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Lakshmi Narayan v. Sahab Jaan - SECOND APPEAL No. 837 of 2006 [2006] RD-AH 17695 (13 October 2006)


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Court No. 24

Second Appeal No. 837 of 2006

Lakshmi Narayan Vs. Sahab Jaan

Hon'ble Umeshwar Pandey, J.

Heard learned counsel for the appellant.

This appeal arises out of the judgment and decree dated 15.7.2006 passed by the lower appellate court whereby the appellant's first appeal has been dismissed and the suit of the plaintiff respondent for specific performance of contract has been decreed.

The plaintiff filed a suit for the aforesaid relief of specific performance of contract stating that an agreement was reached between the parties for transfer of the disputed property in plaintiff's favour for a total consideration of Rs. 30,000/- out of which a sum of Rs. 15,000/- as earnest money was paid and the agreement was executed on 19.5.1995. It was agreed between the parties that the sale deed would be executed by 30.4.1998. A notice was given by the plaintiff to the defendant on 08.01.1998 and thereafter the sale deed was executed on 28.2.1998 though, it was not presented for registration. The defendant left the court premises where this sale deed was prepared and executed without getting it registered. This suit was contested by the appellant defendant inter-alia pleading that though the agreement of sale was executed by him but the sale deed dated 28.2.1998 was got prepared and signed by him under duress and pressure of the plaintiff.  It is further pleaded that the plaintiff had not been always ready and willing to perform his part of the contract by paying remainder consideration of Rs. 15,000/-. Therefore, the suit cannot be decreed.

The trial court as well as the appellate court while considering the case on the basis of the evidence produced by the parties and other materials available on record, have found that the plaintiff was always ready and willing to perform his part of contract and since the payment of the sale as well as subsequent sale deed were admittedly executed by the defendant, there was every justification to accept the plaint case and have thus, decreed the suit. The lower appellate court has specifically dealt with upon the issue as to whether the defendant appellant was always ready and willing to perform his part of contract or not.

Learned counsel appearing for the appellant has tried to emphasise before this court that the question as to whether the plaintiff was always ready and willing to perform his part of contract and pay the remaining sale consideration to the defendant, has not been properly dealt with by both the courts below and the findings recorded in respect thereto are quite erroneous. There was absolutely no material on record to show that the plaintiff was actually ready and willing before and after filing of the suit to perform his part in the contract and pay the aforesaid amount to the defendant.

A perusal of the judgment of the lower appellate court challenged in this appeal demonstrates that the courts below after full scrutiny of the evidence available on record, have found that the plaintiff respondent at no point of time before filing of the suit had faulted in performing his part of contract.  The court has thoroughly discussed the relevance of the fact that on 28.2.1998 when the plaintiff took the defendant to the premises of the office of Sub-Registrar for executing the sale deed and getting it registered and has thus held that this conduct of him fully demonstrates to his readiness and willingness to perform his part of the contract during the period within which the sale deed was to be executed. The execution of the sale deed dated 28.02.1998, which was left unregistered, is not disputed by the defendant appellant. The courts below have found that the execution of the sale deed on that date has not been proved to be an act of the defendant done under compulsion, as alleged by him. Therefore, if the stage upto the execution of that sale deed on that date is proved on record to be correct facts, as pleaded in the plaint, it would not be just and proper to hold under such circumstances that the plaintiff was not always ready and  willing to perform his part of contract. Besides also, these findings recorded by the courts below are factual findings and it cannot be brought within the purview of challenge before this court in a second appeal. It is accordingly found that no substantial question of law for decision appears to be there in the present appeal by this court.

The appeal has no merits and on being found without substance is hereby dismissed.




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