K. KARUPPURAJ versus M. GANESAN

Citation: [2021] 8 S.C.R. 743 · Decided: 04-10-2021 · Supreme Court of India · Bench: M.R. SHAH · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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[2021] 8 S.C.R. 743
743
K. KARUPPURAJ
v.
M. GANESAN
(Civil Appeal Nos. 6014-6015 of 2021)
OCTOBER 04, 2021
[M.R.SHAH AND A.S. BOPANNA, JJ.]
Specific Performance – Suit for specific performance of
contract filed by plaintiff – Dismissed – First appeal, allowed by
High Court – Held: For the purpose of passing decree for specific
performance, plaintiff has to prove both readiness and willingness–
Trial court held the issue of willingness against plaintiff by giving
cogent reasons, on appreciation of evidence and considering the
pleadings in the plaint, the same is justified – Plaintiff was not entitled
to decree of specific perfpormance – Impugned judgment set aside
– Decree passed by Trial court, restored – Code of Civil Procedure,
1908.
Code of Civil Procedure, 1908 – s.96, Or.XLI, r.31; Or.VI,
r.17 – First appeal – Disposal of – Held: First appeals are to be
decided after following the procedure under CPC – Reliance upon
the affidavit without amending the plaint and the pleadings is wholly
impermissible under the law – In the present case, the High Court
disposed of the appeal preferred u/Or.XLI r/w s.96 in a most casual
and perfunctory manner.
Allowing the appeals, the Court
HELD:1.1 The High Court has disposed of the appeal
preferred under Order XLI CPC read with Section 96 in a most
casual and perfunctory manner. Apart from the fact that the High
Court has not framed the points for determination as required
under Order XLI Rule 31 CPC, it appears that the High Court
has not exercised the powers vested in it as a First Appellate
Court. The High Court has neither reappreciated the entire
evidence on record nor has given any specific findings on the
issues which were even raised before the Trial Court. As per the
case of the original plaintiff- respondent, the defendant-appellant
was required to evict the tenants and hand over the physical and
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SUPREME COURT REPORTS
[2021] 8 S.C.R.
vacant possession at the time of execution of the sale deed on
payment of full sale consideration. Even in the suit notice issued
by the plaintiff, the plaintiff called upon the defendant to evict the
tenants and thereafter execute the sale deed on payment of full
consideration from the plaintiff. Even when the pleadings and
the averments in the plaint are considered, it appears that the
plaintiff was never willing to get the sale deed executed with
tenants and/or as it is. It was the insistence on the part of the
plaintiff to deliver the vacant possession after evicting the tenants.
Therefore, on the basis of the pleadings in the plaint and on
appreciation of evidence, the Trial Court held the issue of
willingness against the plaintiff. However, before the High Court,
the plaintiff filed an affidavit stating that he is now ready and willing
to get the sale deed executed with respect to the property with
tenants and the High Court relying upon the affidavit in the first
appeal considered that as now the plaintiff is ready and willing to
purchase the property with tenants and get the sale deed executed
with respect to the property in question with tenants, the High
Court has allowed the appeal and decreed the suit for specific
performance. The aforesaid procedure adopted by the High Court
relying upon the affidavit in a First Appeal by which virtually
without submitting any application for amendment of the plaint
under Order VI Rule 17 CPC, the High Court as a First Appellate
Court has taken on record the affidavit and as such relied upon
the same. Such a procedure is untenable and unknown to law.
First appeals are to be decided after following the procedure to
be followed under the CPC. The affidavit, which was filed by the
plaintiff and which has been relied upon by the High Court is just
contrary to the pleadings in the plaint. There were no pleadings
in the plaint that he is ready and willing to purchase the property
and get the sale deed executed of the property with tenants and
the specific pleadings were to hand over the peaceful and vacant
possession after getting the tenants evicted and to execute the
sale deed. The proper procedure would have been for the plaintiff
to move a proper application for amendment of the plaint in
exercise of the power under Order VI Rule 17 CPC, if at all it
would have been permissible in a first appeal under Section 96
read with Order XLI CPC. However, straightaway to rely upon
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the affidavit without amending the plaint and the pleadings is
whol

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