1 SA 67.2011 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 67 OF 20 11 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mr.S.B.Talekar, Advocate for the appellant. Mr.G.V.Wani, Advocate for the respondent. .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 25/04/2011 PER COURT : 1. This is the Appeal by the original defendant. The plaintiff had filed Suit for specific performance of contract on the basis of agreement of sale dated 22/5/1992. The trial Court dismissed the Suit holding that the transaction in effect was not that of agreement of sale. The plaintiff preferred Appeal. The appellate Court allowed the Appeal granting decree for specific performance. Aggrieved thereby, the defendant has filed the present Appeal. 2. Mr. S.B.Talekar, the learned counsel for the appellant submits that the lower appellate court could not have reversed the finding of fact arrived 2 SA 67.2011 at by the trial Court, which was passed on appreciation of evidence. It was also contended by the learned counsel that the plaintiff had claimed himself to be in possession of the property, but the lower appellate Court had granted decree for possession. The learned counsel further contends that in fact against the order passed by the District Court, the Appeal from Order was preferred to the High Court and during the pendency of the same, amendment was carried out by the plaintiff. When the Appeal from Order was pending, the lower appellate court should not have allowed the amendment. For the said purpose, the learned counsel relies on the Judgment of the learned Single Judge of this Court in the case of Kishor Bhikansingh Rajput V/s Preeti Kishor Rajput reported in 2007 (3) Bom.C.R. - 279. The learned counsel contends that there is no evidence on record to prove the payment of Rs. 45,000/- by the plaintiff to the defendant. There is contradictory evidence in this regard, as such the same could not have been relied. Twice the plaintiff had made amendment about readyness and willingness, which shows that the plaintiff was not ready and willing to perform his part of the contract. All these anomalies have not been taken into consideration by the lower appellate Court. 3 SA 67.2011 3. Per contra, Mr. Wani, the learned counsel for the respondent submits that in fact the amendment was made in the plaint seeking relief of possession. The said amendment was allowed on 15/2/2006, whereas in Appeal from Order the stay was granted to the further proceeding on 26/2/2006. According to the learned counsel, the defendant had deleted his defence of transaction being the security transaction. As such, the finding of the trial court about the nature of transaction become redundant. According to the learned counsel, the witnesses examined by the plaintiff have substantiated the case and the Court has discussed the evidence on record. 4. With the assistance of the learned counsel for the respective parties, I have gone through the Judgments. 5. The first appellate court is the last fact finding court., which has got the power of re- appreciation of evidence in light of Section 107 of the Code of Civil Procedure. The District Court has observed that the scribe of the document has specifically deposed that the defendant had told him that he has received earnest amount of Rs. 45,000/-. The case of the defendant that he has received only Rs. 12,500/-, could not be proved by 4 SA 67.2011 the defendant. A condition in the agreement was imposed upon the plaintiff that if he fails to pay balance amount of Rs. 12,500/- by 30/4/1993, then the defendant shall be entitled to forfeit the earnest amount. The attesting witness has also corroborated the case that the total consideration was of Rs. 57,500/- and that the defendant has received Rs. 45,000/-. 6. The District Court on evaluation of the evidence has come to the plausible conclusion. The defendant on his own volition after the Judgment of the trial court, amended his Written Statement and deleted the defence of the transaction being the security transaction. The defendant gave up his positive defence. In such circumstances, when the execution of the agreement was proved, the lower appellate court did not commit any error in granting the relief of specific performance. The lower appellate court had laid down the condition that the plaintiff shall pay the remaining balance consideration of Rs. 12,500/- and also should deposit the encumbrance to defendant no. 2 within two ( 2 ) months. It is informed by Mr. Wani, the learned counsel for the respondent that the plaintiff has deposited the amount of Rs. 1,00,000/- ( Rupees One Lac only ) i.e. the remaining consideration amount of Rs. 12,500/- 5 SA 67.2011 and the encumbrance amount. 7. In light of the above, the Second Appeal being devoid of any substantial question of law is dismissed, however, with no order as to costs. 8. In view of dismissal of Second Appeal, the Civil Application does not survive and is dismissed. [ S.V. GANGAPURWALA,J. ] KNP/SA 67.2011