KAMAL KUMAR versus PREMLATA JOSHI & ORS.

[2019] 1 S.C.R. 54

[2019] 1 S.C.R.

KAMAL KUMAR

PREMLATA JOSHI & ORS.

(Civil Appeal No. 4453 of 2009)

JANUARY 07, 2019

[ABHAY MANOHAR SAPRE AND INDU MALHOTRA, JJ.]

Constitution of India – Art.136 – Scope of interference –Concurrent findings of fact by lower courts – Held: The concurrentfindings of facts recorded by the two Courts below on all the materialCissues are binding on Supreme Court when there is no perversity orillegality in the findings – In the instant case, suit for specificperformance of contract was filed in relation to the suit land – Courtsbelow held that the plaintiff failed to prove his readiness andwillingness to perform his part of the contract – The issue ofDreadiness and willingness, is the most important issue for consideringthe grant of specific performance of the contract and the samehaving been held by the two Courts below on appreciation ofevidence against the plaintiff, it is binding on Supreme Court – Itbeing essentially question of fact, Supreme Court is not inclinedto again appreciate the entire evidence while hearing the appealEunder Art.136 of the Constitution – It is more so when the appellantwas also not able to point out any material perversity or/and illegalityin the finding so as to call for any interference therein by SupremeCourt – Specific performance – Specific Relief Act, 1963 – ss.16(c),20, 21, 22 and 23.F

Specific Performance – Essential requirement to establishgrant of specific performance – Grant of relief of specificperformance is discretionary and equitable relief – The materialquestions, which are required to be gone into for grant of the reliefof specific performance, are whether there exists valid andGconcluded contract between the parties for sale/purchase of thesuit property; whether the plaintiff has been ready and willing toperform his part of contract and whether he is still ready and willingto perform his part as mentioned in the contract; whether theplaintiff has, in fact, performed his part of the contract and, if so,how and to what extent and in what manner he has performed and

whether such performance was in conformity with the terms of thecontract; whether it will be equitable to grant the relief of specificperformance to the plaintiff against the defendant in relation tosuit property or it will cause any kind of hardship to the defendantand, if so, how and in what manner and the extent if such relief iseventually granted to the plaintiff; and lastly, whether the plaintiffis entitled for grant of any other alternative relief, namely, refundof earnest money etc. and, if so, on what grounds – These questionsare part of the statutory requirements – These requirements have tobe properly pleaded by the parties in their respective pleadingsand proved with the aid of evidence in accordance with law – It isonly then the Court is entitled to exercise its discretion andaccordingly grant or refuse the relief of specific performancedepending upon the case made out by the parties on facts – SpecificRelief Act, 1963 – ss.16(c), 20, 21, 22 and 23.

Dismissing the appeal, the Court

HELD: 1. In the instant case, the findings apart from beingconcurrent are such that they are capable of being recorded onappreciation of evidence adduced by the parties. These findingsare neither against the pleadings nor the evidence and nor anyprinciple of law. These findings are also not shown to be perverseto the extent that no judicial person can ever record such findings.[Para 9][56-G-H; 57-A]

2. In the case at hand, the two Courts below have gone intothe material questions in the light of pleadings and evidence andrecorded categorical finding against the plaintiff holding thatthe plaintiff was neither ready and nor willing to perform his partof the contract and, therefore, he was not entitled to claim therelief of specific performance of the contract against the defendantsin relation to the suit land. It was also held that the plaintiff wasnot entitled to claim any relief of refund of earnest money becauseit was liable to be adjusted as agreed between them. [Para 12][57-F-G]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4453of 2009.

From the Judgment and Order dated 08.01.2008 of the HighCourt of Madhya Pradesh at Jabalpur in F.A. No. 808 of 2000.

ANavin Prakash, Adv. for the Appellant.

Sumit Kumar Sharma, Niraj Sharma, Advs. for the Respondents.

The Judgment of the Court was delivered by

ABHAY MANOHAR SAPRE, J. 1. This appeal is directedBagainst the final judgment and order dated 08.01.2008 passed by theHigh Court of Madhya Pradesh at Jabalpur in F.A. No.808 of 2000whereby the Division Bench of the High Court dismissed the first appealfiled by the appellant herein and affirmed the judgment and decree dated31.08.2000 passed by the Additional District Judge, Harda in Civil SuitNo.19-A/97.C

2. Few facts need mention infra for the disposal of this appeal.

3. The appellant is the plaintiff whereas the respondents are thedefendants in the civil suit out of which this appeal arises.

4. The appellant filed the civil suit against the respondents claimingDspecific performance of the contract in relation to the suit land. Therespondents contested the suit.

5. By judgment/decree dated 31.8.2000, the Trial Court dismissedthe suit. The plaintiff felt aggrieved and filed first appeal before the HighCourt of M.P. at Jabalpur. By impugned judgment, the High CourtEdismissed the appeal and affirmed the judgment and decree of the TrialCourt, which has given rise to filing of this appeal by way of specialleave by the appellant(plaintiff) before this Court.

6. Heard Mr. Navin Prakash, learned counsel for the appellantand Mr. Sumit Kumar Sharma, learned counsel for the respondents.

7. Having heard the learned counsel for the parties and on perusalof the record of the case, we find no merit in this appeal.

8. In our considered opinion, the concurrent findings of factsrecorded by the two Courts below on all the material issues are bindingon this Court. It is much more so when we are unable to notice any kindGof perversity or illegality in the findings.

9. In other words, the findings apart from being concurrent aresuch that they are capable of being recorded on appreciation of evidenceadduced by the parties. These findings are neither against the pleadingsnor the evidence and nor any principle of law. These findings are also

not shown to be perverse to the extent that no judicial person can everrecord such findings.

10. It is settled principle of law that the grant of relief of specificperformance is discretionary and equitable relief. The materialquestions, which are required to be gone into for grant of the relief ofspecific performance, are First, whether there exists valid and concludedcontract between the parties for sale/purchase of the suit property; Second,whether the plaintiff has been ready and willing to perform his part ofcontract and whether he is still ready and willing to perform his part asmentioned in the contract; Third, whether the plaintiff has, in fact,performed his part of the contract and, if so, how and to what extent andin what manner he has performed and whether such performance wasin conformity with the terms of the contract; Fourth, whether it will beequitable to grant the relief of specific performance to the plaintiff againstthe defendant in relation to suit property or it will cause any kind ofhardship to the defendant and, if so, how and in what manner and theextent if such relief is eventually granted to the plaintiff; and lastly,whether the plaintiff is entitled for grant of any other alternative relief,namely, refund of earnest money etc. and, if so, on what grounds.

11. In our opinion, the aforementioned questions are part of thestatutory requirements (See Sections 16 (c), 20, 21, 22, 23 of the SpecificRelief Act, 1963 and the forms 47/48 of Appendix to of the Code ofCivil Procedure). These requirements have to be properly pleaded bythe parties in their respective pleadings and proved with the aid ofevidence in accordance with law. It is only then the Court is entitled toexercise its discretion and accordingly grant or refuse the relief of specificperformance depending upon the case made out by the parties on facts.

12. In the case at hand, we find that the two Courts below havegone into these questions in the light of pleadings and evidence andrecorded categorical finding against the plaintiff holding that the plaintiffwas neither ready and nor willing to perform his part of the contract and,therefore, he was not entitled to claim the relief of specific performanceof the contract against the defendants in relation to the suit land. It wasalso held that the plaintiff was not entitled to claim any relief of refund ofearnest money because it was liable to be adjusted as agreed betweenthem.

13. In other words, both the Courts below held that the plaintiffhas failed to prove his readiness and willingness to perform his part of

Athe contract. The issue of readiness and willingness, in our view, is themost important issue for considering the grant of specific performanceof the contract and the same having been held by the two Courts belowon appreciation of evidence against the plaintiff, it is binding on this Court.It being essentially question of fact, this Court is not inclined to againappreciate the entire evidence while hearing the appeal under ArticleB136 of the Constitution. It is more so when we find that the appellantwas also not able to point out any material perversity or/and illegality inthe finding so as to call for any interference therein by this Court.14. In view of the foregoing discussion, we find no merit in thisappeal. The appeal thus fails and is accordingly dismissed.C

Devika Gujral

Appeal dismissed.