Sri Harsha (D) by L.R. & Anr Vs. M/S Bharath Heavy Electricals Ltd  Insc
153 (8 February 2008)
Arijit Pasayat & P. Sathasivam
APPEAL NOS.6329-6330 OF 2004 Dr. ARIJIT PASAYAT, J.
Challenge in these appeals is to the judgment of the learned Single Judge of
the Karnataka High Court dismissing the First Appeals filed under Section 96 of
the Code of Civil Procedure, 1908 (in short 'CPC'). The First Appeals were
filed against the judgment and decree passed in OS No.285/1984 and OS No.286/1984
on the file of XXXI Additional City Civil Judge, Bangalore, decreeing the suit for specific performance.
Background facts in a nutshell are as follows:
suits were filed by the respondent, which were consolidated. The respondents as
plaintiff sought specific performance in respect of certain properties which
were allegedly agreed to be sold by the appellants Smt. B. Saroja Devi and her
husband Sri B.K. Harsha under the contract.
the validity and the genuineness of two agreements Exhibits P-1 and P-2 were
not disputed, the Trial Court was of the view that the only question which
arises for consideration was whether the respondent was entitled to the relief
of specific performance. The Trial Court came to hold that the
respondent-company was always ready and willing to perform its part of the
contract. It was also found that the two agreements were never revoked or
cancelled by the appellants at any time. Further, it was held that the suit for
specific performance was filed within the period of limitation. The Trial Court
further came to hold that the respondent-company being in possession of the
suit property from 2.5.1974, equality lies in its favour in granting specific
performance and more so, when major portion of the agreement consideration had
already been paid. Therefore, both these suits were decreed. The High Court as
noted above, dismissed the First Appeals.
Learned counsel for the appellants submitted that though the judgment and
decree impugned run to several pages, major part of it consists of the
averments and reproduction of the part of the trial Court's judgment.
is submitted that this was not an appropriate way for disposal of the First
Appeals. It was also submitted that some of the conclusions were legally unsupportable.
It was submitted that when the suit is for specific performance, the special
features of such a suit have to be kept in view, which has not been done.
Learned counsel for the respondent on the other hand submitted that the High
Court had referred to the factual and legal position in detail and, therefore,
the judgment and decree do not suffer from any infirmity to warrant
is to be noted that pages 4 to 18 of judgment (in the paper book) are
quotations from the Trial Court's judgment.
quotation was made after briefly referring to the major issues. Upto page 21
contentions were noted. Learned Single Judge dismissed the appeals in purported
exercise of power under Order 41 Rule 1 CPC. Though strictly speaking, the
judgment cannot be said to be in limine dismissal of the appeals, yet the
manner of disposal of the First Appeals leaves much to be desired. When triable
issues are involved, the appeals should not be summarily dismissed or disposed
of in the manner done. The suit was for specific performance and the Trial
Court recorded findings about adverse possession.
being so, according to learned counsel for the appellants, triable issues are
involved. It was pointed out that the stand of the appellants was relatable to
lack of readiness, alleged latches, limited novation.
bare reading of the High Court's judgment shows that there was no serious
effort to analyse the various points raised. It was submitted that there was
notice terminating the agreement. It was categorically stated that plaintiffs
were never ready and willing to fufil their part of contract.
nature of suit for specific performance of contract has been highlighted by
this Court in several cases. In Rajeshwari v. Puran Indoria (2005 (7) SCC 60),
it was inter- alia observed as under:
Normally, a suit for specific performance of an agreement for sale of immovable
property involves the question whether the plaintiff was ready and willing to
perform his part of the contract in terms of Section 16 of the Specific Relief
Act, whether it was a case for exercise of discretion by the court to decree
specific performance in terms of Section 20 of the Specific Relief Act and
whether there were laches on the part of the plaintiff in approaching the court
to enforce specific performance of the contract. In some cases, a question of
limitation may also arise in the context of Article 54 of the Limitation Act on
the terms of the agreement for sale. Other questions like the genuineness of
the agreement, abandoning of the right to specific performance, a novation and
so on, may also arise in some cases. No doubt, a finding on the three primary
aspects indicated earlier would depend upon the appreciation of the pleadings
and the evidence in the case in the light of the surrounding circumstances.
right to specific performance of an agreement for sale of immovable property,
when filed, raises questions of substantial importance between the parties as
to whether the plaintiff has satisfied the requirements of Section 16 of the
Specific Relief Act, whether it is a case in which specific performance of the
contract is enforceable in terms of Section 10, whether in terms of Section 20
of the Act, the discretion to decree specific performance should be exercised
by the court and in some cases, whether the suit was barred by limitation and
even if not, whether the plaintiff has been guilty of negligence or laches
disentitling him to a decree for specific performance. These questions, by and
large, may not be questions of law of general importance. But they cannot also
be considered to be pure questions of fact based on an appreciation of the
evidence in the case.
are questions which have to be adjudicated upon, in the context of the relevant
provisions of the Specific Relief Act and the Limitation Act (if the question
of limitation is involved). Though an order in exercise of discretion may not
involve a substantial question of law, the question whether a court could, in
law, exercise a discretion at all for decreeing specific performance, could be
a question of law that substantially affects the rights of parties in that
High Court has also given a finding regarding adverse possession in a suit for
specific performance. Above being the position, there is total non-application
of kind. The manner in which the appeals were dismissed cannot be said to be
Above being the position, the impugned judgment deserves to be set aside. The
matter is remitted to the High Court to consider the matter afresh. The appeals
are accordingly disposed of. There shall be no order as to costs.
Pages: 1 2 3 4