M.R.SHAH, J. - (1.) Feeling aggrieved and dissatisfied with the impugned judgment and order dated 27.11.2017 passed by the High Court of Judicature at Madras in Appeal Suit No. 94 of 2010 by which the High Court has allowed the said appeal by quashing and setting aside the judgment and decree passed by the learned Trial Court dismissing the suit for specific performance and consequently decreeing the suit, the original defendant has preferred the present Civil Appeal No. 6014 of 2021. 1.1 Feeling aggrieved and dissatisfied with the judgment and order dated 06.01.2020 rejecting the Review Application No. 71 of 2019 in Appeal Suit No. 94 of 2010, the defendant as review applicant has preferred the present Civil Appeal No. 6015 of 2021.
(2.) The facts leading to the present appeals in a nutshell are as under:- 2.1 An agreement for sale of the property situated in Kaspa Coimbatore was entered into between the plaintiff and the defendant wherein the defendant agreed to sell the same for a sale consideration of Rs. 16.20 lakhs to the plaintiff. A part sale consideration of Rs.3,60,001/- was paid at the time of execution of the agreement to sell. There were certain conditions stipulated in the agreement to sell. One of the conditions was that the defendant as original owner was required to evict the tenants from the property in question and thereafter to execute the sale deed on receipt of the full sale consideration. The plaintiff sent a legal notice to the defendant asking to evict the tenants from the property in question and to execute the sale deed on receipt of the balance sale consideration vide notice dated 01.07.2006. 2.2 That thereafter the plaintiff filed the present suit before the learned Trial Court for specific performance of the contract. It was the case on behalf of the plaintiff that he was ready and willing to perform his part of the contract but the defendant did not evict the tenants and come forward to execute the sale deed. Therefore, it was averred in the plaint that the defendant has to evict the tenants and perform his part of the contract and execute the sale deed. It was pleaded on behalf of the plaintiff that he was ready with the cash in his savings account and, therefore, he was always ready to perform his part of the contract. The defendant contested the suit by filing the written statement. Readiness and willingness on the part of the plaintiff and to perform the specific part of the contract was specifically denied. It was submitted that vacant possession was already known to the plaintiff as the tenants had been vacated and inspite of such the plaintiff was not ready to pay the remaining consideration. The learned Trial Court framed the following issues:- "1. Whether the plaintiff is entitled for specific performance? 2. Whether the plaintiff was ready and willing to purchase the property? 3. To what relief? " 2.3 Both the sides led the evidence, documentary as well as oral. On appreciation of evidence and considering the pleadings in the plaint, the learned Trial Court held the issue of readiness on the part of the plaintiff in favour of the plaintiff, however, held that the plaintiff was not willing to get the sale deed executed as it is, and, therefore, held the issue of willingness against the plaintiff. The Trial Court also held that the defendant has failed to prove that tenants had vacated the suit property as claimed, however, the learned Trial Court held on willingness against the plaintiff by observing that the plaintiff has not shown the willingness to purchase the property with the tenants and there are no such pleadings in the plaint and that the plaintiff has not elected to purchase the property as its nature. Therefore, the Trial Court on appreciation of the evidence ultimately held that the plaintiff was not at all willing to purchase the property with the tenants. Accordingly, the learned Trial Court dismissed the suit and refused to pass the decree for specific performance of the contract and directed the defendant to refund the advance amount of Rs.3,60,001/- with interest @ 18% p.a. from the date of agreement till the date of realization, to be paid within a period of two months. The learned Trial Court also directed that there shall be a charge over the property till such amount is realized by the plaintiff from the defendant. 2.4 Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned Trial Court dismissing the suit for specific performance, the plaintiff filed the appeal suit before the High Court. By the impugned judgment and order, relying upon the affidavit filed before the High Court in which for the first time the plaintiff stated that he is ready and willing to purchase the property with the tenants, the High Court without even re-appreciating the entire evidence on record and even without framing the points for determination has allowed the appeal by the impugned judgment and order and has set aside the judgment and decree passed by the learned Trial Court, and consequently has decreed the suit for specific performance of the contract. 2.5 Feeling aggrieved and dissatisfied with the impugned judgment and order/decree passed by the High Court - First Appellate Court allowing the appeal and consequently decreeing the suit for specific performance of the contract, the original defendant has preferred the present appeal being Civil Appeal No.6014 of 2021. After the impugned judgment and order/decree, the defendant filed the review application before the High Court, which has been dismissed, which is the subject matter of Civil Appeal No.6015 of 2021.
(3.) Shri Ratnakar Dash, learned senior counsel appearing for the appellant/defendant has vehemently submitted that in the facts and circumstances of the case, the High Court has materially erred in allowing the appeal and decreeing the suit for specific performance of the contract. 3.1 It is vehemently submitted by the learned senior counsel appearing for the appellant that the impugned judgment and order passed by the High Court as a First Appellate Court cannot be sustained. It is submitted that as such the High Court has not exercised the appellate jurisdiction vested in it, particularly, while exercising the jurisdiction under Section 96 read with Order XLI Rule 31 of the Civil Procedure Code. It is submitted that the High Court has not at all re-appreciated the evidence on record and without even discussing the evidence on record and even without raising the points for determination on the basis of the issues which were framed by the learned Trial Court, the High Court has allowed the appeal and has decreed the suit for specific performance, which otherwise is not permissible. 3.2 It is further submitted by learned senior counsel appearing on behalf of the appellant that there is no re-appreciation of evidence on the issue of willingness on the part of the plaintiff, which was dealt with and considered by the learned Trial court in detail and the issue which was held against the plaintiff. 3.3 It is submitted that even the High Court has erred in passing the impugned judgment and order relying upon the affidavit of the respondent-plaintiff, which was filed before the High Court in which for the first time the plaintiff came out with a case that he is ready and willing to purchase the property with tenants. It is submitted that such a course adopted by the High Court is wholly impermissible under the law. 3.4 It is submitted that what was not pleaded by the plaintiff in the plaint on willingness to purchase the property with tenants has now been permitted by the High Court relying upon the affidavit filed before the High Court for the first time. It is submitted that the affidavit filed by the plaintiff before the High Court that he is ready and willing to purchase the property with tenants is just contrary to the pleadings in the plaint and even the findings recorded by the learned Trial Court. 3.5 It is further submitted by learned senior counsel appearing for the appellant that as such the plaintiff never agreed to purchase the property with tenants and as per the case of the plaintiff and so averred in the plaint, it was pleaded that it was the responsibility of the defendant to evict the tenants and hand over the peaceful vacant possession and execute the sale deed. It is submitted that, therefore, thereafter it was not open on the part of the plaintiff to submit that he is ready and willing to purchase the property with tenants and that too by an affidavit for the first time filed before the High Court. 3.6 It is submitted that without even permitting the plaintiff to amend the plaint, the course adopted by the High Court permitting to change his stand by way of an affidavit is unknown to law and the procedure to be followed under the provisions of the CPC. Making above submissions and relying upon the decisions of this Court in the case of B.V. Nagesh and Anr. Vs. H.V. Sreenivasa Murthy, (2010) 13 SCC 530, H. Siddiqui (Dead) by LRs. Vs. A. Ramalingam (2011) 4 SCC 240 and State Bank of India and Anr. Vs. Emmsons International Limited and Anr. (2011) 12 SCC 174, it is prayed to allow the present appeal and quash and set aside the impugned judgment and order passed by the High Court and consequently dismiss the suit. ;