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CASE NO.: Appeal (civil)  6329-6330 of 2004

PETITIONER: B.K. Sri Harsha (D) By L.R. & Anr

RESPONDENT: M/s Bharath Heavy Electricals Ltd

DATE OF JUDGMENT: 08/02/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

CIVIL APPEAL NOS.6329-6330 OF 2004

Dr. ARIJIT PASAYAT, J.

1.      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.    

2.      Background facts in a nutshell are as follows:

Two 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.   Since 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.            

3.      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.  

4.      It is submitted that this was not an appropriate way for

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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.        5.      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 interference.

6.      It is to be noted that pages 4 to 18 of judgment (in the  paper book) are quotations from the Trial Court’s judgment.   The 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.  That 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.   

7.      A 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.    8.      The 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:   "5. 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.  6. The 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

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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.  They 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 suit."  

8.      The 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 proper.       

9.      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.