IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 20TH OCTOBER 2011 / 28TH ASWINA 1933 AS.No. 238 of 1999(D) --------------------- OS.150/1993 of ADDL.SUB COURT, PALAKKAD .................... APPELLANT(S): DEFENDANT:- -------------- RAMAN, SON OF KITTA ALIAS KITTAN, RESIDING AT VALLANGHI VILLAGE, VALLANGHI DESOM, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.P.R.VENKITESH SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN SRI.P.T.GIRIJAN SMT.USHA NARAYANAN RESPONDENT(S): PLAINTIFF:- --------------- SETHUMADHAVAN, S/O. KRISHNAN, RESIDING AT DEVI NILAYAM, VALLANGHI DESOM, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.O.RAMACHANDRAN NAMBIAR SRI.P.BALAKRISHNAN. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 14-09-2010, ALONG WITH AS NO. 254 OF 1999 THE COURT ON 20-10-2011 DELIVERED THE FOLLOWING: C.M.P. Nos.1796/1999 & 5043/1999 in A.S. No. 238/1999 Dismissed 20-10-2011 Sd/-P.Q.Barkath Ali, Judge. /true copy/ P.S. to Judge. P.Q.BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= A.S.Nos. 238 & 254 of 1999 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 20th day of October, 2011 JUDGMENT Both these appeals arise out of a common judgment and decree passed by the Sub Court, Palakkad in O.S. Nos.150 and 430 of 1993. In A.S.No.238/1999 defendant in O.S. No.150/1993 challenges the judgment and decree dated August 28, 1998 of the lower court granting a decree for specific performance of an oral agreement for sale of the plaint schedule property. In A.S. No.254/1999 the plaintiff in O.S. No.430/1993 who is the defendant in O.S. 150/1993 challenges the judgment and decree of the lower court in O.S. No.430/1993 dismissing the suit for damages and mandatory injunction. A.S. No.238/1999 (O.S. No.150/1993):- 2. The case of the plaintiff in O.S. No.150/1993, as testified by him as PW1 before the lower court and as detailed in the plaint, in brief, is this:- AS 238/1999 and con. case 2 Properties described in plaint schedule measuring 5 cents out of 53 cents in Sy.No.501/5 and ¾ cent in Sy.No.501/7 with a building thereon belong to the appellant/defendant in O.S.No.150/1993. The defendant has agreed orally to sell the plaint schedule properties to the plaintiff on March 1, 1993 and the plaintiff has agreed to purchase the same for a consideration of Rs.75,000/-. Rs.25,000/- was paid as advance by the plaintiff to the defendant and the defendant handed over possession of the property to the plaintiff. The agreement was to execute the sale deed on or before March 10, 1993. The plaintiff carried out repairs of the building in the property spending about Rs.10,000/-. The defendant handed over necessary papers to the plaintiff to prepare the sale deed. Consequently, the plaintiff purchased stamp papers worth Rs.7,500/- and got the sale AS 238/1999 and con. case 3 deed prepared. The defendant came to the office of the document writer and signed the sale deed and promised to come to the Sub Registrar’s Office to register the same. But, on March 10,1993 the defendant failed to appear before the Sub Registrar for registering the document. On March 15, 1993 the plaintiff produced the sale deed for compulsory registration before the District Registrar, Palakkad. The defendant did not turn up. Therefore, there may be a decree for specific performance of the agreement for sale of the plaint schedule properties. In the alternative there may be a decree for recovery of Rs.25,000/- being the advance amount paid, Rs.7,500/- being the amount spent for purchasing non judicial stamp papers, Rs.10,000/- being spent for effecting repairs and Rs.25,000/- by way of damages together with interest @ 18% per annum. AS 238/1999 and con. case 4 3. The case of the defendant in O.S.No.150/1993, as testified by him as DW1 before the lower court and as stated in the written statement, in brief, is this:- The defendant never entered into an agreement with the plaintiff to sell the plaint schedule properties. He never handed over possession of the plaint schedule properties to the plaintiff. Plaintiff is the son of one Krishnan who is the maternal uncle of the defendant. The defendant studied only up to IV Standard and he is unable to read or write. Therefore, the plaintiff was helping him in all the matters. The defendant entrusted all the documents relating to the plaint schedule properties to the plaintiff to conduct cases against the tenant in occupation of his building. The plaintiff wanted the defendant to sell the plaint schedule property to him, but the defendant refused. Under the pretext of signing as a witness in a document, AS 238/1999 and con. case 5 the plaintiff obtained signature of the defendant in stamp papers. It was only when the Registrar read over the document; he came to know that it was the sale deed in respect of the plaint schedule property. The defendant issued a lawyer notice to the Registrar and thus stopped the registration. Maintenance work of the plaint schedule properties was done by the defendant and the plaintiff was only supervising the same . That being so, the suit for specific performance of the contract has to be dismissed. 4. The plaintiff in O.S. No.150/1993 filed a rejoinder contending thus:- The plaint schedule properties were purchased by the plaintiff’s father in the name of the defendant. Plaintiff’s father has effected necessary repairs in the building spending about Rs.10,000/-. Out of the three rooms occupied by the tenants, one of the tenant surrendered AS 238/1999 and con. case 6 possession of one room to the plaintiff’s father. Father of the plaintiff initiated eviction proceedings against other two tenants in the name of the defendant. In pursuance of execution proceedings two tenants (Parameswaran Nair and Subbayyan Chettiar) handed over the keys of the rooms to the plaintiff’s father. Later, Parameswaran Nair filed an application and obtained an order for re-delivery and the plaintiff’s father settled the matter. Thereafter, father of the plaintiff requested the defendant to execute the sale deed in his favour, but the defendant demanded Rs.75,000/- . Thereafter through mediators Jayarajan Nair, Soman (PW5), the then Panchayat President of Nemmara, and B. Balan, the document writer (PW2), the matter was settled and the plaintiff has agreed to pay Rs.75,000/- to the defendant and the defendant has agreed to execute the sale deed. On March 3, AS 238/1999 and con. case 7 1993 Rs.25,000/- was paid as advance. After receiving the documents from the Rent Control Court, the defendant handed over the entire documents to the plaintiff for preparing the sale deed. After affixing his signature in the sale deed the defendant failed to turn up before the Registrar. That being so, the suit has to be decreed. A.S.No.254/1999 (O.S.No.430/1993):- 5. In this appeal the plaintiff who was the defendant in O.S. No.150/1993 challenges the judgment and decree of the lower court dismissing the suit for damages and mandatory injunction. In this case he raised all the contentions which were raised by him in O.S.No.150/1993 as defendant. According to him, to conduct court proceedings regarding eviction of the tenants, he had handed over possession of all the documents to the respondent (plaintiff in O.S. No.150/1993) which was misused by him and created as a sale deed in respect of the AS 238/1999 and con. case 8 plaint schedule properties. The appellant/defendant in O.S.No.150/1993 claimed damages to the tune of Rs.30,000/- and also requested for a decree directing the respondent to return the original sale deed No.1624/85 in respect of the plaint schedule property. The respondent in this case who was the plaintiff in O.S. No.150/1993 raised similar contentions as he has raised in O.S. No.150/1999. 6. As both the suits are between the same parties and are in respect of the same property, both these suits were jointly tried by the lower court. The evidence was recorded in O.S. No.150/1993. On the side of the plaintiff in O.S.No.150/1993 PWs.1 to 6 were examined and Exts.A1 to A11 and Ext.X1 were marked. On the side of the defendant in that suit DWs.1 to 4 were examined and Exts.B1 to B12 (a) were marked. On an appreciation of the evidence, the lower court found that the defendant in O.S. No.150/1993 has agreed to sell the plaint schedule property to the plaintiff in O.S.No.150/1993 for a consideration of Rs.75,000/-, that Rs.25,000/- was paid in advance, that the AS 238/1999 and con. case 9 defendant in O.S. No.150/193 did not appear before the Registrar to register the document and that therefore, the plaintiff in O.S.No.150/1993 is entitled to a decree for specific performance of the agreement for sale in respect of the plaint schedule properties and decreed the suit. The lower court has also found that the plaintiff in O.S.No.430/1993 (defendant in O.S.No.150/1993) is not entitled to any damages or mandatory injunction as claimed and dismissed O.S.No.430/1993 with costs. The defendant in O.S.No.150/1993 who is the plaintiff in O.S. No.430/1993 has come up in appeal challenging the said judgment and decree. 7. The learned counsel for the appellant in A.S.No.254/1999 argued that the plaintiff in O.S.No.150/1993 has failed to prove the alleged oral agreement to sell the plaint schedule properties and that even if the same was proved, the lower court should have granted a decree for recovery of the advance amount paid with interest and that the lower court should have granted a AS 238/1999 and con. case 10 decree for damages and mandatory injunction as prayed for by the plaintiff in O.S. No.430/1993 (defendant in O.S.No.150/1993). 8. The following points arise for consideration:- 1) Whether the defendant in O.S. No.150/1993 has agreed to sell the plaint schedule properties to the plaintiff in O.S.No.150/1993 for a sale consideration of Rs.75,000/- and whether the defendant has received advance amount of Rs.25,000/-? 2) Whether decree for specific performance of the agreement for sale in respect of the plaint schedule property in O.S. No.150/1993 granted by the lower court can be sustained? 3) Whether decree of the lower court in O.S.No.430/1993 dismissing the suit and refusing to award damages or mandatory injunction as prayed for can be sustained? A.S.No.238/1999 (O.S. No.150/1993):- 9. The case of PW1, the plaintiff in O.S.No.150/1993, AS 238/1999 and con. case 11 is that on March 3, 1993, DW1, the defendant therein, has orally agreed to sell the plaint schedule properties to PW1 for a sale consideration of Rs.75,000/- out of which Rs.25,000/- was paid in advance, that agreement was to pay the balance amount and execute the sale deed by March 10, 1993 and that though DW1 has signed in the sale deed prepared by PW1 (Ext.A2), DW1 has refused to appear before the Registrar to register the same. The case of DW1 was of total denial. As DW1 he would say that he never agreed to sell the plaint schedule properties to PW1 or received any amount. But he admitted that he has signed in Ext.A2. According to him, he has signed in Ext.A2 believing to be an attesting witness in that document without knowing its contents. Therefore, the first question for consideration is whether the alleged agreement for sale of plaint schedule properties by DW1 is proved. On going through the evidence adduced by both parties before the lower court and perusing the records, I am of the view that PW1 has succeeded in proving the said oral agreement for AS 238/1999 and con. case 12 sale of the plaint schedule properties by DW1 and execution of Ext.A2. 10. PW1, the plaintiff, testified in terms of the plaint before the lower court. His evidence on this aspect is supported by PWs.2 and 5. PW2 P. Balan is the scribe who prepared Ext.A2. He testified that it was on the instruction of PW1 and DW1 he prepared Ext.A2 and DW1 had signed therein in his presence. PW5 N. Soman is the President of Nenmara Panchayat. He would say that himself and one Jayarajan Nair mediated the transaction, that DW1 has agreed to sell the plaint schedule properties to PW1 for a sale consideration of Rs.75,000/-, that Rs.25,000/- was paid as advance and the balance sale consideration was agreed to be paid on the date of the registration of sale deed and that he signed in Ext.A2 from the office of PW2 and DW1 signed therein in his presence. 11. I have gone through the evidence of PWs.1, 2 and 5. No serious discrepancies or inconsistence were brought out during their cross-examination to discredit their AS 238/1999 and con. case 13 evidence. They have consistently testified that on March 3, 1993 DW1 has agreed to sell the plaint schedule properties to PW1 for a sale consideration of Rs.75,000/-, that Rs.25,000/- was paid in advance and that Ext.A2 the sale deed was prepared on the instruction of PW1 and DW1, that DW1 signed therein from the office of PW2 in their presence and that subsequently DW1 did not appear before the Registrar for registering the same. PWs.2 and 5 had absolutely no enmity towards DW1 to testify against him or any motive to support PW1. Therefore, in my view the lower court is perfectly justified in believing their evidence. 12. The version of DW1 that he signed in Ext.A2 as an attesting witness without knowing its contents appears to be highly improbable. DW1 admitted that he was conducting wholesale business of grocery. He has also executed other sale deeds. That being so, it is very difficult to believe that he has signed in Ext.A2 without knowing its contents and believing that he was signing as an attesting witness. AS 238/1999 and con. case 14 13. Further PW1 produced building tax receipts for the period 1990 to 1993 (Exts.A7, A7(a) to A7(d), Ext.A8, Ext.A8(a) to A8(e) and Ext.A9 and A9(a). PW1 testified that these receipts were handed over to him by DW1 to prepare the sale deed. DW1 has no explanation to offer how PW1 came into possession of these receipts. All these facts probabilise the case of PW1 regarding the agreement for sale of the plaint schedule properties by DW1. 14. PW1 has a case that the plaint schedule property was purchased by the father of PW1 (Krishnan) in the name of DW1. Ext.A3 is the said sale deed dated September 13, 1985 executed by PW3 P.C.Kunchappu and his son Raghavan. The plaint schedule properties are two storied building in front of the house of Krishnan. PW1 would say that as those buildings were occupied by tenants, it was purchased by Krishnan in the name of DW1, so that those tenants can be evicted on the ground of bona fide need. Prior to the execution of Ext.A3 there was an agreement Ext.A1 dated September 9, 1985 executed by PW3 AS 238/1999 and con. case 15 Kunchappu and his son Raghavan in favour of Krishnan agreeing to sell the plaint schedule properties for a sale consideration of Rs.45,000/- and an advance of Rs.21,000/- was paid. PW3 testified that the said advance as well as sale consideration was paid to him by Krishnan. The defendant as DW1 admitted that the entire sale consideration of Rs.45,000/- was paid by Krishnan to PW3. According to DW1, he handed over the amount to Krishnan and Krishnan Paid it to PW3. The said story of DW1 appears highly improbable. He has no explanation for not paying the sale consideration directly to PW3. Evidence of PW3 and Ext.A1 clearly prove the case of PW1 that the plaint schedule properties were purchased by Krishnan in the name of DW1. 15. PW1 has deposed that at the time of the purchase of the plaint schedule properties, building therein was in a dilapidated condition and that therefore, his father Krishnan has effected some repairs in the building. PW4 T.R.Stanley is the Mason who conducted the repair works therein. He AS 238/1999 and con. case 16 testified that the repair works were done at the instance of Krishnan and he was paid by Krishnan. The defence counsel was not able to shake his evidence in cross- examination. His evidence clearly shows that Krishnan was in possession of the plaint schedule properties at that time. 16. PW6 Raman Unni is the clerk of E.P. Kochukrishnan, Advocate, Chittur. It is the admitted case that to evict the tenants, Rent Control Petitions were filed before the Rent Control Court, Chittur which were allowed, but one Rent Control Petition was dismissed. An appeal filed against that order was also dismissed. Tenant in that R.C.P. DW2 M.P.Parameswaran Nair filed a petition for re- delivery of the property. PW1 testified that his father Krishnan settled the matter with DW2 and that DW2 surrendered the above building to Krishnan. On the other hand, DW1 would say that he had paid the amount to DW2 and settled the matter. DW1 examined DW2 to show that DW2 surrendered the building to him. But PW1 produced Ext.A11 agreement executed between DW2 and DW1 at the AS 238/1999 and con. case 17 time of surrender of the building by DW2. Soman (PW5)and Jayarajan Nair were witnesses to the same. DW2 as well as DW1 admitted having singed in Ext.A11. PW5 testified that it was Krishnan who paid the amount to DW2. DW1 has testified that he paid the amount to Krishnan who paid the same to DW2 which appears to be highly improbable. PW6 has categorically testified that it was Krishnan who was conducting the Rent Control Petitions and DW2 surrendered the room to Krishnan. 17. DW1 examined DWs.3 and 4 who are his near relatives to show that PW1 is a person who cannot be trusted. There is no substance in the above contention. A reading of their evidence clearly shows that they are testifying falsely to help DW1. Further, their evidence do not in any way help DW1 to prove his case. 18. In an attempt to prove that DW1 is in possession of the plaint schedule properties, he produced Exts.B4, B5, B7, B8 and B9. Exts.B4 and B5 are the ownership certificates issued in the name of DW1 from Nemmara AS 238/1999 and con. case 18 Grama Panchayat. It will only show that DW1 is the owner of the building. Ext.B7 is notice issued by the advocate for one of the tenants in the plaint schedule building to DW1. Ext.B8 is the reply sent by DW1. Exts.B7 and B9 do not in any way show that DW1 was in possession of the property. The notice was issued to DW1, as rent control petitions were filed by him. Ext.B9 is a licence issued to DW1 under the Kerala Sugar Dealers and Licencing Order, 1967 with respect to a building in Ward No.6. The plaint schedule property is situated in Ward No.7, as seen from Exts.B4 and B5. The documents produced by DW1 do not in any way show that he is in possession of the plaint schedule property. 19. For all these reasons, I am inclined to hold that the lower court is justified in believing the evidence of PWs.1 to 6 and rejecting the evidence of DWs.1 to 4 and finding that DW1 has agreed to sell orally the plaint schedule property to PW1 for a sale consideration of Rs.75,000/-, that Rs.25,000/- was paid as advance and that AS 238/1999 and con. case 19 DW1 after signing in Ext.A2, the sale deed prepared by PW1, did not appear before the Registrar to register the sale deed. 20. The next question for consideration is whether PW1 is entitled to a decree for specific performance. Sri. N.Subramaniam, the learned Senior Counsel appearing for DW1, argued that as PW1 has prayed for execution of sale deed and has not prayed for possession of the plaint schedule properties, the suit is not maintainable, that even if it is found that DW1 has agreed to sell the properties and he has committed breach of agreement, after a lapse of 18 years, it is not proper to grant a decree for specific performance, that there was substantial escalation of price for the land in that area and that if a decree for specific performance of the agreement for sale is granted, it will give PW1 an unfair advantage over DW1. 21. Sri. O.Ramachandran Nambiar, the learned counsel appearing for PW1, on the other hand, supported the judgment of the lower court and argued that PW1 shall AS 238/1999 and con. case 20 not be denied the decree of specific performance on account of rise in price of the land. 22. Granting of relief of specific performance is dependent on the provisions of section 20 of the Specific Relief Act, as held by the Apex Court in Abdul Khader S. V. Abdul Wajid (D) by LRs. and others (2008 (4) KHC 266). 23. Section 20 of the Specific Relief Act, 1963 reads thus:- “Section 20 - Discretion as to decreeing specific performance:- (1) The jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal. (2) The following are cases in which the court may properly exercise discretion not to decree specific performance:-- (a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or AS 238/1999 and con. case 21 (b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non- performance would involve no such hardship on the plaintiff; (c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance. Explanation 1.--Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). Explanation 2.--The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract. (3) The Court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance. (4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the other party.” AS 238/1999 and con. case 22 24. A reading of Section 20 of the Specific Relief Act would show that the jurisdiction to decree specific performance is discretionary and the Court is not bound to grant such relief merely because it is lawful to do so, but the discretion is not arbitrary but sound and reasonable, guided by judicial principles and to be guided by judicial function. When terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant, the court can exercise its discretion not to grant specific performance even if it is lawful. 25. The learned Senior Counsel for DW1 cited the following decisions in support of his contentions:- Parakunnan Veetill Joseph's Son Mathew V. Nedumbara Kuruvila's Son and others (AIR 1987 SC 2328), Gobind Ram V. Gian Chand (AIR 2000 SC 3106), Madhavan V. Thankam (2007(2) AS 238/1999 and con. case 23 KLJ 253), Rajendra Deva V. Hari Fertilizers, Sahupuri, Varanasi (AIR 2001 SC 1893), Ramji Patel V. Rao Kishore Singh (AIR 1929 PC 190) and G. Jayalakshmi V. Union Bank of India and another (2006(1) ILR Ker. 316. The above decision only reiterate the principles mentioned above and do not apply to the facts and circumstances of the present case.