IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 SA.No. 123 of 1996() -------------------- AS.138/1988 of I ADDL.SUB COURT,TRIVANDRUM OS.1429/1986 of PRL.M.C.,TRIVANDRUM .................... APPELLANT(S)/ADDL. APPELLANTS-L.RS OF DEFENDANT: --------------------------------------------------------------------------------- 1. P. BABY, W/O. K.J. DAS, CHARUVILA VARSHA BHAVAN, NEAR BOAT HOUSE, CHETTIKUNNU, KUMARAPURAM, KADAKAMPALLY VILLAGE FROM KALLADICHAMOOLA PUTHEN VEEDU, PACHALLOOR DESOM, THIRUVALLAM VILLAGE. 2. JOTHISH KUMAR, DO. DO. DO. 3. MEENAKUMAR, OF DO. DO. DO. 4. AJITH KUMAR OF DO. DO. DO. BY ADV. SRI.L.MOHANAN RESPONDENT(S)/RESPONDENT/PLAINTIFF: ------------------------------------------------------------ B. SADASIVAN, GOVT. SERVANT, NEERILI HOUSE, VAZHAMUTTAM, PACHALLOOR DESOM, THIRUVALLAM VILLAGE, TRIVANDRUM. ADV. SRI.BIJU KURIAKOSE SRI.D.KISHORE THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12/06/2009, THE COURT ON 18/06/2009 DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 123 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of June, 2009. JUDGMENT The defendant in O.S. No. 1429 of 1986 before the Munsiff's Court, Thiruvananthapuram, who had suffered a decree at the hands of the trial court and which was confirmed in appeal is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. According to the plaintiff, as per Ext.A1 agreement dated 7.6.1986, the defendant agreed to sell six an a half cents of property in Sy. No.113/3 of Thiruvallam Village with a building therein for a sale consideration of Rs.12,000/-. Rs.5,000/- was paid in advance and the balance Rs.7,000/- had to be paid within two months. Even though the plaintiff was ready and willing to perform his part of the contract, inspite of repeated demands, the defendant did not discharge his obligations. Ultimately the plaintiff sent a notice, to which Ext.A3 reply was sent by the defendant. Since the defendant was unwilling to execute the sale deed, the suit was laid. 3. The defendant resisted the suit. He denied the allegations in the plaint. In fact his defence was one of total denial S.A. 123/1996. 2 and he went on to point out that the agreement relied on by the plaintiff is a fabricated and concocted one. According to him, the suit was laid at the instance of one Vasundharan, who was on enimical terms with him. On the basis of these contentions, he prayed for a dismissal of the suit. 4. For the purpose of the suit, the plaintiff had P.Ws.1 to 5 examined and Exts.A1 to A6 marked. Defendant was satisfied by examining himself as D.W.1. On a consideration of the evidence before it, the trial court came to the conclusion that the plaintiff has succeeded in establishing the agreement for sale and accordingly granted the relief prayed for by him. The defendant carried the matter in appeal as A.S. 138 of 1988 before the Additional Sub Court, Thiruvananthapuram. The first appellate court on an independent consideration of the evidence on record confirmed the findings of the trial court and dismissed the appeal. Hence the Second Appeal. 5. At the time of hearing, the learned counsel appearing for the appellant raised only one point for consideration. According to the learned counsel, the mandatory provision, namely Section 16(c) of the S.A. 123/1996. 3 Specific Relief Act has not been complied with by the plaintiff and that should result in the dismissal of the suit. 6. It may be recollected that the plaintiff relied on Ext.A1 agreement for sale in support of his case. He has examined five other witnesses apart from himself to prove the agreement. Both the courts below, after independent consideration of the evidence before them, came to the conclusion that the plaintiff has succeeded in establishing his case. Both the courts found that Ext.A1 was infact executed by the defendant and he had received Rs.5000/- as advance towards sale consideration. Both the courts held that the plaintiff has succeeded in discharging the burden cast on him. 7. P.W.2 is one of the witnesses to Ext.A1 document. The evidence of P.W.3 is not of much assistance to the plaintiff and he has only hearsay knowledge about the transaction. P.W.4 is a scribe to Ext.A1 document. It is relying on the evidence of P.Ws.1, 2 and 4 the court below came to the conclusion that the claim of the defendant that Ext.A1 document was a fabricated and concocted one cannot be accepted. The trial court in fact compared the signatures in Ext.A1 S.A. 123/1996. 4 with other admitted signatures available in the court and found that they are almost similar. Plaintiff was also successful in establishing that he has sufficient funds to go through with the transaction. It has come out in evidence that the defendant had 26 cents of land, out of which he had sold 18 cents to Vasundharan and out of the balance 8 cents, six and a half cents was agreed to be sold to the plaintiff. The court below have also noticed that the stamp paper on which Ext.A1 was drawn up was bought in the name of the defendant. 8. Coming to the specific contention by the appellant in the appeal, it is useful to refer to Section 16(c) of the Specific Relief Act. It reads as follows: “16. Personal bars to relief.- Specific performance of a contract cannot be enforced in favour of a person- (a)................. (b)................ (c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been S.A. 123/1996. 5 prevented or waived by the defendant.” 9. It is no doubt true that the above provision is mandatory in nature. It is necessary for the plaintiff to aver and prove that he has always been ready and willing to perform his part of the contract. On failure to aver and prove the above facts, the suit will have to be dismissed. Coming to the case on hand, on going through the plea in paragraph 4 of the plaint, the above aspects are specifically mentioned. One must notice that there is no particular form in which the plea has to be made. Of course the statute suggests a form. On going through paragraph 4 of the plaint, it is seen stated that the plaintiff was and is ready and willing to perform his part of the contract. He then goes on to state about the notice to the defendant etc. Coming to the evidence of P.W.1 it is true that the exact words have not been used by him, but he had stated that he had requested the defendant to execute the sale deed in his favour and has shown his willingness to pay the balance sale consideration. In fact, the trial court has considered this aspect while dealing with issue No.2 in the suit. There is a specific finding that the plaintiff was ready and willing throughout to perform his part S.A. 123/1996. 6 of the contract. The appellate court has in paragraph 7 of its judgment has found that the requirements of the provision are satisfied. 10. It could thus be seen that both the courts below have considered all the aspects in detail and had come to the conclusion that Ext.A1 is infact executed by the defendant and he is bound to execute the sale deed. The finding of both the courts are based on appreciation of the evidence in the case and does not call for any interference at all. No substantial questions of law arise for consideration in this appeal. The appeal is without merit and it is accordingly dismissed with costs to the respondent. P. BHAVADASAN, JUDGE sb. S.A. 123/1996. 7 P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 123 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 18.06.2009