Govindan Raghavan v. Gopalans Sudhakaran Povannal Veedu and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **MONDAY, THE 14[TH] DAY OF JUNE, 2021 / 24TH JYAISHTA, 1943 RSA NO. 29 OF 2006** **AGAINST THE JUDGMENT AND DECREE IN AS 67/2003 OF DISTRICT COURT& SESSIONS COURT,PATHANAMTHITTA, PATHANAMTHITTA JUDGMENT DATED 28.02.2003 IN O.S.NO.259/1998 OF THE MUNSIFF'S COURT, ADOOR]** ## **APPELLANT/FIRST DEFEDANT/FIRST RESPONDENT IN A.S:** - **GOVINDAN RAGHAVAN, S/O.LATE GOVINDAN,** - **1** . **AGED 85 YEARS, RESIDING AT EDAYILE POOVANNAL VEEDU, IVERKALA PADINJAATTEKKARA VADAKKE MURI, KUNNATHUR VILLAGE AND TALUK, FROM POOVANNAL, VEEDU, OF DO. (DIED)** - ADDLA2 SMT.R.LEELA, FOSTER DAUGHTER OF - LATE GOVINDAN RAGHAVAN, AGED 55 YEARS, HOUSEWIFE, RESIDING AT EDAYILE POOVANNAL VEEDU, IVERKALA PADINJAATTEKKARA VADAKKE MURI, KUNNATHUR VILLAGE, KOLLAM. *** ADDL.A2 IS IMPLEADED AS LR OF THE SOLE APPELLANT AS PER ORDER DATED 4.7.2008 IN I.A.NO.1759/2007.** **L.SARADA, W/O.NALINADHARAN,** ****** ADDL. **SUVARNA BHAVAN, MULLAVANA,** A3 **MULLAVANA,KUNDARA,KOLLAM.** **L.SARASAMMA,W/O.SUDHEENDRAN,** **BABU NIVAS, MULLAVANA.P.O.,** ADDL.A4 **KUNDARA, KOLLAM.** **L.SUSHEELA,W/O.A.P.VISWAMBHARAN,** **RESIDING AT PADINARE CHARUVILLA PUTHANVEEDU,** ADDL.A5 **ARAVARAKONAM, EZHUKONE.P.O., KOLLAM.** R.S.A.No.29 of 2006 :-2-: **ADDL.A6** G.THULASI BAI, W/O.M.PASHUPALAN, DILEEP BHAVAN, MUKOODU, MULLAVANA, KUNDARA, KOLLAM *****Legal heirs of deceased first appellant are impleaded as Addl.A3 to A6 as per order dated 18/01/2018 in I.A.No.2479/2008.** BY ADVS. SRI.N.UNNIKRISHNAN SRI.M.K.CHANDRA MOHANDAS ## **RESPONDENTS/PLAINTIFF/APPELLANT IN A.S AND 2ND DEFENDANT:** **1** GOPALAN SUDHAKARAN POVANNAL VEEDU, IVERKALA PADINJATTEKARA,, VADAKKE MURI, KUNNATHUR VILLAGE AND TALUK.[ **died** ] 2 ANIL KUMAR KOCHUTHARAYIL VEEDU THUVAYOOR SOUTH MURI,, KADAMPANAD VILLAGE. ******* ADDLR3 VALSALA KUMARI, W/O.LATE GOPALAN SUDHAKARAN, AGED 65 YEARS, POOVANAL VEEDU,IVERKALA,W/N.KUNNATHOOR, KADAMBANDU SOUTH, KOLLAM -691 553. ADDL.R4. ARUN KUMAR.S., AGED 34 YEARS, S/O.LATE GOPALAN SUDHAKARAN, POOVANAL VEEDU, IVERKALA, W/N.KUNNATHOOR, KADAMBANADU SOUTH, KOLLAM-691 553. ADDL.R5 AKHIL KUMAR.S., AGED 28 YEARS, S/O.LATE GOPALAN SUDHAKARAN, POOVANAL VEEDU, IVERKALA,W/N.KUNNATHOOR, KADAMBANADU SOUTH, KOLLAM691 553. R.S.A.No.29 of 2006 :-3-: ***** ADDL.R3 TO R5 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED FIRST RESPONDENT AS PER ORDER DATED 29/01/2020 AS I.A.NO.1/2020** BY ADVS. SRI.PHILIP M.VARUGHESE SRI.P.SANTHOSH KUMAR TR SRI.M.P.SREEKRISHNAN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 27.03.2021, THE COURT ON 14/06/2021 DELIVERED THE FOLLOWING: R.S.A.No.29 of 2006 :-4-: ## **J U D G M E N T** (Dated this the 14[th] day of June, 2021) The appellant herein was the first defendant in O.S.No.259 of 1998 of the Munsiff's Court, Adoor (hereinafter referred to as 'the trial court') and the first respondent in A.S.No.67 of 2003 of the District Court, Pathanamthitta (hereinafter referred to as 'the first appellate court'). The suit was filed by the plaintiff for specific performance of contract and consequential permanent prohibitory injunction. The suit was dismissed by the trial court by judgment and decree dated 28[th] February, 2003. The plaintiff preferred an appeal before the District Court, Pathanamthitta in which the District Court reversed the judgment and decree of the trial court and decreed the suit by judgment dated 9.9.2005. The parties will be referred to in the rank assigned to them in the suit for the purpose of convenience and clarity. 2. The plaint schedule properties originally belonged to the first defendant as per Sale Deed No.1049/1987. The R.S.A.No.29 of 2006 :-5-: plaintiff, the brother's son of the first defendant was residing with the first defendant. The first defendant was in possession of the plaint schedule properties. 3. The case of the plaintiff was that the property was agreed to be sold for a total consideration of Rs.26,600/-. Towards the said amount, the plaintiff had paid a sum of Rs.20,000/- as advance amount. On the date of agreement itself, the first defendant handed over the title deed to the plaintiff. Since then, the plaintiff was put in possession of the properties and was enjoying the same as the owner in possession of the same. Subsequent to 27[th] May,1997, after the property was put in possession of the plaintiff, the plaintiff had reclaimed the south western portion of the plaint schedule property by 75 loads of earth . According to him, he had cultivated plantain there and the rest of the property is cultivated with paddy. He spent an amount of Rs.30,000/- for the same. According to him, the first defendant is endeavouring to encroach upon the plaint schedule property. The plaintiff had further prayed in the suit to R.S.A.No.29 of 2006 :-6-: set aside the sale deed No.349/1998 executed by the defendant No.1 in favour of defendant No.2 since according to the plaintiff, the same was null and void and did not bind the plaintiff. 4. The first defendant filed a separate written statement contending that the plaintiff had been residing with the first defendant. Since the first defendant declined the plaintiff's demand for the property, the plaintiff had started to pester and harass the first defendant and thereupon, the first defendant shifted his residence to the plaintiff's sister's house in 1997. The first defendant is in possession of the property. He had assigned 5 cents to the second defendant as per Document No.349/1998 of S.R.O., Kadampanad. Since then, the second defendant has been in possession and enjoyment of aforesaid 5 cents. The first defendant retired from the Indian Railways in 1985. Till then, the first defendant was residing along with the plaintiff. For the electrification of the first defendant's building, the plaintiff wanted the first defendant to subscribe his name and signature upon a stamped paper worth Rs.50/-. Making use R.S.A.No.29 of 2006 :-7-: of the aforesaid stamp paper, Ext.A1 agreement was fabricated. There was no agreement for the assignment of the property to the plaintiff. 5. The second defendant filed written statement contending that the first defendant was having 28¾ cents of property comprised in Sy.No.476/21C of Kadampanad Village by virtue of Document No.1049/1987. He has assigned 5 cents to the second defendant as per sale deed No.349/1998 of the SubRegistrar's Office at Kadampanad. The agreement dated 27.5.1997 is a fabricated one. Since then, the second defendant is in exclusive possession of 5 cents of property. 6. Sri.N.Unnikrishnan, the learned counsel for the appellant contended that no agreement for sale was executed in favour of the plaintiff as contended. He contends that an area of 5 cents was transferred to the second defendant in a bona fide manner and the sale deed having been registered, the second defendant was put in possession of the suit property way back in 1998. Nearly 23 years have passed and the second defendant R.S.A.No.29 of 2006 :-8-: has carried out considerable improvement in the property. It is submitted that the property was agreed to be sold for an amount of Rs.26,600/- and the total area was having 28¾ cents in Sy.No.476/21C of Kadampanad Village. 7. Sri.M.P.Sreekrishnan, the learned counsel for the first respondent would seek to maintain the judgment passed by the first appellate court. It is contended that the first appellate court considered the entire aspects in detail. It is his case that the first defendant had entered into an agreement for sale and had received an advance amount of Rs.20,000/-. It is contended that the first defendant in collusion with the second defendant created a document so as to defeat the rights of the plaintiff. The trial court framed the following issues in the suit:- 1. Whether the agreement alleged to have been executed by the 1[st] defendant is properly executed? 2. Whether the advance payment allegedly made is true? 3. Whether the plaintiff has performed his part of contract and was ready and willing to perform the same at the appropriate time?(deleted) 4. Whether the agreement is a fabricated document? 5. Whether the injunction sought for by the 2[nd] defendant is allowable? 6. Whether the plaintiff is entitled the specific performance and the injunction sought for?” R.S.A.No.29 of 2006 :-9-: 8. During the trial, PWs.1 and 2 were examined on the plaintiff's side and marked Exts.A1 to A3. DWs.1 and 2 were examined on defendant side and marked Exts.B1 to B9. By judgment dated 28[th] February,2003, the suit was dismissed. However, in the counter claim filed by the second defendant, the plaintiff was restrained by a permanent prohibitory injunction from trespassing upon the counter claim schedule property, damaging the boundaries thereof, committing any waste therein or interfering with the possession of the second defendant in any manner. 9. Being aggrieved by the judgment and decree, the plaintiff filed an appeal before the first appellate court. By judgment dated 9.9.2005, the appeal was allowed in part setting aside the judgment and decree of the trial court. The suit was decreed in part directing the first defendant to execute and register the sale deed in respect of the plaint schedule property excluding 5 cents covered by Ext.B2, in favour of the plaintiff, R.S.A.No.29 of 2006 :-10-: after receiving the balance sale consideration, if any, failing which the plaintiff is at liberty to get the document executed through the court at the costs of the first defendant. The first defendant was also restrained by a permanent prohibitory injunction from executing any document in respect of the plaint schedule property, excluding the aforesaid 5 cents covered by Ext.B2 in favour of the second defendant or any other person. Aggrieved by the above, the appellant herein/the first defendant filed this R.S.A. 10. The proceedings of this Court would show that learned Single Bench of this Court on 13.01.2006 passed an order stating that none of the questions formulated in the memorandum of R.S.A. is substantial question of law whereupon the learned counsel for the appellant submitted that he would formulate the real substantial questions of law within one week. Accordingly, the learned counsel for the appellant filed I.A.No.304 of 2006, petition for amending this R.S.A. by deleting the four questions of law already framed and substituting the R.S.A.No.29 of 2006 :-11-: ## substantial questions of law 1 to 6 before this Court. The ## aforementioned substituted substantial questions of law are as follows:- - i. Did not Lower Appellate Court err in holding the suit as maintainable when there is no specific pleadings to the readiness and willingness on the part of the plaintiff to perform his part, especially when the suit is for specific performance of the contract? - ii. Did not Lower Appellate Court err in accepting an unregistered agreement as genuine contrary to the findings of Trial Court in the absence of independent evidence when there is serious dispute to the execution of document? - iii. Did not the Lower Appellate Court err in allowing appeal merely by conclusion without support of any independent evidences adduced by the plaintiff as against evidences adduced by the defendants? - iv. Did not Lower Appellate Court fail to note that there was no prayer in the suit to redeliver the property of 2[nd] defendant who is in possession and ownership of five cents of land by sale deed No.349/98 of SRO, Kadampanadu? - v. Did not the Lower Appellate Court err in acting beyond the pleadings? - vi. Whether the impugned judgment and decree are sustainable in the eye of law?” 11. After having heard both sides, this Court allowed the amendment application on 07.02.2006 in the above I.A. by deleting the questions of law 1 to 4 already framed and substituting substantial questions of law 1 to 6 as stated above. R.S.A.No.29 of 2006 :-12-: 12. This Court on 17.3.2006 admitted this R.S.A. and ordered that the substantial questions of law 1 to 6 raised in the memorandum of appeal are the substantial questions of law in this case. 13. During the pendency of the appeal, the appellant herein/the first defendant died. Hence, one R.Leela claiming to be the foster daughter of late Govindan Raghavan, the sole appellant in the R.S.A. filed an application for herself being impleaded as additional second appellant by I.A.No.1759 of 2007, on the strength of registered will produced before this Court. After hearing both sides, this Court allowed the application way back on 4[th] July,2008, permitting the additional second appellant to prosecute the appeal as legal representative of the deceased Govindan Raghavan. Thereafter, I.A.No.2479 of 2008 was filed by one L.Sarada, niece of the appellant and three others seeking permission to implead themselves as the legal heirs of the deceased appellant. By order dated 18.01.2018 in I.A.No.2479/2008, this Court allowed the application, permitting R.S.A.No.29 of 2006 :-13-: the additional appellants 3 to 6 to prosecute the appeal as legal representatives of the deceased Govindan Raghavan. 14. The prime question raised before this Court to which this Court is called upon for consideration is whether the plaintiff was always ready and willing to perform his part under the contract. Reversing the decree, the first appellate court reached the conclusion that willingness and readiness is no doubt pleaded, but the plaintiff let evidence to prove the readiness and willingness to perform his part of contract. 15. It is contended that inference of readiness and willingness could be drawn by the conduct of the plaintiff in paying substantial amount of Rs.20,000/- as advance amount for the total consideration of Rs.26,600/-. It is further contended that the readiness and willingness could be drawn by the conduct of the plaintiff, the circumstances in this case and from the totality of the circumstances involved. The plaintiff is admittedly a close relative of the first defendant. It is clear from the evidence that till 1997, first defendant was residing with the R.S.A.No.29 of 2006 :-14-: plaintiff. Under the circumstances, the learned counsel for the appellants contends that the circumstances will be gathered from the evidence. 16. For this, the appellants contended that the agreement was executed as early as on 27.5.1997. However, the suit was filed before the trial court only on 20.05.1998. Although the plaintiff pleaded that he paid substantial amount of Rs.20,000/- as advance sale consideration, he waited nearly for an year to institute the suit against the defendant. The plaintiff, being the purchaser of the property, was not eager to execute the sale deed within a short span of time instead waited for one year time to institute a suit. The trial court dismissed the suit holding that Ext.A1 agreement was not proved. In appeal, an application was filed under Order VI Rule 17 of the C.P.C. to amend the pleadings as IA 787/2005. In the affidavit in support of the application, the plaintiff has stated in paragraphs 3 and 4 as follows:- R.S.A.No.29 of 2006 :-15-: “3. The counter petitioners 1 and 2 had contended in their written statements that a sale deed was executed by the 1[st] counter petitioner in favour of the 2[nd] counter petitioner a few days prior to the institution of the suit. That document is marked as Ext.B2 in this case. At the time when the suit was instituted, I was not aware of the sale deed and I came to know about the sale deed only from the written statement. Therefore, there is no prayer in the plaint that there should be a direction to the 2[nd] defendant also to execute the sale deed in my favour. I had not got any legal advice that it was necessary to amend the plaint to incorporate such a prayer. Though the sale deed in favour of the 2[nd] counter petitioner is invalid, now that such a sale deed has been brought into existence it is necessary that the 2[nd] counter petitioner also is directed to execute the sale deed in my favour in terms of the agreement of sale. This is however only an inadvertent omission which can be supplied even at the appellate stage. 4. I am therefore making an application to amend the plaint to incorporate that prayer also. It is seen that in the plaint, no statement is now made that I was ready and willing to take the sale deed at any time. Even though such a specific statement is not necessary in view of the detailed allegations, this opportunity can be availed of to supply that omission also. Again, it has not been specifically stated in the plaint by an amendment that the 2[nd] counter petitioner was aware of the agreement of sale when he took the sale deed. This omission can also be supplied by an amendment.” 17. By order dated 9.9.2005, the first appellate court dismissed the application. Later, the suit was decreed in part as R.S.A.No.29 of 2006 :-16-: against the first defendant. However, the property purchased by the second defendant as far as Ext.B2 was excluded and thereby confirming the decree of specific performance in respect of an area excluding the 5 cents, which was sold to second defendant by the first defendant after the execution of Ext.A1 agreement. 18. During the pendency of the appeal, counsel for the first respondent filed a Memo dated 30.10.2018 stating that the first respondent had died on 30.07.2018 and his legal heirs are his wife and children. I.A.No.1 of 2020 was filed by the appellants to implead the legal representatives of the first respondent as additional respondents 3 to 5 in this appeal. By order dated 29.01.2020, this Court allowed the above I.A. and additional respondents 3 to 5 are impleaded as the legal representatives of the first respondent. 19. It is well settled law that the jurisdiction to pass the decree of specific performance is discretionary and the court can consider various circumstances to decide whether such relief is to be granted. Section 20 of the Specific Relief Act,1963 says ## R.S.A.No.29 of 2006 :-17-: that the jurisdiction to decree specific performance is discretionary and the court is not bound to grant specific performance merely because it is lawful to do so. Section 20 also provides that the discretion of the court is not arbitrary, but sound and reasonable guided by judicial principles. Certain circumstances have been mentioned in Section 20(2) of the Specific Relief Act,1963 as to under what circumstances the court shall exercise such discretion. If, under the terms of the contract, the plaintiff gets an unfair advantage over the defendant, the court may not exercise its discretion in favour of the plaintiff. Similarly, the specific reliefs may not be granted if the defendant would be put to undue hardship, which he did not foresee at the time of agreement. The principles were followed by the Apex v. Court reported in **A.C.Arulappan Smt.Ahalya Naik** [AIR 2001 SC 2783] with the following observations. “7. The jurisdiction to decree specific relief is discretionary and the Court can consider various circumstances to decide whether such relief is to be granted. Merely because it is lawful to grant specific relief, the Court need not grant the order for specific relief; but this discretion shall not be exercised in an arbitrary or unreasonable manner. Certain circumstances have been R.S.A.No.29 of 2006 :-18-: mentioned in Section 20(2) of the Specific Relief Act, 1963 as to under what circumstances the Court shall exercise such discretion. If under the terms of the contract the plaintiff gets an unfair advantage over the defendant, the Court may not exercise its discretion in favour of the plaintiff. So also, specific relief may not be granted if the defendant would be put to undue hardship which he did not foresee at the time of agreement. If it is inequitable to grant specific relief, then also the Court would desist from granting a decree to the plaintiff. xxxxxxxxxx xxxxxxxxxxxx 15. Granting of specific performance is an equitable relief, though the same is now governed by the statutory provisions of the Specific Relief Act, 1963. These equitable principles are nicely incorporated in Section 20 of the Act. While granting a decree for specific performance, these salutary guidelines shall be in the forefront of the mind of the Court. The trial Court, which had the added advantage of recording the evidence and seeing the demeanour of the witnesses considered the relevant facts and reached a conclusion. The appellate court should not have reversed that decision disregarding these facts and, in our view, the appellate court seriously flawed in its decision. Therefore, we hold that the respondent is not entitled to a decree of specific performance of the contract. “ A Bench of three Judges of the Apex Court considered the above ## legal position in **Nirmala Anand** v. **Advent Corporation Private** ## **Ltd. And Others** [ (2002) 8 SCC 146] and held as follows:- “6. It is true that grant of decree of specific performance lies in the discretion of the court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Whether the R.S.A.No.29 of 2006 :-19-: purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the consideration besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the considerations to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing the specific performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen.” The above legal principles have been followed in **Jayakantham and others** v. **Abaykumar** [(2017) 5 SCC 178]. 20. In the case at hand, the first defendant denied execution of agreement as pleaded by the plaintiff. However, he has admitted the signing of stamp papers. In fact, the plaintiff was residing along with the first defendant initially. The evidence of DW1 would indicate that he left the plaintiff in 1997, finding it difficult to reside with him and started residence with R.S.A.No.29 of 2006 **==> picture [34 x 11] intentionally omitted <==** the plaintiff's sister. According to him, subsequently, he assigned 5 cents comprised in the plaint schedule to the second defendant. Ext.A1 agreement inter alia provides that possession was handed over to the plaintiff on the date of agreement by the first defendant, in part performance of the contract. It is the case of the plaintiff that he expended Rs.30,000/- to reclaim the land thereafter and he has been in possession of the same. The fact that he reclaimed the land expending money from his pocket, has been stoutly denied by the first defendant. In fact, no evidence was adduced by the plaintiff to prove, by taking out a commission that he had made substantial improvement in the plaint schedule property as contended by him. There is no evidence to prove the same except the evidence let in by PW1 before the trial court. However, the evidence let in by PW1 was denied by the first defendant, who was 80 years old then. Secondly, on the date of institution of the suit, the plaintiff was aware of the fact that the first defendant executed Ext.B2 sale deed in favour of the second defendant for an area of 5 cents of R.S.A.No.29 of 2006 :-21-: property covered under Ext.A1 agreement. However, necessary pleadings to that effect were totally absent in the suit filed before the trial court. The second defendant has sought for an injunction raising a counter claim in respect of 5 cents of property. DW2 the Power of Attorney Holder of second defendant produced Ext.B2 title deed and adduced evidence to show that the second defendant has been in possession of the suit property within well defined boundary. When there is a well-defined boundary as pleaded by the second defendant separating 5 cents from the rest of the plaint schedule property as per Ext.B2, the burden is heavily on the part of the plaintiff to prove that no boundary had been in existence on the date of suit as alleged by him. No evidence in this regard was adduced by the plaintiff. The second defendant purchased 5 cents of property from the first defendant and he was in possession of the same property from the date of Ext.B2. Still, the plaintiff failed to make clear assertion regarding his readiness and willingness in the plaint as well as the alleged execution of sale deed in respect of R.S.A.No.29 of 2006 :-22-: second defendant to defeat Ext.B2 sale deed. It has come out from the oral evidence of DW2 that the second defendant purchased the property without any knowledge regarding the execution of Ext.A1 agreement between the plaintiff and the first defendant. It has further come out in evidence that the second defendant purchased an area of 5 cents of property and he has been in possession of the same by virtue of Exts.B2 to B9. At any rate, he is a bona fide purchaser and the sale deed executed in favour of the second defendant by the first defendant cannot be treated as a collusive action between the first and second defendant to defeat the interest of the plaintiff. 21. It is the fact that the first defendant retired from Indian Railways and he was having properties. During his life time, he executed a registered will whereunder the scheduled property, which is the subject matter of the second appeal, was bequeathed to the additional appellant though another item of property, which is not the subject matter of the suit was bequeathed to one Vijayamma, who is stated to be the younger R.S.A.No.29 of 2006 :-23-: daughter of deceased Govindan Raghavan. Admittedly, late Govindan Raghavan died unmarried and issueless. The circumstances would indicate that his relatives are clamouring for his property. 22. On a consideration of the entire facts and circumstances, this Court is of the view that the conduct of the **.** parties are not fair in this case The first defendant was at the fag end of his life. He died unmarried and issueless. During his life time, he depended the plaintiff for some time. They stayed together. It has come out in evidence that the first defendant did not intend to give anything to the plaintiff out of love and affection. He deliberately did not give anything to the plaintiff in the will executed by him. The unamended Specific Relief Act,1963 (i.e. before Act 18 of 2018) mandates that it is obligatory on the part of the plaintiff to plead and prove his readiness to perform his part of contract, which is totally absent in this case. In the absence of such pleading, the suit for specific performance cannot be granted. R.S.A.No.29 of 2006 :-24-: 23. Strong reliance in this regard was placed on **Syed** v. **Dastagir T.R.Gopalakrishna Setty** [(1999)6 SCC 337]. Although the time was not of the essence of the contract, it was obligatory on the part of the plaintiff to file a suit within a reasonable time. In the case on hand, even after paying Rs.20,000/- as advance sale consideration, the suit was not filed within time. In **K.S.Vidyanadam and others** v. **Vairavan** [(1997)3 SCC 1], the Supreme Court reiterated the position that it was obligatory on the part of the plaintiff to file a suit within a reasonable time though time was not of the essence of the contract. The fact that the agreement was entered into on 27.05.1997, is not disputed. Apart from the readiness expressed by the plaintiff when he was examined before court, the plaintiff has not placed any material on record to show that at any point of time, i.e., within a reasonable time, from the date of execution of the agreement, he ever asked the first defendant to execute a deed of sale in his favour or tendered the balance amount of consideration to him. Forms 47 and 48 of Appendix A of Code of R.S.A.No.29 of 2006 :-25-: Civil Procedure prescribes the manner in which the said averments are required to be made by the plaintiff. No doubt, the plaintiff has not made any averment to that effect. It is further brought out in evidence that during the pendency of the appeal, the plaintiff filed an application to amend the plaint seeking to incorporate the plea of readiness and willingness. However, the application was dismissed. Later, the suit was decreed on merit reversing the judgment and decree of the trial court. From the facts and circumstances, this Court has no hesitation to hold that the pleading as made by the plaintiff does not show his readiness and willingness to perform his part of the obligation under the contract. The plea of readiness and willingness as required under Section 16(c) of the Specific Relief Act is not established. Hence, there is no doubt that the First Appellate Court committed an error by reversing the decree of the trial court on the basis of a wrong interpretation of Section 16(c) of the Specific Relief Act. It is also not just and proper to remand the case to the trial court for the above purpose after 24 R.S.A.No.29 of 2006 **==> picture [34 x 11] intentionally omitted <==** years from the date of agreement. 24. Considering the facts and circumstances involved, the material, which has been placed on record, indicates that the terms of the contract, the conduct of the parties at the time of entering into the agreement and circumstances under which the contract was entered into gave the plaintiff an unfair advantage over the defendants. The circumstances make it inequitable to enforce specific performance of contract. However, the law does not encourage unlawful enrichment at the expense of the other. For the above reason, a decree for return of the advance amount would meet the ends of justice. Evidently, an amount of Rs.20,000/- was paid by the plaintiff to the first defendant as early as on 27.5.1997 of the total agreed consideration of Rs.26,600/-. In view of the above, the ends of justice would be met by directing the appellants herein (the legal heirs of the first defendant) to pay respondents 3 to 5 (the legal heirs of the plaintiff) an amount of Rs.20,000/- with 9% interest from the date of suit till the date of decree and thereafter, at the rate of 6% R.S.A.No.29 of 2006 :-27-: from the legal heirs of the first defendant and all their assets in lieu of specific performance of contract. 25. Accordingly, the decree for specific performance shall stand set aside and shall stand substituted with a direction to the appellants herein, the legal heirs of the first defendant to pay the respondents 3 to 5 herein, the legal heirs of the plaintiff, a sum of Rs.20,000/- (Rupees Twenty Thousand only) with 9% interest from the date of suit till the date of decree and thereafter, at the rate of 6% from the legal heirs of the first defendant and all their assets in lieu of specific performance. The amount shall be paid within two months from the date of receipt of a copy of this judgment. The appeal stands allowed in part as stated hereinabove. Pending interlocutory applications shall stand closed. There shall be no order as to costs. Sd/- **N.ANIL KUMAR** , JUDGE MBS/