
and filed first appeal before the High Court of M.P. at
Jabalpur. By impugned judgment, the High Court
dismissed the appeal and affirmed the judgment and
decree of the Trial Court, which has given rise to filing
of this appeal by way of special leave by the
appellant(plaintiff) before this Court.
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6. Heard Mr. Navin Prakash, learned counsel for the
appellant and Mr. Sumit Kumar Sharma, learned
counsel for the respondents.
7. Having heard the learned counsel for the parties
and on perusal of the record of the case, we find no
merit in this appeal.
8. In our considered opinion, the concurrent
findings of facts recorded by the two Courts below on
all the material issues are binding on this Court. It is
much more so when we are unable to notice any kind
of perversity or illegality in the findings.
9. In other words, the findings apart from being
concurrent are such that they are capable of being
recorded on appreciation of evidence adduced by the
parties. These findings are neither against the
pleadings nor the evidence and nor any principle of
law. These findings are also not shown to be perverse
to the extent that no judicial person can ever record
such findings.
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10. It is a settled principle of law that the grant of
relief of specific performance is a discretionary and
equitable relief. The material questions, which are
required to be gone into for grant of the relief of
specific performance, are First, whether there exists a
valid and concluded contract between the parties for
sale/purchase of the suit property; Second, whether
the plaintiff has been ready and willing to perform his
part of contract and whether he is still ready and
willing to perform his part as mentioned in the
contract; Third, whether the plaintiff has, in fact,
performed his part of the contract and, if so, how and
to what extent and in what manner he has performed
and whether such performance was in conformity with
the terms of the contract; Fourth, whether it will be
equitable to grant the relief of specific performance to
the plaintiff against the defendant in relation to suit
property or it will cause any kind of hardship to the
defendant and, if so, how and in what manner and
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the extent if such relief is eventually granted to the
plaintiff; and lastly, whether the plaintiff is entitled for
grant of any other alternative relief, namely, refund of
earnest money etc. and, if so, on what grounds.
11. In our opinion, the aforementioned questions are
part of the statutory requirements (See Sections 16 (c),
20, 21, 22, 23 of the Specific Relief Act, 1963 and the
forms 47/48 of Appendix A to C of the Code of Civil
Procedure). These requirements have to be properly
pleaded by the parties in their respective pleadings
and proved with the aid of evidence in accordance with
law. It is only then the Court is entitled to exercise its
discretion and accordingly grant or refuse the relief of
specific performance depending upon the case made
out by the parties on facts.
12. In the case at hand, we find that the two Courts
below have gone into these questions in the light of
pleadings and evidence and recorded a categorical
finding against the plaintiff holding that the plaintiff
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was neither ready and nor willing to perform his part
of the contract and, therefore, he was not entitled to
claim the relief of specific performance of the contract
against the defendants in relation to the suit land. It
was also held that the plaintiff was not entitled to
claim any relief of refund of earnest money because it
was liable to be adjusted as agreed between them.
13. In other words, both the Courts below held that
the plaintiff has failed to prove his readiness and
willingness to perform his part of the contract. The
issue of readiness and willingness, in our view, is the
most important issue for considering the grant of
specific performance of the contract and the same
having been held by the two Courts below on
appreciation of evidence against the plaintiff, it is
binding on this Court. It being essentially a question
of fact, this Court is not inclined to again appreciate
the entire evidence while hearing the appeal under
Article 136 of the Constitution. It is more so when we
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find that the appellant was also not able to point out
any material perversity or/and illegality in the finding
so as to call for any interference therein by this Court.
14. In view of the foregoing discussion, we find no
merit in this appeal. The appeal thus fails and is
accordingly dismissed.
…...…...................................J.
[ABHAY MANOHAR SAPRE]
...…...……..............................J.
[INDU MALHOTRA]
New Delhi;
January 07, 2019
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