1 64 sa.911.05 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION SECOND APPEAL NO. 911 OF 2005 Jaywant Antu Patil. ... Appellant Versus Dnyandeo Sawala Patil and others. ... Respondents ----- Mr. Dilip Bodke for the Appellant. Mr. Ajit Kenjale for the Respondent No.2. ----- CORAM : A.S.OKA, J. DATE : 05 th December, 2011. P.C. 1 Heard the learned counsel appearing for the Appellant. 2 The Appellant is the Plaintiff. He executed a sale-deed in favour of the predecessor of the Respondents (Defendants) on 3 rd September, 1969 in respect of the suit property. According to the case of the Appellant, at that time, the predecessor of the Respondents agreed to reconvey the suit property to the Appellant. The Appellant filed the present suit in the year 1986 for seeking specific performance of the agreement of repurchase. The trial Court dismissed the suit of 2 64 sa.911.05 the Appellant by holding that the suit was barred by limitation. The Appellate Court held that specific performance cannot be granted as there were no averments of readiness and willingness in the plaint. The Appellate Court has confirmed the said decree and has also held that the present suit was hit by the bar of res-judicata. 3 The learned counsel appearing for the Appellant submitted that the trial Court accepted the plea of the Appellant that the suit was not barred by the principle of res-judicata. He submitted that the earlier suit was filed by the Appellant in a total different capacity. He submitted that the earlier suit was filed by the Appellant on the footing that the transaction was of a mortgage. His submission is that the finding on the issue of bar of res-judicata is illegal. His other submission is that in the earlier suit, a decree was passed by the trial Court which was upset by the Appellate Court by the judgment and decree dated 11 th March, 1986 by which it was held that the transaction was a sale transaction and that there was an agreement for re- purchase incorporated in the sale-deed. He submitted that the 3 64 sa.911.05 Appellant was entitled to the benefit under Section 14 of the Limitation Act, 1963 by excluding the time spent in prosecuting the earlier suit and appeal. He, therefore, submitted that the finding on the issue of limitation is illegal. The learned counsel also submitted that if the present suit is read as a whole, it is clear that there are averments regarding readiness and willingness. 4 I have carefully considered the submissions. According to the case of the Appellant, there was a clause in the sale-deed dated 3 rd September, 1969 that if a sum of Rs.1,000/- was paid by the Appellant to the purchaser in the year following the completion of ten years from the date of the execution of the sale-deed, the purchaser was under an obligation to execute a re-conveyance. Therefore, the Appellate Court has observed that the Appellant was entitled to get the land repurchased till 3 rd September, 1981 and therefore, the suit ought to have been filed within a period of three years from 3 rd September, 1981 as per the Article 54 of the Limitation Act, 1963. The Appellate Court found that the period of limitation expired on 2 nd September, 4 64 sa.911.05 1984 and the present suit was filed in the year 1986. 5 The learned counsel appearing of the Appellant has produced for perusal of the Court a copy of the plaint in the present suit and a copy of the judgment of the District Court in the appeal arising out of a decree passed in the earlier suit filed by the Appellant. The earlier suit was filed by the Appellant by alleging that the transaction dated 3 rd September, 1989 was of mortgage. The District Court has noted that a contention was raised by the Defendants (present Respondents) therein that the transaction was of an out and out sale and it was not a mortgage. This was a stand taken by the Defendants in the earlier suit filed in the year 1981. Notwithstanding the stand taken by the contesting Defendants, the Appellant prosecuted the said suit. Therefore, it cannot be said that the suit was prosecuted in a bona fide manner by the Appellant. Therefore, the Courts below have rightly held that the suit filed in the year 1986 was barred by limitation. 5 64 sa.911.05 6 Moreover, the Appellate Court has found that there are no averments of readiness and willingness in the plaint in the present suit in terms of Section 16(c) of the Specific Relief Act, 1963. Perusal of the plaint shows that even if the averments made therein are liberally construed, it is impossible to record a finding that there is a plea of readiness and willingness. The readiness and willingness as of 1981 was required to be pleaded. In fact, there is no specific pleading of readiness and willingness in terms of Section 16(c) of the Specific Relief Act, 1963. Therefore, there is no illegality in the aforesaid finding recorded by the Appellate Court. 7 Hence, no substantial question of law arises. The second appeal is accordingly dismissed. 8 Civil Application No.1452 of 2005 does not survive and the same is disposed of. [ A.S.OKA, J ]