1 S.A. 59 of 2008 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 59 OF 2008 Baburao Bashettiappa Nakade Appellant V E R S U S Babu Digambarrao Kulkarni & others Respondents Mr. C.R. Deshpande, Advocate for appellant Mr. S.S. Deshmukh, Advocate for respondent No. 8 CORAM : S.V. GANGAPURWALA, J. DATED : 16th March, 2011 PER COURT : 1. This is plaintiff’s Second Appeal. The plaintiff had filed a suit for specific performance of contract which came to be dismissed. The plaintiff preferred an appeal. The appellate Court dismissed the appeal, confirming the Judgment and Decree passed by the trial Court. The plaintiff has assailed the Judgment and Decree in the present Second Appeal. 2. Shri C.R. Deshpande, learned counsel for the appellant strenuously contended that though apparently finding appears to be concurrent, still while arriving at the finding of readiness and willingness on the part of plaintiff, the Courts below have perversely 2 S.A. 59 of 2008 dealt with the said issue. When the plaintiff had parted with a consideration amount of Rs. 36,000/- (Rs. Thirty six thousand), out of the total consideration of Rs. 40,000/- (Rs. Forty thousand), it could not have been said that plaintiff was not ready and willing to perform his part of contract. The learned counsel further contends that the plaintiff had complied with major terms of the agreement, by paying 90% of the consideration amount. Simply because a litigation was initiated between Hirkanbai and obtained prohibitory orders, the further performance could not be effectuated. The earlier suit filed was withdrawn with a liberty to file a fresh suit in October 1982, and in November, 1983, a fresh suit was filed which came to be dismissed in default on 27th March, 1998. The defendant Nos. 1 to 4, had alienated the suit land in favour of defendant Nos. 7 and 8, vide registered sale-deed on 16th April, 1999 and in April, 2000 the present suit came to be filed. The learned counsel contended that the suit was well within limitation, even after excluding the days wherein the prohibitory orders were covered. No fault could not be found in the approach of the plaintiff. 3. Shri Deshpande, learned counsel further submitted that the trial Court had specifically come to the conclusion that the defendant Nos. 7 & 8 were not bonafide purchasers and without filing a cross 3 S.A. 59 of 2008 objection, they could not have assailed the said finding nor the District Court could have reversed the finding for the said purpose. The learned counsel relied on the Judgment of the Apex Court in a case of “Banarasi and others V. Ram Phal, reported in AIR 2003, SC 1989”. According to the learned counsel, the agreement in favour of the appellant was a registered agreement of sale of which noting was also taken on the revenue record. As such the defendant Nos. 7 and 8 had a constructive notice of the same, and they could not be said to be a bonafide purchasers. 4. With the assistance of learned Counsel, I have gone through the judgments. It is trite law that relief of specific performance is a discretionary relief. Once the Courts below have exercised its discretion in a particular manner, Appellate Court shall be loath in interfering with the discretion exercised by the trial Court. The agreement in favour of the plaintiff is of the year 1979. Though the plaintiff has paid consideration amount of Rs. 36,000/- (Rs. Thrity six thousand), still further part of paying the remaining consideration of Rs. 4,000/- (Rs. Four thousand), and to get registered sale-deed executed still remained to be done. Moreover, after the suit was dismissed in March, 1998, after period of one year, the defendant Nos. 1 to 4 sold the property to defendant Nos. 7 and 8. So for more 4 S.A. 59 of 2008 than a year after the litigation had culminated, no steps were taken by the plaintiff to get the sale-deed executed, and after the dismissal of the said suit the plaintiff had filed the present suit after lapse of two years. In such circumstances, it cannot be said that the plaintiffs having not taken steps for more than a year after culmination of litigation for getting sale deed executed and defendant Nos. 7 & 8 having purchased after waiting for a year were not a bonafide purchasers. Further as the steps were not taken immediately after disposal of the suit and after the period of one year the defendant executed the sale-deed., there is nothing on record to show readiness and willingness on the part of the plaintiff. 5. The contention of Shri Deshpande, learned counsel that without filing a cross objection, the defendant Nos. 7 & 8 could not have assailed the finding in respect of issue No. 5-A as dealt by the trial Court. The same would not be in consonance with the Order 41 Rule 22 read with Rule 33 of Civil Procedure Code. The Apex Court in a case of “S. Nazeer Ahmed V. State of Bank of Mysore and ors, reported in 2007 (11) SC 75” has held thus :- “ Held, the High Court, in our view, was clearly in error in holding that the appellant not having filed a memorandum of cross-objections in terms of Order XLI Rule 22 of the Code, 5 S.A. 59 of 2008 could not challenge the finding of the trial court that the suit was not barred by Order II Rule 2 of the Code. The respondent in an appeal is entitled to support the decree of the trial court even by challenging any of the findings that might have been rendered by the trial court against himself. For supporting the decree passed by the trial court, it is not necessary for a respondent in the appeal, to file a memorandum of cross- objections challenging a particular finding that is rendered by the trial court against him when the ultimate decree itself is in his favour.” 6. Be that as it may, the relief of specific performance being a discretionary relief and both the Courts concurrently found that the plaintiff had failed to prove his readiness and willingness, the same being finding of fact, no interference is called for. In the light of the same, Second Appeal being sans substantial questions of law, is dismissed. However, there shall be no order as to costs. ( S.V. GANGAPURWALA, J ) SDM*473.10SA/160311