Prasad Rao Vs. Karturi Surya Kanthamma  INSC 1530 (3 September 2009)
APPELLATE JURISDICTION CIVIL APPEAL NO.2759 OF 2002 Karturi Prasad Rao
...Appellant(s) Versus Karturi Surya Kanthamma ...Respondent(s) O R D E R The
plaintiff-appellant filed a suit for specific performance of agreement dated
29th May, 1976 whereby the defendant-respondent agreed to purchase 3 acres and
6-1/2 guntas of land for a sum of Rs.42,000/-. The appellant claimed that even
though he was always ready and willing to perform his part of the contract, the
respondent did not pay the balance amount and did not get the sale deed
executed. By judgment dated 30th June, 1988, the trial court decreed the suit
and directed the respondent to pay to the appellant Rs.45,105/- together with
interest at the rate of sixteen per cent per annum from the date of suit till
the date of decree and interest at the rate of six per cent per annum from the
date of decree till the date of payment on the amount of Rs.31,000/-. The trial
court further directed the respondent to obtain sale deed in terms of the
agreement within a period of three months.
respondent challenged the judgment and decree of the trial court by filing an
appeal. She also applied for the interim relief, but her prayer for staying the
judgment and decree of the trial court was not granted.
this, the respondent neither paid the amount in terms of the decree of the
trial court nor made any attempt to get the sale deed executed. Therefore, the
appellant filed an application under Section 28 of the Specific Relief Act,
1963 [for short, "the Act"] for rescinding
the contract and for issuance of a direction to the respondent to deliver
possession of the suit property to him. The latter contested the application.
After hearing the parties, the trial court passed order dated 3rd August, 1993,
whereby it directed that the agreement dated 29th May, 1976 shall stand
rescinded. The trial court also directed the respondent to restore possession
of the suit property to the appellant within a period of two months from the
date of the order.
appeal filed by the respondent against the judgment and decree dated 30th June,
1988 was finally dismissed by the Ist Additional District Judge at Raichur vide
judgment dated 29th September, 1997. The lower appellate court confirmed the
findings recorded by the trial court on the issue of readiness and willingness
of the appellant to perform his part of the contract and that the respondent
neither paid the balance amount in terms of the agreement nor made any effort
to obtain the sale deed.
appellate court also took cognizance of order dated 3rd August, 1993 passed by
the trial court and the fact that the said order has not been challenged by the
aggrieved by appellate judgment, the respondent filed second appeal under
Section 100 of the Code of Civil Procedure, which was registered as RSA No.
By the impugned judgment, the High Court allowed the second appeal, set aside
the decree passed by the trial court to the extent it contained a direction to
the respondent to pay interest on Rs.45,105/- and substituted the same by
directing the respondent to pay interest at the rate of sixteen per cent per
annum from the date of suit till the date of decree. The High Court granted
three months' time for making the payment and directed the appellant to hand
over possession of the suit property to the respondent and execute sale deed
within a month.
this appeal by special leave.
heard learned counsel for the parties and carefully gone through the impugned
judgment as also the judgments and decrees of the trial court and lower
appellate court. In our opinion, the High Court committed grave error by
interfering with the concurrent findings of fact recorded by the two courts,
after threadbare consideration of the factual matrix of the case and evaluation
of evidence produced by the parties, that even though the appellant herein was
ready and willing to perform his part of the contract, the respondent herein
neither paid the balance amount nor made any effort to get the sale deed
executed and registered. In the impugned judgment the High Court has nowhere
found that the findings recorded by the courts below were perverse.
there was no occasion for it to upset those findings.
further of the view that the High Court committed serious error in observing
that order dated 3rd August, 1993 passed by the trial court under Section 28 of
the Act, was subject to the final judgment of the appeal preferred by the
respondent against the judgment and decree of the trial court. The High Court
ought to have taken note of the fact that in the absence of any challenge to
order dated 3rd August, 1993, the direction of the trial court that the
contract shall stand rescinded became final and, in that view of the matter, no
decree could have been passed in favour of the respondent enabling her to
secure possession of the suit property by paying the balance consideration and
that too after 26 years of execution of the agreement of sale.
the appeal is allowed, impugned judgment rendered by the High Court in second
appeal is set aside and the judgment and decree of the trial court, which was
confirmed by the lower appellate court, is restored.
......................J. [B.N. AGRAWAL]
......................J. [G.S. SINGHVI]
......................J. [AFTAB ALAM]
September 03, 2009.