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TMI Blog2015 (9) TMI 1608X X X X Extracts X X X X X X X X Extracts X X X X ..... parties. It is equally well settled that relief of specific performance is discretionary but not arbitrary, hence, discretion must be exercised in accordance with sound and reasonably judicial principles. The cases providing for a guide to courts to exercise discretion one way or other are only illustrative, they are not intended to be exhaustive, In England, the relief of specific performance pertains to the domain of equity, but in India the exercise of discretion is governed by the statutory provisions. In the instant case while deciding the issue as to whether the agreement of 1967, allegedly executed by the Defendants, can be enforced, the Court had to consider various discrepancies and series of legal proceedings before the agreement alleged to have been executed. In the agreement dated 2.9.1967, there is reference of earlier agreement dated 29.11.1965 where under ₹ 18,000/- was paid to the Defendant-Appellant which was denied and disputed. Curiously enough that agreement dated 29.11.1965 was neither filed nor exhibited to substantiate the case of the Plaintiff - Indisputably, various documents including order-sheets in the earlier proceedings including execution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... described in the Schedule to the plaint fell to the joint share of the first Plaintiff and his younger brother R.A. Rasheed. The date of the decree is 22.08.1950. The first Plaintiff and his younger brother thus became the exclusive joint owners of the suit schedule property and from the date of the High Court decree namely 22.08.1950. The first item of the suit schedule which was designed as a Cinema building was leased jointly by the first Plaintiff and his younger brother R.A. Rasheed to late N.K. Subbaiah Shetty and one Rattanhalli Ramappa jointly by means of a registered lease deed dated 26.02.1951 specifying therein a period of 15 years for the running of the lease. The said lease by the terms provided inter alia for a monthly rent of ₹ 400/- to be paid in equal halves to the first Plaintiff and R.A. Rasheed. The lessees had to advance ₹ 10,000/- which will be treated as a charge on item No. 1 of suit Schedule. All the equipments such as cinema projector, electric generator, furniture and other accessories were purchased by the said lessees which they had to provide under the contract and the theatre was equipped for showing films. It was also a term under the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iah Shetty, the possession which accrued to the Plaintiff on the execution of the deed dated 05.08.1953 was, therefore, free from all liability to pay any amount to N.K. Subbaiah Shetty. R.A. Rasheed, the brother of the 1st Plaintiff executed a pronote dated 24.01.1953 benami in the name of C. Shambulingaiah the real beneficiary being the 1st Defendant. The Defendant filed a suit in O.S. 1/54 as Power of Attorney Holder of C. Shambhulingaiah against R.A. Rasheed in the then Court of Sub-Judge, Mandya and obtained ex parte decree and in Execution No. 38/54 got the undivided half share of R.A. Rasheed in the Suit Schedule 1st item attached. Thereafter, in Ex. No. 5/56 the 1st Defendant as Power of Attorney holder sued out further execution and brought to sale the half share of R.A. Rasheed and purchased the same in the name of C. Shambulingaiah in Court auction held on 12.07.1956, the bid amount being ₹ 8359.37. Though the half share itself was worth a lakh of rupees at lease R.A. Rasheed himself was kept in dark throughout as services of all the processes were made to appear, as though R.A. Rasheed had refused them. Again in the name of Shambulingaiah who was the brother-in-la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ack of the 1st Plaintiff and got the same confirmed on 06.04.1962. The sale and subsequent confirmation is vitiated and void as only half share was attached, but against the attachment itself the full properties including the properties which were not subject matter of the attachment were brought to sale and purchased. 6. Since the first Defendant openly boasted that he had in reality become the owner of the entire properties of the first Plaintiff, the first Plaintiff made inquiries and came to know about the treacherous and illegal acts of the 1st Defendant who through abuse of processes of court had maneuvered to get the sale held and confirmed including the half share of this first Plaintiff, and the first Plaintiff, therefore, got filed Misc. No. 49 of 1962 to set aside the sale on the ground of fraud. There was protracted litigation which ended in a compromise petition dated 17.02.1966 being filed whereby the first Plaintiff agreed to pay ₹ 7000/- within three months from the date of compromise and if such payment was made within time the petition to stand allowed and in default the petition to stand dismissed. The first Plaintiff thereafter paid the amount in 3 inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 1 of the suit schedule all along, as he was in possession of the same ever since 01.08.1953. However, in the morning of 05.09.1967, the first Plaintiff was surprised to find himself under arrest along with his sons and another Pasha, a relative, by the police authorities. It was learnt that the first Defendant had lodged a complaint to the police that he had been dispossessed of item No. 1 of suit schedule Cinema Building even though he had no possession. There were account books and other important papers and several materials forming part of the cinema building belonging to the first Plaintiff and kept within the premises of item No. 1 of the suit schedule. The first Defendant with whom K.N. Subramanya Shetty and N.K. Subbaiah Shetty were in collusion with the help of police got the first Plaintiff dislodged from item No. 1 of suit schedule with the cinema equipment, furniture etc. The papers included among others receipt executed by Defendant No. 1 and N.K. Subbaiah Shetty for monies paid by the Plaintiff from time to time and the accounts books contained entries in respect of this payment. The first and N.K. Subbaiah Shetty, thus, were successful in laying their hands on valu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Defendant for himself and as Power of Attorney Holder of 2nd Defendant executed an agreement of sale dated 2.9.1967 agreeing to convey the plaint schedule properties in favour of the Plaintiff? 3) Whether under the said agreement the Plaintiff paid the amount to the 1st Defendant as mentioned in para 11(a)(b) (c)(d) of the plaint? 4) Whether the Plaintiffs are entitled to the specific performance of the agreement of the sale and for possession of the schedule properties? 5) Whether the Plaintiffs are entitled to ₹ 93,600/- towards the mesne past profits? 6)(a) Whether the proceedings in Ex. No. 217/61 and Misc. No. 34/69 and orders thereon are fraudulent and without jurisdiction and as such they are void, illegal and wrongful as stated in para 1/4 of the plaint? (b) Whether the Defendants are estopped in challenging the suit agreement dated 2.9.67 by their conduct for the reasons stated in para 16 of the plaint? (c) Whether the Plaintiffs prove that they are ready and willing to perform their part of contract of sale as per agreement dated 2.9.1967? (7) Whether the Defendants are entitled to compensatory costs Under Section 35(a) of Code of Civil Proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pated in a city of Mysore, that too near the first Defendants shop which is in the business centre of Mysore City. It is admitted by all the witnesses that there are several shops of stamps vendors and advocates offices. If that be the case, that would not have been any difficulty to secure the required paper to write Ex. P.1. Further, if we carefully go through the contents of Ex. P.1, it goes to show that all the suit properties are agreed to have been sold for ₹ 25,000/- and the amount of ₹ 20,500/- has been paid to the Defendant earlier to 02-09-67. Further, it is also clear that the amount of ₹ 4,500/- was also paid to the Defendant 1. That means only the stamp papers to get the registered sale deed were required to be obtained. No reasons are assigned the any of the Plaintiffs witnesses as to what was the difficulty in purchasing the stamp paper to execute the reg. Sale deed regarding the sale mentioned in Ex. P.1. It is not the case of the Plaintiff, that they were unable to purchase required stamp papers on the date of Ex. P.1 due to paucity of the funds. If it was really a genuine sale or tried to be depicted before Court, definitely the reg. Sale deed it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certainly admissible Under Section 13 of the Indian Evidence Act in support of the claim of the Plaintiffs regarding execution of the document - Ex. P.1 by Defendant No. 1. Therefore, the Trial Court was not at all justified in ignoring such evidence on the ground that the judgment of the Criminal Court is not binding on the Civil Court. May be, that the judgment of the Criminal Court is not binding on the Civil Court. But, the observations made by a competent Court with reference to certain document would certainly be relevant even in a civil case, where the very same document was a subject matter of challenge. 18. In the instant case, it is not in dispute that the very same document - Ex. P.1 was produced before the Criminal Court wherein, Plaintiff No. 1 was prosecuted on the charge of trespass and the Criminal Court having examined the said document has made certain observations with reference to such document and that being so, when the very same document sought to be questioned in a civil case, the observations by a Criminal Court will certainly have relevance. In fact, the learned Counsel for the Respondents had advanced a contention that this document was created/concoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cument other the document required by Law to be attested. It shows that the signature of the person alleged to have signed a document i.e. execution must be proved by the evidence with the signature purporting to be that of the executants is in his handwriting and the other matter in the document i.e. its body must also be proved by proof of handwriting of a person purporting to have written the document. In the instant case, the agreement - Ex. P.1 was stated to have been written by its scribe - PW. 1 at the instructions of Defendant No. 1 and after the document was written, it was signed by Defendant No. 1. Therefore, what was required to be proved in the instant case by the Plaintiffs to prove the execution of document - Ex. P.1 was that it contains the signature of Defendant No. 1. 14. On the issue of execution of the agreement, the Court came to the conclusion that there are consistent evidence of all the three witnesses that the agreement was executed by the 1st Defendant. Accordingly, the appeal was allowed and the judgment of trial court was set aside. 15. Hence, this appeal by special leave by the legal representatives of Defendant No. 1. 16. Mr. K. Ramamurthy, le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was as to whether there was a binding agreement executed by the Defendants-Appellants. Learned senior Counsel submitted that the High Court after considering the evidence of the scribe and other witnesses and also considering the evidence produced in a criminal proceeding and the finding recorded in the said proceeding has come to the right conclusion that the agreement was executed by the Defendants. The High Court further came to the finding that payment of consideration amount to the Defendants has been proved and that the signature on the agreement was admitted by Nanjappa, who was a signatory of the agreement. According to the learned senior Counsel, the finding recorded by the High Court is based on appreciation of evidence and, therefore, such finding of fact needs no interference by this Court. 18. Before we express our view on the findings recorded by both the trial court and the High Court while passing a decree for specific performance, we would like to discuss first the settled proposition of law in this regard. 19. There is no dispute that even a decree for specific performance can be granted on the basis of oral contract. Lord Du Parcq in a case (AIR 1946 Privy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to grant the decree for specific performance. It also committed manifest illegality in reversing the concurrent finding of facts recorded by the trial court as well as the first Appellant court, namely the Appellant has always been ready and willing to perform his part of the contract. 23. It is equally well settled that relief of specific performance is discretionary but not arbitrary, hence, discretion must be exercised in accordance with sound and reasonably judicial principles. The cases providing for a guide to courts to exercise discretion one way or other are only illustrative, they are not intended to be exhaustive, In England, the relief of specific performance pertains to the domain of equity, but in India the exercise of discretion is governed by the statutory provisions. 24. In the case of Mayawanti v. Kaushalya Devi (1990) 3 SCC 1, this Court observed as under: 8. In a case of specific performance it is settled law, and indeed it cannot be doubted, that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract. The Law of Contract is based on the ideal of freedom of contract and it provides the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , yet, when it is asked, vir bonus est quis? The answer is, qui consulta patrum, qui leges juraque servat. And as it is said in Rooke's case, that discretion is a science not to act arbitrarily according to men's wills and private affections; so the discretion which is to be executed here, is to be governed by the rules of law and equity, which are not to oppose, but each in its turn to be subservient to the other. This discretion, in some cases follows the law implicitly; in others assists it, and advances the remedy; in others, again, it relieves against the abuse, or allays the rigour of it; but in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to this Court. That is a discretionary power, which neither this, nor any other court, not even the highest, acting in a judicial capacity, is by the constitution entrusted with. This description is full and judicious, and what ought to be imprinted on the mind of every Judge. 16. The principle which can be enunciated is that where the Plaintiff brings a suit for specific performance of contract for sale, the law insists upon a condition precedent to the grant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich was denied and disputed. Curiously enough that agreement dated 29.11.1965 was neither filed nor exhibited to substantiate the case of the Plaintiff. The High Court put reliance on the agreement dated 2.9.1967 written in a quarter sheet of paper merely because of the fact that said quarter sheet of paper was produced before the Magistrate in a criminal proceeding. In our view, the High Court is not correct in holding that there is no reason to disbelieve the execution of the document although it was executed on a quarter sheet of paper and not on a proper stamp and also written in a small letter. The High Court also misdirected itself in law in holding that there was no need of the Plaintiff to have sought for the opinion of an expert regarding the execution of the document. 29. Indisputably, various documents including order-sheets in the earlier proceedings including execution case were filed to nullify the claim of the Plaintiff regarding possession of the suit property but these documents have not been considered by the High Court. In our considered opinion the evidence and the finding recorded by the criminal courts in a criminal proceeding cannot be the conclusive proo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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