1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR SECOND APPEAL NO. 28 /2009 (Shashidharan Gopalan Chittedath vs.Dhanjibhai Waljibhai Sorthia ) ..................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ..................................................................................................................................................................... Mr Puri Adv.h/for Shri Shrikant Deo, Adv.for appellant: Mr R.K.Thakkar Adv.for Respondent CORAM : A.P. BHANGALE, J. DATED : 1 st July, 2010. 1. Heard. By this Appeal, the appellant has challenged the judgment and decree dated 17.09.2008 passed by learned District Judge-5 Nagpur, whereby the appeal came to be dismissed which was preferred against the judgment and order in Regular Civil Suit No. 256/1988 decided by learned Civil Judge J.D. Umred on 12th March, 1998. 2. The Appeal is taken up for hearing at the stage of admission itself, with the consent of learned counsel appearing for the parties. 3. It seems that Regular Civil Suit was instituted on the ground that there was an oral agreement to sell Welding Shop for a sum of Rs. 10,000/-. According to plaintiff, the defendant had intended to sell his Welding Shop some time in the year 1978 and the plaintiff had desired to purchase it ; but the plaintiff did not have the amount of consideration. Therefore, he assured to give Rs. 10,000/- by installments as per his convenience and 2 within three years. The plaintiff had deposited the amount with one Raojibhai Patel and the plaintiff was put in possession of the shop since 1.6.1978 and he had deposited sum of Rs. 16,545 with Raojibhai Patel, which has been taken by the defendant. It is contended that in the year 1984, the plaintiff had contacted the defendant to return the excess amount paid and to finalise the matter ; but the defendant had obtained signature of the plaintiff saying that it is required so as to transfer premises in the name of the plaintiff. It is contended that in the year 1986 there was meeting between the plaintiff and the defendant in presence of one Raojbhai Patel, Jasubhai Patel, Hamid Khan and Khapekar Tailor. The plaintiff had asked the defendant to execute the sale deed and return the excess amount taken from Raojibhai. The defendant has required more amount and did not return the excess amount while plaintiff wanted to get the sale deed executed. 4. On 20.10.1986 after the plaintiff had received notice from the defendant, he gave reply to the notice at the address of defendant at Mumbai. Thereafter one Mukund Dhanjibhai Sorthia filed Civil Suit against Shashidharan in RCS No 313/1986 on the basis that tenancy of the present appellant( plaintiff) was terminated and possession was sought on the basis of termination of tenancy. However, since the suit was not filed by the original landlord, but his son, it was withdrawn as the plaintiff in that suit was not landlord 3 of the suit site. It is also contended that the plaintiff had asked the defendant to execute the sale deed but the defendant refused and, therefore, suit was filed for specific performance of the oral agreement/contract. The trial Court found that the plaintiff was unable to prove that the defendant has agreed to sell suit property to him for a consideration of Rs.10,000/-. Further it was held that the amount which was deposited with Raojibhai Patel of Umred in the sum of Rs. 16,545/- was not towards consideration but towards arrears of rent. It was also held in favour of the defendant that the plaintiff had executed a promissory note/ agreement of Rs.10,255/- for the arrears of rent of the suit property for the period from 1.6.1981 to 30.4.1984. Thus, the case of the plaintiff for specific performance of oral contract was disbelieved and instead it was found that their relationship is as a tenant and landlord in respect of the suit shop. 5. The plaintiff who was dissatisfied with dismissal of the suit in RCS No. 256/1988, preferred Regular Civil Appeal No.277/1998. The lower Appellate Court by well-reasoned judgment and order disposed of the appeal by dismissing the same, after making reference to the facts and legal position in this regard. In fact documentary evidence i.e. letter Exh.53 dated 6.9.1978 and Exh.54 dated 31.10.1981 which were written by the plaintiff to the defendant were taken into consideration on the ground that they did not reflect anything about the alleged agreement between the 4 plaintiff and the defendant in respect of the suit shop. Thus, it was found that had there been any oral agreement between the plaintiff and defendant as alleged in respect of the suit shop, the plaintiff would have mentioned it in letters Exhs. 53 and 54. It was also admitted in the course of evidence that the plaintiff that the value of the suit shop in the year 1978 was Rs. 3000/-, therefore, it was held not reliable that he would agree to purchase the suit shop for a sum of Rs.10,000/- in the year 1978, as alleged. It was also held that the suit on the basis of oral agreement was beyond limitation. Be that as it may; the relief in the nature of specific performance is a discretion and not a matter of course, as held by the Apex Court in V R Sudhakara Rao and others vs. T.V. Kameswari reported in 2008 (1) Mh.L.J. Page 1; more particularly para no.16 thereof, in which it has been held that the relief of specific performance is discretionary relief and except the oral evidence, there can be no clear evidence to prove several of the essential terms of oral agreement which have been taken note by the High Court. The grant of relief of specific performance is to be exercised in objective manner as both are parties are required to be ready and willing respectively to perform their part of the contract and show their bona fides by offering their readiness and wiling to perform their respective part of the contract. Be that as it may, in the present case, both the trial Court as well as first Appellate Court by concurrent 5 findings held against the plaintiff that he failed to prove oral agreement as alleged. Under these circumstances there are are concurrent judgments against the plaintiff/ appellant which cannot be dislodged on facts at the stage of Second Appeal in view of the restrictions under section 100 of CPC it is not within the domain of the High Court to investigate the ground in which findings were arrived at by last court of facts i.e. first Appellate Court. It is settled position of law that right of appeal is neither natural no inherent right attached to the litigation. Being substantive statutory right, it has to be regulated according to law in force. The conditions must be strictly fulfilled before Second Appeal can be entertained. Concurrent findings, however erroneous, cannot be disturbed by the High Court in exercise of power under section 100 CPC. The concurrent findings of facts by the Courts below do not, in my opinion, give rise to substantial question of law so as to admit this Appeal. Hence Appeal is dismissed. JUDGE sahare