1 S.A. No.737.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL No.737 OF 2010 Mrs. Asha W/o Arvind Alate, .. APPELLANT VERSUS Smt. Laxmibai W/o Dattatraya Khadke & another ...RESPONDENTS ... Shri. A.D. Kasliwal, Advocate for the appellant ... CORAM : S.V. GANGAPURWALA, J. DATE : 13th December, 2010. PER COURT : This is Plaintiffs Second Appeal. The plaintiff had filed suit for specific performance of contract. The said suit came to be dismissed. The plaintiff preferred an appeal, the appellate Court also dismissed the appeal by confirming the Judgment and Decree of the trial Court. The plaintiff has assailed the said Judgment in the present Second Appeal. 2 S.A. No.737.2010 2. Shri A.D. Kasliwal, learned Counsel for the plaintiff / appellant strenuously contended that the Courts below on assumption and presumption discarded the agreement Exh. 31 & 32. According to the learned Counsel when the documents show that the same was executed before the Notary, then same should have been accepted. According to the learned Counsel the Courts below have not properly considered the said issue. 3. Shri Kasliwal, the learned Counsel for the appellant further contended that the matter should have been remanded back for allowing the appellant to adduce the evidence. The learned Counsel further contended that non consideration of the document itself amounts to a substantial question of law and the reasonings given by the lower appellate Court in para No. 14 & 15 are based on mere assumptions. 4. With the assistance of learned Counsel, I have gone through the judgments delivered by both the Courts below. Both the 3 S.A. No.737.2010 Courts on appreciation of evidence have come to the conclusion that the plaintiff has miserably failed to prove the said agreements, so also the aspect of the readiness and willingness. Not only that even the defendant has sold the suit property by registered sale-deed to the present respondent No. 2 who is bonafide purchaser of the said property for a valuable consideration. 5. The plaintiff has not stepped into the witness box, the plaintiff has examined her power-of-attorney i.e. her brother. He also in his deposition no where says that the said agreement was executed before the Notary. PW-2 who is examined on behalf of plaintiff to prove the agreement also no where says about payment of Rs. 2,000/- by the plaintiff to the defendant. The agreements have not been proved as is required under the law. The said agreements and depositions do not inspire confidence. 6. Even the plaintiff could not prove his readiness and willingness. It is also held that the defendant is bonafide purchaser for valuable 4 S.A. No.737.2010 consideration. In such circumstances his interest is also created. The relief of specific performance of contract being discretionary relief, the Court has properly exercised its discretion, apart from the fact that the agreements are not proved. 7. The request for remand cannot be considered, as there is nothing on record to show that the appellant was not given any opportunity to adduce the evidence. The plaintiff on his own volition had refrained from deposing before the Court instead asked her brother to depose. Remanding the matter at this stage, would be in- appropriate and same would amount to giving an opportunity to the plaintiffs to fill-in the latches which would not be permissible. The arguments of Shri Kasliwal that even the Courts have failed to pass an order for refund of the earnest amount is concerned, the same is not substantiated by any evidence. The Courts have come to the conclusion that it is not proved that plaintiff has parted with Rs. 2,000/-. The PW-2 who is examined to prove the said fact has not 5 S.A. No.737.2010 even whispered about the same in his deposition. 8. In the light of above, the conclusion drawn by the Courts below is a possible conclusion. The Second Appeal cannot be entertained on the ground that some other conclusion is also possible. As has been held in a case of “Vidhyadhar V/s. Manikrao and another, reported in AIR 1999 SC, 1441”. 9. In the light of above, Second Appeal being sans substantial question of law is dismissed. However, there shall be no order as to costs. In view of the dismissal of the Second Appeal, the Civil Application is also disposed of. [S.V. GANGAPURWALA] JUDGE SDM*