Andhra Pradesh High Court – Amravati
Tentu Raja Rao vs Boddu Prabhakara Rao on 8 January, 2025
APHC010192422011
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)
WEDNESDAY ,THE EIGHTH DAY OF JANUARY
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
SECOND APPEAL NO: 396/2011
Between:
Tentu Raja Rao ...APPELLANT
AND
Boddu Prabhakara Rao ...RESPONDENT
Counsel for the Appellant:
1. NIMMAGADDA SATYANARAYANA
Counsel for the Respondent:
1. S SYAMSUNDER RAO
The Court made the following:
VENUTHURUMALLI GOPALA KRISHNA RAO,J
THE HON’BLE SRI JUSTICE V.GOPALA KRISHNA RAO
SECOND APPEAL No.396 OF 2011
Judgment:
This second appeal under Section 100 of the Code of Civil Procedure
(“C.P.C.” for short) is filed aggrieved against the decree and Judgment, dated
03.02.2011 in A.S.No.106 of 2010, on the file of the Principal District Judge,
West Godavari at Eluru, setting aside the decree and Judgment, dated
18.11.2009 in O.S.No.418 of 2005, on the file of Principal Senior Civil Judge,
Eluru, by granting primary relief.
2. The appellant herein is the defendant and the 1st respondent herein is
the plaintiff in O.S.No.418 of 2005, on the file of Principal Senior Civil Judge,
Eluru. It is to be noted here that the 1st respondent/sole plaintiff died during
the pendency of this appeal and his legal representatives are brought on
record as respondent Nos.2 to 4.
3. The sole plaintiff initiated action in O.S.No.418 of 2005, on the file of
Principal Senior Civil Judge, Eluru, with a prayer for specific performance of
agreement of sale, dated 07.08.2002 against the defendant for possession of
the property and for alternative relief of refund of amount along with interest.
4. The learned Principal Senior Civil Judge, Eluru, decreed the suit with
costs granting alternative relief of refund of the sale consideration paid by the
plaintiff with interest at 12% per annum from 10.10.2002 till realization. Felt
aggrieved of the same, the plaintiff in the above said suit filed A.S.No.106 of
2010, on the file of the Principal District Judge, West Godavari at Eluru. The
learned Principal District Judge, West Godavari at Eluru, allowed the appeal
with costs, setting aside the decree and judgment passed by the learned
Principal Senior Civil Judge, Eluru, by granting primary relief. Aggrieved
thereby, the unsuccessful defendant approached this Court by way of second
appeal.
5. For the sake of convenience, both parties in the appeal will be
referred to as they are arrayed in the original suit.
6. The case of the plaintiff, in brief, as set out in the plaint averments in
O.S.No.418 of 2005, is as follows:
The defendant is the absolute owner of an extent of Ac.1-42 cents in
R.S.No.138/10 of Satyavole village i.e., schedule property. The defendant in
order to discharge his debts offered to sell the said land to the plaintiff for a
sum of Rs.2,20,875/- i.e., Rs.1,55,000/- per acre and the plaintiff agreed to
purchase the same. The defendant received a sum of Rs.1,00,000/- as
advance from the plaintiff and executed an agreement of sale, dated
07.08.2002 in favour of the plaintiff and he agreed in the agreement that he
will got measure the land and receive the balance consideration and execute
the registered sale deed on or before 10.10.2002. The plaintiff paid further a
sum of Rs.90,000/- on 29.09.2002 after measuring the land and the said
payment was also endorsed on the back of the agreement of sale. Since the
date of final payment made on 10.10.2002, the plaintiff has been requesting
the defendant to execute and register a sale deed for the schedule land, but
the defendant has been postponing with wrongful motive. The defendant
promised before the elders that he would execute a sale deed shortly stating
that the plaint schedule property and some other properties were under
mortgage to a bank and that he would discharge that mortgage debt soon. On
account of the assurance given by the defendant before elders, the plaintiff
waited hoping that the defendant would not deceive him. In the month of
September, 2005, the plaintiff met the defendant for obtaining a sale deed
from him, but he gave an evasive reply for which the plaintiff understood that
the defendant was not inclined to execute the sale deed. So, the plaintiff got
issued a legal notice on 07.10.2005 to the defendant demanding him to
execute a registered sale deed for the plaint schedule property. The defendant
received the same and kept quite. No time limit or date was stipulated in the
sale agreement, dated 07.08.2002 for its performance. Therefore, the plaintiff
is constrained file the suit.
7. The defendant filed written statement before the trial Court by
denying the averments in the plaint. The brief averments in the written
statement are as follows:
The plaintiff paid a sum of Rs.90,000/-. The cause of action in the suit is
not true and valid. Suit is barred by limitation. The sale agreement, dated
07.08.2002 is not valid under law. The defendant never executed any sale
agreement in favour of the plaintiff. The defendant is having no necessity to
sell the plaint schedule property. The defendant did not sign the sale
agreement and the said signatures are forged signatures. The defendant is in
possession of the schedule property and he paid taxes regularly to the gram
panchayat till today. The defendant further contended that the alleged sale
agreement is null and void and it is not maintainable under law.
8. On the basis of above pleadings, the learned Principal Senior Civil
Judge, Eluru, framed the following issues for trial:
(1) Whether the sale agreement, dated 07.08.2002 is true, valid and
binding upon the defendant?
(2) Whether the suit is barred by limitation?
(3) Whether the plaintiff is in possession of plaint schedule property?
(4) Whether the plaintiff is entitled to specific performance of
agreement of sale, dated 07.08.2002 alternatively refund of sale
consideration amount?
(5) To what relief?
9. During the course of trial in the trial Court, on behalf of the plaintiff,
P.W.1 to P.W.3 were examined and Ex.A.1 to Ex.A.7 were marked. On behalf
of the defendant, D.W.1 and D.W.2 were examined and Ex.B.1 to Ex.B.6 were
marked.
10. The learned Principal Senior Civil Judge, Eluru after conclusion of
trial, on hearing the arguments of both sides and on consideration of oral and
documentary evidence on record, decreed the suit with costs by granting
alternative relief of refund of amount with interest. Felt aggrieved thereby, the
plaintiff filed the appeal suit in A.S.No.106 of 2010, on the file of the Principal
District Judge, West Godavari at Eluru, wherein, the following points came up
for consideration:
1) Whether Ex.A.1 suit agreement of sale and the part payment
endorsement thereon are true and whether they are duly executed by
the defendant?
2) Whether the plaintiff has been ready and willing to perform his part of
contract?
3) Whether the plaintiff is entitled to have the primary relief as prayed for?
and
4) Whether the judgment and decree, dated 18.11.2009 passed by the
learned Principal Senior Civil Judge, Eluru in O.S.No.418 of 2005
regarding the granting of alternative relief instead of primary relief is
liable to be set aside?
11. The learned Principal District Judge, West Godavari at Eluru i.e., the
first appellate Judge, after hearing the arguments, answered the point, as
above, against the defendant and allowed the appeal filed by the plaintiff by
setting aside the decree and judgment passed by the trial Court by granting
main relief. Felt aggrieved of the same, the unsuccessful defendant in
O.S.No.418 of 2005 filed the present second appeal before this Court.
12. On hearing both side counsels at the time of admission of the
appeal, on 02.07.2012, the composite High Court of Andhra Pradesh at
Hyderabad, framed the following substantial questions of law:
1) Whether the appellate Court is justified in grating the relief of
specific performance as against the defamatory relief of refund of
consideration grated by the trial Court?
2) Whether the claim for specific performance is barred by time?
13. Heard Smt. Nimmagadda Revathi, learned counsel, on behalf of the
Sri Nimmagadda Satyanarayana, learned counsel for the appellant and heard
Sri S. Syamsunder Rao, learned counsel appearing on behalf of the
respondents.
14. Learned counsel for the appellant would contend that the Courts
below grossly erred in holding the suit was not barred by limitation. She would
further contend that in Ex.A.1 agreement of sale, it was recited the date fixed
for performance as on 10.10.2002 and so the suit should have been filed on or
before 10.10.2005, whereas the suit was filed on 15.10.2005, thereby the suit
is barred by limitation. She would further contend that the appeal may be
allowed by setting aside the decree and judgment passed by the learned 1 st
appellate Judge.
15. Per contra, learned counsel for the respondents would contend that
on appreciation of the entire evidence on record, the learned 1st appellate
Judge came to a right conclusion that the plaintiff is entitled the main relief of
specific performance of agreement of sale and there is no need to interfere
with the said finding given by the learned 1st appellate Judge and the appeal
may be dismissed by confirming the decree and judgment of the learned 1st
appellate Judge.
16. The learned 1st appellate judge came to a conclusion that Ex.A.1
agreement of sale is proved and the same is true, valid and binding on the
defendant and the suit is not barred by limitation. The learned trial Judge
negatived the main relief of specific performance of agreement of sale and
granted alternative relief of refund of advance amount. Aggrieved against the
same, the plaintiff in the suit filed the first appeal by challenging the alternative
relief of refund of advance amount granted by the learned trial Judge, but for
the reasons best known to the defendant, no cross objections or no appeal is
filed against the aforesaid findings arrived by the learned trial Judge.
17. The suit is filed based on agreement of sale under Ex.A.1 said to
have been executed by the defendant, dated 07.08.2002. The specific case
of the defendant is that the agreement of sale is a forged document and the
same is not valid under law and the defendant never executed any agreement
of sale in favour of the plaintiff and he has no necessity to alienate the plaint
schedule property to the plaintiff. Since the defendant has taken a plea in the
written statement itself that Ex.A.1 agreement of sale is not at all executed by
the defendant and the suit agreement of sale is a fabricated document,
therefore, the burden is upon the plaintiff to prove Ex.A.1 agreement of sale by
producing oral and documentary evidence on record. To discharge the
burden of the plaintiff, he relied on the evidence of P.W.1 to P.W.3. P.W.1 is
the plaintiff; P.W.2 and P.W.3 are the attestors in Ex.A.1 agreement of sale.
The evidence of P.W.2 and P.W.3 clearly proved about the execution of
Ex.A.1 agreement of sale. On appreciation of the entire evidence on record,
the learned trial Judge came to a conclusion that Ex.A.1 agreement of sale is
proved by the plaintiff. It is also relevant to say that the defendant admitted
the signature on Ex.A.1 agreement of sale belongs to him and the signature
on the second page of Ex.A.1 agreement of sale and the signature on the third
page of Ex.A.1 agreement of sale are also belong to him. The defendant
pleaded in the written statement itself that the suit agreement of sale is a
fabricated document, but the above admissions of the defendant clearly
proves that Ex.A.1 agreement of sale is executed by the defendant.
18. The law is well settled that grant of relief of specific performance of
agreement of sale is not an automatic and it is a discretionary relief, the same
has to be required to be exercised judiciously, sound and reasonably. As per
the recitals of Ex.A.1 agreement of sale, a specific date was fixed for
performance of the contract by both parties in Ex.A.1 agreement of sale.
There was specific recital in Ex.A.1 agreement of sale that by 10.10.2002 the
plaintiff has to pay the remaining balance sale consideration and to obtain a
registered sale deed. The plaintiff also proved about the part payment
endorsements on the back of Ex.A.1 agreement of sale.
19. “The Courts should bear in mind that when the parties
prescribed certain time limit for taking steps by one party or the other
party, it must have some significance and the said time limit cannot be
ignored altogether.”
The legal position in this regard is no more res-intergra and the same
bas been well settled by the Apex Court in K.S. Vidyanadam and others vs.
V.S. Vairavan1 that;
“the Court should bear in mind that when the parties prescribed certain
time limit for taking steps by one party or the other party, it must have
some significance and that the said time limit cannot be ignored
altogether on the ground that the time has not been made the essence of
the contract relating to immovable property.”
In a case of Shenbagam and others vs. K.K. Rathinavel2, the Apex
Court held as follows:
“True enough, generally speaking, time is not of the essence in an
agreement for the sale of immoveable property. In deciding whether to
grant the remedy of specific performance, specifically in suits relating
to sale of immovable property, the courts must be cognizant of the
conduct of the parties, the escalation of the price of the suit property,
and whether one party will unfairly benefit from the decree. The
remedy provided must not cause injustice to a party, specifically when
they are not at fault.”
In a case of Gaddipati Divija and another vs. Pathuri Samrajyam
and others3, the Apex Court held as follows:
1
(1997) 3 SCC 1
2
2022 SCC OnLine SC 71
“Before parting with the judgment, we would like to clarify another
aspect, i.e., with regard to whether time is of the essence in the sale
agreement in the present case or not. In Katta Sujatha Reddy vs.
Siddamsetty Infra Projects (P) Ltd., (2023) 1 SCC 355, this Court was
dealing with a similar question with respect to a sale agreement for an
immovable property, while referring to an earlier judgment in Chand
Rani v. Kamal Rani, (1993) 1 SCC 519 it was reiterated that in sale of
immovable property there is no presumption that time is the essence
of the contract, however, the court may infer performance in a
reasonable time if the conditions are evident from the express terms
of the contract, from the nature of the property, and from the
surrounding circumstances.”
The law on the subject of specific performance of contract is quite clear
in The Holiness Acharya Swami Ganesh Dassji vs. Sita Ram Thapar4, the
Apex Court draw the attention between readiness to perform the contract and
willingness to perform the contract. It was observed that by readiness may be
meant the capacity of the plaintiff to perform the contract which was included
his financial position to pay the purchase price. As far as the willingness to
perform the contract is concerned, the conduct of the plaintiff has to be
properly scrutinized along with the attendant circumstances.
In the case on hand, both the Courts below came a concurrent finding
that Ex.A.1 agreement of sale is executed by the defendant and the same is
proved by the plaintiff. As noticed supra, no cross objections or no appeal is
filed by the defendant against the findings arrived by the learned trial Judge in
1st appellate Court. The first appeal is filed by the plaintiff.
20. Learned counsel for the appellant would contend that the date of
agreement of sale is 07.08.2002. She would further contend only ground the
appellant is raising in the second appeal is that the suit is barred by limitation
3
2023 SCC OnLine SC 442
4
(1996) 4 SCC 526
and the date of agreement of sale is 07.08.2002 and the date fixed for
performance of contract is 10.10.2005. So, the suit has been filed on or before
10.10.2005, but the suit was filed on 15.10.2005 and that the suit is hopelessly
barred by limitation.
I have verified the original plaint. In the plaint itself, it was mentioned at
page-5 bottom „NOTE‟ that “as the last day for filing this suit is 10.10.2005
fell during Dusserah holidays, the suit is filed on reopening day i.e., on
15.10.2005, immediately after Dusserah Vacation. Therefore, the suit is
filed within a period of limitation”.
Admittedly, in the case on hand, as per the case of the appellant the
specific date is fixed for performance of the contract which is on 10.10.2002.
Since 10.10.2005 fell during Dusserah Vacation, the suit is filed on the
reopening day i.e., on 15.10.2005 immediately after Dusserah Vacation.
Therefore, the suit is not barred by limitation. Unfortunately, both the learned
trial Judge as well as the learned 1st appellate Judge failed to consider the
said aspect.
21. The Schedule-II to the Limitation Act, 1963 prescribes the period of
limitation. Article 54 of the Schedule prescribes the period of limitation for a
suit for specific performance of a contract:
Description of suit Period of Time from which period begins to run
limitationThe date fixed for the performance,
54. For specific Three years
or, if no such date is fixed, when the
performance of a
plaintiff has notice that performance is
contract.
refused.
The provision has two parts. The first part deals with situations where the
contract fixes a date for performance. The period of limitation of three years
runs from the date fixed for completion of performance. The second part
deals with situations where the contract does not fix a date for the
performance of the contract.
In the case on hand, the date fixed for performance of contract is
10.10.2002 which fell during Dusserah Holidays and that the suit is filed
immediately on reopening day i.e., 15.10.2005 immediately after Dusserah
Vacation and that the suit is filed within a period of limitation.
22. A plea of limitation is a mixed question of law and fact. The question
as to whether a suit for specific performance of contract will be barred by
limitation or not would not only depend upon the nature of the agreement but
also the conduct of the parties and also as to how they understood the terms
and conditions of the agreement. It is not in dispute that the suit for specific
performance of contract would be governed by Article 54 of the Limitation Act,
1963. While determining the applicability of the first or the second part of the
said provision, the court will firstly see as to whether any time was fixed for
performance of the agreement of sale and if it was so fixed, whether the suit
was filed beyond the prescribed period unless any case of extension of time
fixed for performance was pleaded and established.
As noticed supra, in the case on hand, the specific date is fixed for
performance of contract is 10.10.2002 which fell during Dusserah Vacation
and the suit is filed immediately after reopening day of Dusserah Vacation i.e.,
15.10.2005, therefore, the suit has not been barred by limitation.
23. Though both the Courts below gave concurrent finding that the suit
is not barred by limitation, failed to consider that the suit has to be filed on
10.10.2005 which fell in Dusserah Vacation and that the suit is filed on
15.10.2005 i.e., reopening day, immediately after Dusserah Vacation. In the
case on hand, both the Courts below came to a conclusion that the suit is not
barred by limitation, but failed to consider that the last date of filing of the suit
i.e., 10.10.2005 fell in Dusserah Vacation and that the suit is filed immediately
on reopening day on 15.10.2005 and the suit is not barred by limitation.
24. The High Court in exercise of its power under Section 100 of the
Code of Civil Procedure cannot make a fresh appraisal of the evidence and
come to a different finding contrary to the finding recorded by the 1st appellate
Court. The finding on the question of limitation recorded by the 1st appellate
Court on appraisal of evidence after taking into consideration the entire
circumstances in the case is a finding of fact which cannot be set aside by the
High Court in the exercise of power under Section 100 of the Code of Civil
Procedure. Therefore, there are no merits in the second appeal and the
second appeal is liable to be dismissed.
25. In the result, the second appeal is dismissed confirming the decree
and judgment, dated 03.02.2011 in A.S.No.106 of 2010, on the file of the
Principal District Judge, West Godavari at Eluru. Each party do bear their own
costs in the appeal.
As a sequel, miscellaneous petitions, if any, pending in the appeal
shall stand closed.
_________________________
V. GOPALA KRISHNA RAO, J
Date: 08.01.2025
PGR
[ad_1]
Source link