IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU SECOND APPEAL No.1657 of 2005 DATE: 02.04.2013 Between: Achuta Nageswara Rao …… Appellant And Chundru Krishna Murthy and 3 others ...Respondents HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU SECOND APPEAL No.1657 of 2005 JUDGMENT : Unfortunate plaintiff who lost the suit in both the Courts below is the appellant herein. He filed the suit for specific performance of agreement for sale dated 28.09.1987 executed by the 1st defendant in his favour in respect of the plaint schedule land. Plaint schedule consists of three extents viz., Ac.1-49 cents in R.S. No.194/1, Ac.2-00 in R.S. No.278/3, and Ac.3-05 cents in R.S. No.581/3 of Avupadu village, Nallajerla Mandal, West Godavari District, totalling Ac.6-54 cents of dry land. Sale consideration mentioned in the agreement was Rs.36,000/- in total. The agreement further reads that the entire sale consideration of Rs.36,000/- was paid by the plaintiff to the 1st defendant on the same date of execution of the agreement and possession of the lands was also delivered. The agreement further reads that the plaintiff has to obtain registered sale deed at his own expense on or before 09.10.1987. It is the plaintiff’s case that in spite of demands, the 1st defendant was postponing execution of registered sale deed and the plaintiff was ready and willing to perform his part of the suit contract at all material points of time. On the other hand, it is contention of the 1st defendant that he never offered to sell the suit lands to the plaintiff and that on 15.11.1987 at 4.00 P.M. the defendants along with named persons and 30 to 35 unknown persons formed into an unlawful assembly armed with deadly weapons came to the lands where the defendants were and that they caught hold of the 1st defendant, took him to Tamarind tree on the canal bund, tied him to the tree and forcibly obtained signatures of the defendants with antedate on a prepared document as it the 1st defendant sold the property to the plaintiff. According to the defendants, there were no attestors at that point of time and the 1st defendant was ill-treated with warning. It is also the defendants’ case that the defendants got issued registered notice through their advocate on 24.11.1987 to the plaintiff and other named persons and that having received the same, none of them gave reply. It is the defendants’ case that the 1st defendant never delivered possession of the suit lands to the plaintiff. 2) After trial, the trial Court dismissed the suit with costs; and on appeal by the plaintiff, the lower appellate Court dismissed the appeal with costs. Thereupon, the plaintiff approached this Court with this second appeal. This Court previously by judgment dated 23.09.2008 set aside judgment and decree of the lower appellate Court and remanded the matter to the lower appellate Court giving permission to the parties to amend their respective pleadings if they choose to do so and giving liberty to both the parties to let in further evidence on all the aspects including the plea of coercion if the parties choose to do so. The defendants carried the matter to the Supreme Court of India by way of Civil Appeal No.6222 of 2012 (arising out of S.L.P.C.No.31046 of 2008). The Supreme Court by order dated 31.08.2012 passed the following order: “1. Leave granted. 2. Heard learned counsel for the parties. 3. Considering the facts and circumstances of the case, especially considering the fact that the suit was filed in the year 1990, we are of the view that no useful purpose will be served to remand the matter to the Appellate Court. We therefore direct the High Court of Andhra Pradesh at Hyderabad to decide the matter on merit in accordance with law as expeditiously as possible, preferably within a period of six months from the date of communication of this order. The Judgment and order dated 23.09.2008 passed by the High Court in Second Appeal No.1657 of 2005, is set aside as above. 4. It is made clear that we have not expressed any opinion on the merits of the case. 5. With the aforesaid observations, this Appeal stands disposed of.” 3) Before going to merits of the case, it is necessary to note a little mishap which occurred in the trial Court prior to trial. The suit agreement dated 28.09.1987 was under- stamped. Therefore, the trial Court sent the original suit agreement which was filed along with the plaint, to the District Collector, West Godavari for the purpose of collection of stamp duty and penalty payable on the said agreement. But, in the office of the Collector, West Godavari, original suit agreement was misplaced and could not be traced. When addressed by the trial Court for return of the document, the Collector sent Ex.A-1 reply dated 16.01.1999 to the trial Court placing the above facts and requesting the trial Court to send duplicate copy of the suit sale agreement if available for impounding and levy of deficit stamp duty and for resubmission. It appears that along with the plaint, the plaintiff filed not only original suit agreement but also Photostat copy of the suit agreement. Therefore, the trial Court sent Ex.A-2 Photostat copy of the suit agreement to the Collector who impounded the same and collected deficit stamp duty and penalty payable on original of Ex.A-2 and sent back the same to the trial Court. During the course of trial, the plaintiff as P.W-1 marked Ex.A-2 without any objection by the defendants. In spite of it, it was contended for the defendant in both the Courts below that Ex.A-2 being a secondary evidence as a Photostat copy, is not admissible in evidence and that collection of deficit stamp duty and penalty by the Collector on such a Photostat copy of the agreement does not cure the defect of the original suit agreement. Both the Courts below upheld the said contention of the defendants’ counsel. This Court in the previous judgment dated 23.09.2008 before remand, after survey of entire case law and applying the same to facts of this case, came to the following conclusion: “33. In the light of the aforesaid aspects specified above, this Court is of the considered opinion that the findings recorded both by the court of first instance and also the appellate Court to the effect that the suit for specific performance on the strength of Ex.A-2 Xerox copy of original agreement of sale cannot be maintained, inasmuch as the same had been marked without any objection, whatsoever, and after marking such contention cannot be put forth or such findings cannot be recorded. It is needless to say that it is one thing to say that the suit itself is not maintainable on the strength of a document, since the document is inadmissible in evidence. It is another thing to say that the relief cannot be granted on the strength of such document or such document cannot be believed in the facts and circumstances in a given case.” It is pointed out by the appellant’s counsel that the said finding on admissibility of Ex.A-2 Photostat copy on which the Collector has collected deficit stamp duty and penalty, was not disturbed by the Supreme Court in the remand order. On that premise, both the Counsel i.e., the appellant’s counsel as well as senior counsel for the respondents did not elaborate their submissions in this second appeal after remand. Both the counsel did not submit any arguments in contrast to the above opinion expressed by this Court prior to remand. Therefore, this Court in this second appeal after remand, has to consider only the other aspects on factual matrix of the case. 4) It is contended by the appellant’s counsel that in view of remand order passed by the Supreme Court, this second appeal has to be disposed of by this Court in accordance with Section 103(b) C.P.C. The said provision reads as follows: “103:Power of High Court to determine issues of fact: In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,- (a)----------------------------------- (b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100.” In this second appeal, none of the parties nor their counsel took any steps for amending their pleadings; or to adduce any further evidence on behalf of their respective parties. Both the counsel addressed arguments on the pleadings already filed by the respective parties in the trial Court and on the evidence let in by the parties in the trial Court. 5) In so far as substantial questions of law mentioned in para 8(a) to (g) of memorandum of grounds of second appeal are concerned, they were considered and decided by this Court prior to remand as indicated above; and both the counsel did not dispute the said finding given by this Court prior to remand on the substantial questions of law involved in this second appeal. What is left to be considered by this Court is only on factual aspects of the case in terms of Section 103(b) C.P.C and in the light of the Supreme Court order indicated above. 6) It is contended by the appellant’s counsel that the defendants failed to prove that the suit agreement for sale was obtained by the plaintiff by keeping the 1st defendant under coercion or threats. On the other hand, it is contended by the respondents counsel that the burden is on the plaintiff to prove that apart from the suit agreement being true and supported by consideration, the plaintiff was ready and willing to perform his part of the suit contract at all material points of time till filing of the suit in the trial Court. Therefore, the points which arise for consideration now after remand are: “(1) Whether the suit agreement (Ex.A-2) is true and supported by consideration? (2) Whether the suit agreement came into existence by coercion and under threats as pleaded by the defendants? (3) Whether the plaintiff-appellant was always ready and willing to perform his part of contract at all material points of time.” 7 ) POINTS 1 AND 2: As pointed out earlier, from contents of written statement of the 1st defendant which was adopted by the 2nd defendant also by filing memo, there is no dispute on original of Ex.A-2 agreement containing signatures of the 1st defendant on each page thereof. There is also no dispute in the written statement that when the 1st defendant signed in the suit agreement, contents of the agreement were already scribed by P.W-3 before the 1st defendant signing therein and that even at the time of signing in the suit agreement, the 1st defendant knew contents thereof to the effect that he was signing a sale transaction in favour of the plaintiff. Irrespective of burden of proof, there is no dispute about execution of the suit agreement, the dispute being only due and voluntary execution of the suit agreement by the 1st defendant. By the time of trial, the 1st defendant was no more. Therefore, the 2nd defendant who is son of the 1st defendant examined himself as D.W-1. The defendants did not lead any other oral evidence. On the other hand, the plaintiff apart from examining himself as P.W-1 to speak about truth of suit agreement and passing of consideration thereunder to the 1st defendant, examined attestors therein as P.Ws 2 and 4 to 6 and scribe as P.W-3 who gave evidence in support of truth of and passing of consideration under the suit agreement. It is contended by the respondents’ counsel that evidence of P.Ws 1 to 6 is parrot-like and no reliance can be placed on their evidence. It is contended that even though P.W-1 in cross examination deposed about he withdrawing money from Bank few weeks prior to the date of suit agreement, he did not furnish proof therefor. Proof may relate to the pleas and not relating to stray pieces of cross- examination. In order to substantiate the plea of truth of and passing of consideration under the suit agreement, the plaintiff had let in voluminous evidence of the scribe and four of the attestors apart from himself. None of the said witnesses P.Ws 2 to 6 would be demonstrated as false witnesses from their cross-examination. DW.1 /2nd defendant is one of the attestors (1st attestor) in the suit agreement. There is no pleading as to under what circumstances signature of D.W.1 came into existence in the suit agreement. It is not his plea that he was also tied to a tree along with his father before obtaining his signature as 1st attestor in the suit agreement. In spite of it, he deposed as D.W.1 that he was also tied to the tree along with his father. D.W.1 admits his signature as attestor in the suit agreement. The defendants did not examine any of the persons namely Narina Satyanarayana, Rachuri Nageswara Rao who are said to have accompanied the defendants 1 and 2 at the time of the alleged incident in the fields. According to the defendants, as per allegations in the written statement, they did not give any report to the police on the incident, but they are said to have sent report to Station House Officer, Ananthapalli Police Station by registered post. No copy of the report nor postal receipt nor postal acknowledgment of the police is filed. Contrary to the said allegation, D.W.1 deposed that they went to police station and gave report. If no action was taken by the police by way of investigation, nothing prevented the defendants to give report to higher police Officials like Superintendent of Police of the District; and if the higher police Officials also did not take action, to file a private complaint before the Magistrate. Natural re-action of a victim in the above circumstances as pleaded by the defendants is that they rush to the police for redressal. 8) The defendants further plead that they got registered notice issued through their advocate on 24.11.1987 to seven persons including the 1st plaintiff, PW.3 and after having received the said notice, there was no reply from any of them. It was contended that it is a strong circumstance in favour of truth of the allegations pleaded by the defendants. D.W.1 deposed that Ex.B.8 is office copy of registered notice. The said registered notice is dated 16.11.1987 and is not dated 24.11.1987 as pleaded by the defendants. No doubt, the registered notice was served on the addressees including the plaintiff as per Ex.B.9 postal acknowledgments. Ex.A.3 is copy of the said notice received by the plaintiff. Admittedly, the plaintiff did not issue any reply to that notice disputing the facts therein. To explain non-issuing of reply notice, the plaintiff put forth Ex.A.4 and evidence of PW.8. PW.8 is a pleader’s Clerk at Tadepalligudem. He claims to be pleader’s Clerk of one D.Lakshmana Sastry, Advocate during that period. In cross- examination of PW.8, his working with advocate D.Lakshmana Sastry is disputed. Advocate by name D.Lakshmana Sastry is not examined. It is evidence of PW.8 that his advocate D.Lakshmana Sastry instructed him to prepare the reply notice, when the plaintiff approached the said advocate. PW.8 says that he prepared part of the notice as Ex.A.4 and the advocate instructed him that he would dictate remaining portion of the reply notice. But Ex.A.4 is left incomplete. No reason is given as to why the said advocate D.Lakshmana Sastry did not complete Ex.A.4. By filing Ex.A.4, which is incomplete reply notice and which had not seen light of the day till it was filed into the trial Court during trial, the plaintiff wants the Courts to believe his explanation for non-issuing of reply to Ex.A.3 notice. As found by the Courts below, this is nothing but cock and bull story pleaded by the plaintiff. The fact remains that neither the plaintiff nor PW.3 gave any reply to Ex.A.3 notice having received the said notice from the defendants’ counsel. No reason is put forward by PW.3 for not issuing any reply to that notice which pointed out accusing finger towards him also. No doubt, non-issuing of reply to Ex.A.3 notice may be one of the strong circumstances which go in favour of truth of contents of Ex.A.3. At the same time, there are several strong circumstances in favour of the plaintiff also to the effect that the defendants or the 1st defendant did not give any report to the police on the alleged incident on 15.11.1987 and that the 2nd defendant/D.W.1 failed to give any explanation for his signature as 1st attestor in the suit agreement. Evidence of D.W.1 that he was also tied to a tree by the plaintiff and his followers, cannot be believed as it is baseless and belated. 9) It is contended by the respondents’ counsel that it is highly improbable that the 1st defendant had executed the suit agreement in favour of the plaintiff in spite of bitter feelings between the parties evidenced by previous litigation in O.S.No.162 of 1989 and A.T.C.No.14 of 1985. If one wants to go on probabilities, it is also probable that in order to purchase peace, the 1st defendant agreed to sell the suit land to the plaintiff. If all the circumstances are weighed while assessing the evidence on record, it cannot be said that the contention pleaded by the defendants alone is true and correct. In opinion of this Court, the defendant failed to prove the circumstances in which the 1st defendant executed original of Ex.A.2 agreement for sale in favour of the plaintiff, as pleaded by the defendants. The defendants also failed to plead in what circumstances the 2nd defendant signed in the suit agreement as one of the attestors therein. On the other hand, the plaintiff by examining PWs 2 to 6 whose evidence could not be shaken in their cross- examination, proved truth of as well as passing of consideration under the original of Ex.A.2 agreement. The points 1 and 2 are answered accordingly. 10) POINT No.3: It is no doubt true that irrespective of proof of truth of and passing of consideration under the suit agreement, the plaintiff has to validly plead and prove that he was always ready and willing to perform his part of the suit contract at all material points of time, in terms of Section 16(c) of the Specific Relief Act, 1963. In Azhar Sultana v B.Rajamani[1], the Supreme Court referred the following passage in P.Ramanatha Aiyar’s Law Lexicon on ‘reasonable time’: “A reasonable time, looking at all the circumstances of the case; a reasonable time under ordinary circumstances; as soon as circumstances will permit; so much ;time as it necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than “directly”, such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea”. 11) It is further pointed out therein by the respondents’ counsel that the question of the defendant discharging the burden would arise provided the plaintiff is found to be entitled to a decree for specific performance of the suit contract. While admitting that the suit is filed within the period of limitation or on the last date of limitation, the respondents’ counsel contended that there was no explanation offered by the plaintiff for waiting such a long time for seeking specific performance of the alleged suit agreement. In the suit agreement dated 28.09.1987, it is stipulated that the plaintiff has to obtain a registered sale deed by 09.10.1987. On the date of the suit agreement itself, the agreement recites that entire sale consideration of Rs.36,000/- was paid by the plaintiff to the 1st defendant and possession of the suit lands was also delivered to the plaintiff. What was left to be performed is obtaining of registered sale deed by the plaintiff at his expense in pursuance of the suit agreement. The Supreme Court held that the Court, keeping in view of the fact that it exercises a discretionary jurisdiction would be entitled to take into consideration as to whether the suit had been filed within a reasonable time and circumstances of the case. The Supreme Court categorically held that no hard and fast law can be laid down therefor. In the case before the Supreme Court, there was no time stipulated in the contract for sale that terms of the contract have to be fulfilled within that period. The question of filing the suit within a reasonable time arises, in my opinion, in a case falling under second part of Article 54 of the Schedule to the Limitation Act 1961, where no time is stipulated for performance of terms of the contract. When the contract itself prescribes time limit for performance of terms of that contract, the question of filing a suit within a reasonable time does not arise and it cannot be a debatable question in such a situation. 12) No doubt, as laid down in Pramod Buildings and Developers Private Limited v Shanta Chopra[2] of the Supreme Court, it was the plaintiff who approached the Court to prove that he was ready and willing to perform the contract and that the plaintiff cannot obviously succeed unless he proved that he was ready and willing to perform the contract. As pointed out earlier, there was no obligation as such left out in the suit contract to be performed by the plaintiff towards the 1st defendant. The plaintiff has discharged all his obligations by way of paying entire sale consideration under the suit contract to the 1st defendant and obtaining delivery of possession of the suit lands from the 1st defendant. What was left out was obtaining of registered sale deed at his expense. According to the appellant’s counsel, the said obligations are no obligations by the plaintiff towards the 1st defendant, but the stipulation for obtaining the registered sale deed is an obligation for the plaintiff towards himself and the obligation of bearing expenses for registration, at best, is an obligation towards the Government to pay stamp duty and registration charges. Therefore, the plaintiff apart from pleading has proved that he was always ready and willing to perform his part of the suit contract. This is not a case where only part of sale consideration is paid and part of sale consideration is yet to be paid. Therefore, I find on this point that the plaintiff/appellant was always ready and willing to perform his part of the suit contract. 13) In view of my findings on the above points, this Court is of the opinion that the Courts below erred in dismissing the suit for specific performance. 14) In the result, the second appeal is allowed with costs throughout setting aside the decrees passed by the Courts below and granting decree for specific performance of original of Ex.A.2 agreement for sale in favour of the plaintiff and against the defendants and also granting the relief of permanent injunction as prayed for. _______________________________ SAMUDRALA GOVINDARAJULU, J April 02, 2013 ksh [1] (2009) 17 Supreme Court Cases 27 [2] (2011) 4 Supreme Court Cases 741