In the present case also, the plaint allegations are practically identical. Again, averring in the plaint that "he has performed his part of the contract", the plaintiff has only shown that he has kept the amount ready, undoubtedly for being paid as a consideration of the proposed sale. In that view of the matter, it will have to be held that not pleading the exact words as contemplated in Form 47 is not a defect fatal to the suit and if the plaintiff has substantially complied with that requirement of section 16(c) of the Specific Relief Act, and if from other averments of the plaint, readiness and willingness of the plaintiff is spelt out, the specific performance can be granted.
Print Page
Bombay High Court
Damodhar Son Of Vishwanath ... vs Vijay Son Of Murari Meshram on 22 September, 1995
Equivalent citations: 1996 (3) BomCR 68, (1995) 97 BOMLR 383
1. In this second appeal, the original defendant Nos. 1 and 2 respectively challenge the concurrent judgements granting a decree of specific performance in favour of the original plaintiff-respondent. Both the courts below have concurrently held that on the basis of an agreement of sale dated 22-12-1983 of a house for a total consideration of Rs. 22,000/-, the plaintiff was entitled to have specific performance of that agreement. The courts below have also held that the defendant No. 2, who was a subsequent purchaser, was also liable to join the defendant No. 1 in the specific performance by a sale in favour of the original plaintiff, on the basis of that agreement.
2. Shortly stated the plaintiff's case is that he agreed to purchase the house of defendant No. 1 for a total consideration of Rs. 20,000/- by way of an agreement which was executed by defendant No. 1 for that purpose on 22-12-1983. Rs. 5000/- were paid as the earnest money and the registered sale-deed was to be executed within six months. It is claimed that thereafter the plaintiff had approached the defendant No. 1 for a sale-deed, showing his willingness to pay Rs. 15,000/-. However, the defendant No. 1 did not pay heed to it. The plaintiff also pleaded that in pursuance of the agreement, he had attended the office of the Sub-Registrar for getting the sale-deed executed, but the defendant No. 1 failed to appear. He, therefore, issued a legal notice immediately thereafter, but to no effect. He, therefore, also got a legal notice published in a local Daily on 16-7-1984 and also issued a telegraphic notice, but again there was no response from the defendant No. 1 and, hence on these allegations, he filed the suit for specific performance.
3. Initially, the defendant No. 2 was not made a party but during the pendency of the suit, firstly, the defendant No. 2 was joined as a party as it is claimed that the plaintiff had come to know about a sale having been made in his favour of the suit house by the defendant No. 1 on 11-5-1984 itself. Though the defendant No. 2, on the basis of the subsequent sale to him was joined as a party in the month of February, 1985, an amendment was made to the plaint only on 1-8-1988 bringing to the Court's notice the subsequent sale dated 11-5-1984 by defendant No. 1 in favour of defendant No. 2 as also claiming the relief against defendant No. 2 also.
4. The defence of the defendants was very haphazard. The defendant No. 1 claimed that the agreement in question dated 22-12-1983 (Exhibit 57) was a bogus document. He, therefore, denied the execution thereof. He denied the transaction as a whole and disclosed that he had already sold the plot and the house in question to the defendant. No. 2 on 11-5-1984 for Rs. 35,000 by executing a registered sale-deed in his favour. He claimed that he had put his signature Exhibit 57 as a witness and that was a blank paper. In short, the defendant No. 1 denied the transaction at all.
5. The defence of defendant No. 2 was also no better. He pointed out that when he inquired about the title from the plaintiff, he was told that the plaintiff had no interest in purchasing the suit house. He also claimed the agreement to be a forged document.
6. The parties went to the trial on the basis of these pleadings. On the basis of the oral and documentary evidence lead before it by the parties, the trial Court came to the conclusion that the factum of the agreement dated 22-12-1983 was proved. It also held that on the basis of that agreement since the plaintiff had been and was willing to perform his part of the contract, he was entitled to the specific performance of the contract as prayed by him. The contention of the defendant No. 1 that his signature was obtained by fraud, representing to be a loan transaction, was negatived. It was also held that the defendant No. 2 was not a purchaser of the suit property for value without notice. In that view of the matter, the suit was decreed by the trial Court in full.
7. An appeal came to be filed at the instance of both the defendants. However, the Appellate Court has confirmed these findings. In this second appeal, the defendants now challenge these concurrent judgements passed by the courts below.
8. Shri Daga, learned Counsel appearing on behalf of the appellants-original defendants, firstly, submits that the defendant No. 2 was joined during the pendency of the suit. However, a relief of declaration was claimed against the defendant No. 2 only by way of an amendment on 18-7-1988. According to him, therefore, the said amendment could not have been allowed and no relief could have been granted against the defendant No. 2 of declaration, as has been done by the trial Court. According to him, this amendment should have been disallowed, as it was barred by time. The second limb of Shri Daga's argument is that there are no essential pleadings as regards the application of section 19(1)(b) of the Specific Relief Act in the plaint. According to Shri Daga, since it has not been pleaded by the plaintiff that his agreement was prior in time to the agreement, if any, between the defendant No. 1 and defendant No. 2, there could be no relief granted against the defendants generally and particularly against defendant No. 2. The third point argued by Shri Daga is that the plaint was completely silent in respect of the readiness and willingness on the part of the plaintiff to perform his part of the contract. Shri Daga strenuously contends in this behalf that the plaint is not in keeping with Form 47 of First Schedule of the Code of Civil Procedure and the essential pleadings, that the plaintiff always was and still is ready and willing to perform his part of the contract, are wanting in the plaint, as also there is no evidence in support of the same. In that view of the matter, Shri Daga contends that the specific performance cannot be granted against the defendants. In support of his contention, he further says that since the essential pleadings are absent, even the evidence cannot be read in that behalf, and in that view of the matter, according to him, both the courts below have erred in deciding that issue in favour of the plaintiff and granting specific performance of the contract in favour of the plaintiff.
9. I shall first consider the first point argued by Shri Daga. It is to be seen that initially when the suit was filed, the defendant No. 2 was not a party thereto. The relief was essentially claimed only against the defendant No. 1 There was no reference also made to the subsequent sale by the defendant No. 1 in favour of the defendant No. 2. In the plaint, for the first time, the defendant No. 2 came to be joined as a party on 22-2-1985. In his application under Order 1, Rule 10 of the Code of Civil Procedure, the plaintiff has pointed out that since as per the defendant No. 1, the property is sold in favour of defendant No. 2, the defendant No. 2 was liable to be joined as a party. It is, however, to be remembered that even thereafter the defendant No. 2 did not file the written statement. The said written-statement came to be filed on 21-11-1985. It seems that the application for further amendment came to be made by the plaintiff thereafter on 21-4-1988 and the said amendment came to be allowed on 18-7-1988. Shri Daga contends that by this amendment, for the first time, the plaintiff pleaded the necessary facts as regards the sale between the defendant No. 1 and the defendant No. 2 of the suit house and contended that the said transaction between them dated 11-5-1984 was not binding on the plaintiff and was liable to be declared as null and void. By the same amendment application, even the prayer was amended and a new prayer at para (c)(1) was inserted to the following effect:
"To declare the registered sale-deed executed on 11-5-1984 by defendant No. 1 in favour of defendant No. 2 is null and void and the direction may be given to hand over the possession to the plaintiff."
The mainstay of Shri Daga's argument is that the trial Court has erred in allowing this amendment as the said amendment was clearly time barred. He relies on Article 58 of the Limitation Act and contends that under Article 58, the limitation was for three years from the date when the right to sue first accrues. He contends that the defendant No. 1 had already shown in his written-statement, which was filed on 15-10-1984 that the property was already sold on 11-5-1984 to the defendant No. 2. According to him, therefore, the plaintiff had come to know of the sale of the suit property and on that day, at least, it would be presumed that the right to sue to defendant No. 2 accrued to the plaintiff. His contention is that the amendment made in the year 1988 is clearly beyond the period of three years from that date and, therefore, this amendment should not have been allowed at all.
10. In support of his argument, Shri Daga relies on the reported ruling, United India Insurance Co. Ltd. v. Murugan alias Krishan, wherein it is held that the cause of action of a suit for declaration that acquisition of the suit property was null and void, would arise on the date the plaintiff got the knowledge of such acquisition. He also points out that in Canara Bank v. Canara Sales Corporation, , the Apex Court has held that such "knowledge" includes constructive knowledge also so that when the plaintiff came to know from the written statement of defendant No. 1 of the sale between the defendant No. 1 and the defendant No. 2, the right to sue must be taken to have accrued to him on that date, i.e., 15-10-1984. He further relies on reported ruling in Gorakpur Electric Supply Co. Ltd. v. R.E. Nariman, A.I.R. (35)1948 Allahabad 75 to suggest that the cause of action accrued when there is in existence a person who can sue and another who can be sued and when all material facts entitling the plaintiff to succeed have happened. According to him, the plaintiff acquired the necessary knowledge about the details of the sale, including name of defendant No. 2, on 15-10-1984 and as such he was bound to ask for the relief of declaration against defendant No. 1 within 3 years of that date.
11. In the first place, the correctness or otherwise of the impugned order of amendment had not been questioned before the first Appellate Court. The grounds of appeal before the first Appellate Court are completely silent. As if that is not sufficient, that ground is not raised before this Court also. This second appeal has also not been admitted on that question. However, Shri Daga contends that even if he had not raised that ground, he was entitled to raise the same as it was regarding the limitation and, therefore, went directly to the root of the matter. In the first place, it is difficult to accept the contention of Shri Daga that he can raise this ground in this second appeal, particularly when he has not taken the said ground before the first Appellate Court as also before this Court.
12. However, it must again be observed that the contention regarding the limitation is also incorrect. In the first place, Shri Daga is not right in his submission that the right to sue the defendant No. 2 accrued to the plaintiff, for the first time, when the defendant No. 1 disclosed the fact of the sale of the property in his written statement. It has to be remembered that the defendant No. 1 was an adversary to the plaintiff. It could not be said, therefore, that the plaintiff could rely blindly on the contentions raised by the defendant No. 1 as regards the sale of the property in favour of the defendant No. 2 and on that basis proceed against defendant No. 2 also. After all, the plaintiff had no authentic information or knowledge that there was a sale-deed effected by the defendant No. 1 in favour of defendant No. 2. Again this was a disclosure by defendant No. 1 and could not as such provide a basis for accrual of a right to sue against defendant No. 2. Undoubtedly on that basis, the plaintiff did join the defendant No. 2 as a party. However, when defendant No. 2 has asserted the fact of this sale-deed on 21-11-1985 when he filed his written statement and pointed out that he had purchased the property, the amendment was made on 21-4-1988 within three years. There can be no dispute with the law laid down in the reported decisions mentioned supra, but the factual basis in each of those decisions is different.
13. This is apart from the fact that the amendment to the prayer clause for claiming declaration against the defendant No. 2 was itself wholly unnecessary, simply because of the reason that the plaintiff was claiming a specific performance only against defendant No. 1. If he was able to establish his case of the specific performance against the defendant No. 1, it would be enough if the defendant No. 2 is a party, because the only decree to be passed in the suit for specific performance against a subsequent transferee would be to ask him to join with the defendant No. 1. In that sense, it was not necessary at all for the plaintiff to ask any such declaration as he did. It would have been enough for the plaintiff to have joined defendant No. 2 only as a party and to contend that the subsequent sale-deed was not binding on him. The argument of Shri Daga that the declaration asked against the defendant No. 2 was barred by time and no such amendment could have been permitted by the trial Court, has, therefore, to be rejected. This position is no more res integra and is obtained in Vimala Ammal v. C. Suseela, ; Dwarika Prasad v. Harikant Prasad, Durga Prasad v. Deep Chand, . In all these cases, it is held that when an action is brought for specific performance, the subsequent transferee would be a necessary party to the suit, as the only decree that is to be passed in such a suit is for specific performance against the original vendor and the subsequent transferee is only directed to join in the sale which is directed by a specific performance. It has been held further that the proper form of decree is to direct specific performance of the contract between the vendor and the prior transferee and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him, to the prior transferee. He does not join in any special covenants made between the prior transferee and his vendor, all he does is to pass on his title to the prior transferee. This law laid down by the Supreme Court firstly in Durgaprasad's case (cited supra) would dispense with the necessity of obtaining any specific declaration against the subsequent transferee. It would not, therefore, be necessary at all to claim a declaration as such. This law is then reiterated in Dwarika Prasad's case, ultimately in Vimala Ammal's case, . Since the prayer for declaration brought in by amendment was itself not necessary, the argument that such amendment was belated and could not be allowed must fail.
14. Shri Daga then reiterated that considering the opening words of section 19(1)(b) of the Specific Relief Act, and the language of Clause (b), it was essential for the plaintiff to claim a specific performance against the defendant No. 2 also. He contends that it is for this reason that the claim of declaration had become necessary to be prayed to the effect that the transaction between the defendant No. 1 and the defendant No. 2 was void and not binding against the plaintiff. It must be remembered that Clause (b) of sub-section (1) of section 19 starts---
"19(1) Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against---
(b) any other person claiming under him by a title-----."
The section speaks of the "enforcement" only. It does not speak in terms of a decree being claimed against such person. I have already pointed out that it is an established law that for enforcing the decree, all that is necessary is to implead such person as a party and directing him to join in the conveyance with the original vendor in favour of the vendee. It will have, therefore, to be held that there is no question of the suit being barred by limitation as against the defendant No. 2. The first submission of Shri Daga, therefore, must fail.
15. This brings me to the second submission that there are no essential pleadings as regards the application of section 19(1)(b) of the Specific Relief Act. Now, according to Shri Daga, it was incumbent upon the plaintiff to plead at least after it was disclosed to him that the suit property was demised in favour of the defendant No. 2, that his agreement was prior in time to the agreement (not the sale-deed), if any, between the defendant No. 1 and the defendant No. 2. He contends from the language of section 19(1)(b) of the Specific Relief Act that if the plaintiff has to enforce a specific performance against the defendant No. 2 also, then it is essential for him to plead that the title of the defendant No. 2 had arisen subsequently to the contract between the plaintiff and the defendant No. 1. Shri Daga contends that by words "title arising" the section requires that where such specific performance is to be enforced against a subsequent transferee, then it is not sufficient merely to show that the sale-deed is after the agreement in between the original plaintiff and the defendant No. 1, but it will also have to be shown that there was no prior agreement in between the defendant No. 1 and the defendant No. 2. The argument is obviously incorrect and has to be mentioned only to be rejected. After all, the burden of proof to claim an exemption under section 19(1)(b) lies upon the subsequent transferee and it is the subsequent transferee who has to plead the essential fact that he is not a person whose title has arisen subsequently to the contract in question. If we see the written-statement of the defendant No. 2 such contentions are conspicuously absent. The defendant No. 1 has also merely suggested in his written-statement that he had sold the property on 11-5-1984, without mentioning any prior agreement between him and the defendant No. 2. Under such circumstances, it would be travesty to expect the plaintiff to come out with a negative plea that there was no agreement prior to the contract in question in between the defendant No. 1 and defendant No. 2. Such cannot be the situation. It is also to be remembered in this behalf that there is no ground raised in this behalf either before the Lower Appellate Court or this Court. The second argument of Shri Daga, therefore, also fails.
16. The last argument of Shri Daga is that both the courts below have erred in holding that the plaintiff was always ready and willing to perform his part of the contract and continued to be so till after the filing of the suit. To buttress his argument, Shri Daga contends that there are no specific pleadings in keeping with Form 47 to the First Schedule of the Code of Civil Procedure. According to Shri Daga, the language of section 16(c) of the Specific Relief Act is of mandatory nature and, therefore, if the plaintiff fails to aver in his plaint that he has performed and has also been ready and willing to perform essential terms of the contract which has to be performed by him, the suit must essentially fail. According to Shri Daga, this position is well established in law and he has cited catena of case law to support the proposition; more particularly he relies on Premraj v. The D.L.F. Housing and Construction (Pvt) Ltd., ; Ouseph Varghese v. Josepth Aley, and Narendra Bahadur Singh v. Baijnath Singh, .
17. Shri Sambre, appearing on behalf of the respondent, however, avers that though not in exact terms, there is a pleading that the plaintiff always was and has been ready and willing to perform his part of the contract. According to him, though there is a form prescribed in respect of pleading for specific performance, i.e. Form No. 47, yet if it is shown that in substance the pleadings are present and further if it is shown by the attendant circumstances that the plaintiff had always been ready and willing to perform his part of the contract, then the defect would not be of a fatal nature to the suit. In short, Shri Sambre contends that the requirement of section 16(c) of the Specific Relief Act and also Form 47 is not strictly mandatory in that sense, and the substantial compliance with these provisions could be enough. Shri Sambre has also further shown that as a matter of fact this question has not been raised before the First Appellate Court and as such he is taken by surprise.
18. On examining the memo of appeal before the Lower Appellate Court and the present second appeal, it appears that the question has not been raised in this specific form before both the courts. However, considering the importance of the question, it would be first considered whether there is, in fact, a pleading in the present plaint regarding the readiness and the willingness of the plaintiff to perform his part of the contract and further what is the requirement of law as regards such pleading.
19. In order to see whether the plaintiff was and had been ready and willing to perform his part of the contract, it cannot be ignored that both the courts below, as a matter of fact, have found that the plaintiff had-been ready and willing to perform his part of the contract all through. The plaintiff himself entered the witness-box and had pointed out that as per the original agreement, the sale-deed was to be executed after about six months. He had pointed out further that he had parted with the consideration and was always prepared to pay rent of the consideration of Rs. 15,000/-. It was established position, as was found by both the courts below, that the plaintiff thereafter had required the defendant No. 1 to execute the sale-deed by attending the office of the Sub-Registrar, Nagpur, and had for that purpose attended the office of the Sub-Registrar, Nagpur, himself, and finding that the defendant No. 1 had not turned up to the Office of the Sub-Registrar, had thereafter given him a notice. The notice given by the plaintiff is very clear and the said notice would show the readiness on the part of the plaintiff to perform his part of the contract, i.e., to make the payment of Rs. 15,000/-. The plaintiff had also issued a general notice in the newspaper signifying his readiness all through.
20. Now, here some dates are also important, it will be seen that after giving the notice to the defendant No. 1, the suit has been filed almost within one-and-a-half months. The plaintiff has not chosen to wait and thereby to lead the defendant to believe that the plaintiff was shying away from his responsibilities or liabilities. It is also significant to note that the plaintiff had not only attended the Office of the Sub-Registrar, Nagpur but had shown that the amount of Rs. 15,000/- was ready with him. Both the courts below have undoubtedly come to the conclusion that the plaintiff had proved his readiness and willingness for the performance of his part of the contract. That undoubtedly is a finding of fact. However, the question is whether such a finding of fact could have been given in the absence of the specific contention having been raised to that effect in the plaint. If we examine the plaint closely, it is undoubtedly true that the specific clause in Form 47 of the Civil Procedure Code is not present. However, let us see as to whether the said contention is at least given notice of by the plaintiff to the defendant No. 1.
21. Shri Daga, appearing for the appellant, contends relying on Prem Raj v. The D.L.F. Housing and Construction (Private) Ltd., , that in the absence of a pleading within the meaning of section 60(c) of the Specific Relief Act, the suit must fail. At any rate, the specific performance cannot be granted. Shri Daga has also relied on a further case of the Apex Court in Ouseph Varghese v. Joseph, , wherein the Apex Court has taken the same view and has also commented upon the necessity of a plea being there in the plaint in keeping with Form 47 in a suit for specific performance. Shri Daga invited my attention to the fact that the observations in Prem Raj's case (cited supra) have not only been approved but followed by the Apex Court in this matter. In para-9 of this case, the Apex Court observes:
"The plaintiff did not plead either in the plaint or at any subsequent stage that he was ready and willing to perform the agreement pleaded in the written-statement of defendant. A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the 1st Schedule in the Civil Procedure Code. In a suit for specific performance it is incumbent on the plaintiff not only to set out agreement on the basis of which he sues in all its details, he must go further and plead that he has applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so. He must further plead that he has been and is still ready and willing to specifically perform his part of the agreement. Neither in the plaint not at any subsequent stage of the suit the plaintiff has taken those pleas. As observed by this Court inPt. Prem Rai v. The D.L.F. Housing and Construction (Private) (Ltd.) and another, that it is well settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract and in the absence of such an allegation the suit is not maintainable."
Shri Daga relies on these observations very heavily. He further points out from a case reported inAbdul Khader Rowther v. P.K. Sara Bai, and invites the attention of the Court to the following observations in para-11:
"It is thus clear that this is a case where the plaintiff seeks specific performance of a contract stated to be evidenced by an allegedly sham document which did not come into effect. His plaint does not contain the requisite pleadings necessary to obtain a decree for specific performance. This equitable remedy recognised by the Specific Relief Act cannot be had on the basis of such pleadings and evidence.":
The Apex Court, in para-12 of this decision, has thereafter quoted the observations made in Ouseph Varghese's case (cited supra) and has relied upon the same.
22. In short, the contention of Shri Daga is that the law laid down in these three Supreme Court cases would unmistakably require the plaintiff to specifically plead in the plaint that he was already ready and willing to perform his part of the contract. It will have, therefore, to be examined whether these three cases, in the first place, apply to the present controversy.
23. Now, taking the third case (i.e. Abdul Khader Rowther's case) first, the plaintiff's case was that the suit properties had been mortgaged by the plaintiff in favour of the defendant as per Exhibit B-1. His further case was that though it was stated in the said mortgage-deed that the properties had been mortgaged for a sum of Rs. 22,000/-, no such amount was, in fact, received by the plaintiff. Subsequently, the properties were assigned by the plaintiff in favour of the first defendant under Exhibit A1. The sale consideration, which was stated was Rs. 35,000/-. However, even here the sale-consideration was not received. According to the plaintiff, therefore, these transactions were sham and intended only to protect the suit properties from the creditors who were pressing the plaintiff for various amounts due from him. The defendants, however, pleaded that these transactions were not sham and bogus and, in fact, by the second agreement, i.e., Exhibit A-1, the defendants had accepted the assignment of the property on payment of adequate consideration of Rs. 35,000/-. The defendants, in addition to that, pleaded that the plaintiff was entitled to repurchase the property within the stipulated period on payment of the aforesaid sale consideration of Rs. 35,000/-. The trial Court held this to be a suit for specific performance of contract, as evidenced by Exhibit A-1, and the plaintiff was held entitled to recover the possession of the suit properties on payment by him of the said consideration of Rs. 35,000/-. It was in the light of these circumstances, that it was held that though the defendants had pleaded specifically that the plaintiff was entitled to repurchase the property on payment of Rs. 35,000/-, the plaintiff had not amended his plaint so as to include the contention raised in that behalf in terms of Form No. 47. It will have to be borne in mind that in Abdul Khader Rowther's case, the original agreement pleaded by the plaintiff was quite different from the one of which the specific performance was sought. In fact, it was his case that the original agreements were that of mortgage and assignment but without any consideration, and these transactions were sham and bogus. In short, in that case, the plaintiff had not set up independently an agreement of specific performance as against the defendant and in that view of the matter, the facts are different.
24. Similar is the case in respect of Ouseph Varghese's case . Here also there was a suit filed for specific performance, on the basis of an oral agreement alleged to have been entered into on 9-9-1921 between the plaintiff and the first defendant. However, the first defendant expired soon after the filing of the suit and the suit was contested by the second defendant, his widow. According to the plaintiff, at the time of execution of the agreement, there was an oral agreement between him and the first defendant, whereunder the first defendant had agreed to reconvey the properties sold for the very price it was sold to him, whenever the plaintiff called upon him to reconvey them. The first defendant had not filed the written-statement and before his death he had gifted away the suit property by means of the registered deed in favour of the defendant No. 2. Though in her written-statement defendant No. 2 denied the agreement pleaded in the plaint, she, however, admitted that just before his death, her husband had agreed to sell to the plaintiff only Item No. 1 of the suit property less one acre of paddy field for a sum of Rs. 11,500/-, but due to the illness of her husband, the sale in question could not be effected. She also pleaded the willingness on her part to give only such property by way of sale as was admitted by her in her pleadings. Even after this written-statement, the plaintiff, in that case, did not amend his plaint. It was in the light of these facts that it was held that the plaintiff, in fact had not at any stage accepted the agreement pleaded by the defendants as true. He was, in fact, contesting that agreement all the while and, therefore, it could not be said that he was, in fact, ready and willing all through to perform his part of the contract, because that very agreement was contested by him. In short, even in Ouseph Varghese's case, the Supreme Court found, as a matter of fact, that the plaintiff had not proved his readiness and willingness before filing of the suit or that he continued to be ready and willing to perform his part of the contract at the time of filing of the suit.
25. Unfortunately for the appellant, the situation in respect of the third case, viz., Prem Raj's case, , is also no different. Here also, the plaintiff had alleged in the suit that the deeds executed on June 11, 1958 were unlawful and void and inoperative against him as they were executed as a result of undue influence and coercion exercised upon him. In the alternative, however, he had pleaded and prayed for a decree of specific performance of that very agreement.
26. In short, in all the three cases relied upon by Shri Daga, the agreements, of which the specific performance was sought by the plaintiffs were attacked by the plaintiffs and were not relied upon and in that back-drop, the Supreme Court in each case gave a finding that the plaintiff had not proved that he was all through ready and willing to perform his part of the contract and continued to be so even at the time of filing of the suit and thereafter. Such is certainly not the situation here.
27. Here, the agreement is dated 22-12-1983. In this agreement, it is agreed that the total consideration of the sale would be Rs. 20,000/-, out of which Rs. 5000/- have been admittedly paid on the date of the agreement. The agreement was to be executed within six months, or on the day as was convenient to the purchaser, i.e., the plaintiff and as such the formalities were to be completed before 22nd June, 1984. It was agreed that the plaintiff was to contact the defendant before that date. In keeping with this, the defendant No. 1 was given a notice by the plaintiff on 18-5-1984 itself, i.e., even one month prior to the lapse of six months which was the time agreed to in the agreement. By this notice, the defendant No. 1 was directed to remain present on 22-6-1984 in the office of the Sub Registrar, Nagpur. Accordingly, there is an evidence on record that the plaintiff did attend the office of the Sub Registrar, Nagpur, on 22-6-1984, and finding that the defendant had defaulted to come, he immediately gave a notice on 16-6-1984 which was a public notice duly published in Daily Lokmat. It is claimed that there was also a telegram sent on 18-6-1984 and there is no serious dispute about it. On this back-drop, it was held by the courts below that right till the last notice was given and even upto 22-6-1984, the plaintiff had shown his keenness to abide by the agreement and had shown his readiness to perform his part of the contract by intimating the defendant No. 1 that he was ready with the consideration of Rs. 15,000/-. In para-8 of his plaint, this is what the plaintiff has pleaded:
"That, in spite of the repeated requests and the legal notice and telegraphic intimation given by the plaintiff to the defendant to complete the contract, i.e., to execute the sale deed, for the suit property made in favour of the plaintiff, the defendant has failed to perform his part of the contract."
The further sentence is very important:
"While the plaintiff has performed his part of the contract, this suit for specific performance of the contract entered into by the defendant on 22-12-1983 has been filed before this Honourable Court."
Now, here what has been shown by the plaintiff in the plaint is that he had issued a legal notice signifying his readiness and willingness and it is also further reiterated that though the defendant had failed to perform his part of the contract, the plaintiff has performed his part of the contract. Grammatically though the sentence was incorrect, it does signify the meaning that the plaintiff was still ready to perform his part of the contract. It will have to be remembered here that all that was required to be done by the plaintiff was to keep Rs. 15,000/- ready and to pay them in order to obtain the sale-deed from the defendant No. 1. The availability of this amount was already signified by him by the legal notice which he had sent to the defendant No. 1 and regarding the receipt of which by the defendant No. 1, there is no contest. Further, he has also stated that the defendant had failed to attend the office of the Sub-Registrar, Nagpur, as per that legal notice and, thus, had defaulted to execute a sale-deed in his favour. It is, thereafter that a clause follows signifying that the "plaintiff has performed his part of the contract." What the plaintiff meant thereby was that Rs. 15,000/- was ready with him and he was willing to take the sale-deed after parting with that amount. In the light of the attendant circumstances and in the light of the evidence led by the plaintiff, we will have to give a liberal construction to this pleading in para-8 of the plaint and it will have to be held that this is not a case where the essential plea as contemplated by section 16(c) of the Specific Relief Act and Form 47 of the First Schedule of the Code of Civil Procedure, are absent.
28. Shri Sambre, learned Counsel for the respondent, has relied upon the two Single Bench decisions of the Allahabad High Court, viz., (1) Dhian Singh v. Tara Chand, and (2) Anwarul Haq v. Nizam Uddin, . Both these are Single Bench decisions given by Shri B. D. Agarwal, J. The learned Single Judge has observed in the following words:
"The issue covering the averments as well as proof as to readiness and willingness by plaintiff to perform his part of contract of sale has to be adjudged in the broad perspective as pointed out by Supreme Court in Ramesh Chandra v. Chuni Lal, . The substantive provision contained in section 16(c) does not insist upon a particular set of words to be used, the averment must in substance indicate the continuous readiness and willingness on the part of the person suing. The Form prescribed under Order 6, Rule 3 is procedural, something designed to facilitate justice and further it and, not a penal enactment. The Court in suitable cases should look into the totality of circumstances and the allegations made in the plaint and from them come to a conclusion whether necessary allegations have been made by the plaintiff in that regard. No particular language or phraseology need be employed by the plaintiff. A literal compliance to the language appearing in Forms 47 and 48 of the Appendix A is not imperative."
The learned Single Judge of the Allahabad High Court has taken a resume right from the first leading case on this point which is Ardeshir H. Mama v. Flora Sarsoon, A.I.R. 1928 P.C. 208, as also the reported decisions of Prem Raj's case as also Ousepth Varghese's case (both cited supra).
29. The learned Single Judge of the Allahabad High Court has also relied upon the reported decision in Ramesh Chandra Chandiok v. Chuni Lal, and more particularly on the following observations therein:
"Readiness and willingness cannot be treated as a strait-jacket formula. These have to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned."
Relying on these observations, the learned Judge proceeded to hold that the Court in suitable cases should look into the totality of circumstances and the allegations made in the plaint and from them come to a conclusion whether necessary allegations have been made by the plaintiff in that regard. No particular language or phraseology need be employed by the plaintiff. A literal compliance to the language appearing in Forms 47 and 48 of the Appendix A is not imperative nor is this the requirement of law.
30. The law laid down by the learned Single Judge of the Allahabad High Court in the above two judgments was approved by the Division Bench of the Gujarat High Court in Rajya Tulsibhai Patel v. Benar Enterprise, . The Division Bench of the Gujarat High Court has taken note of Prem Raj's case (cited supra) and has held that Prem Raj's case has not laid down a hard and fast rule that failure on the part of the plaintiff to reproduce in the plaint the exact words of the statute would be fatal. The Court further holds that all that is required is that the facts pleaded in the plaint and other averments made therein disclosed substantial compliance with the requirements of law. Justice A.M. Ahmadi (as His Lordship then was) has reiterated in paragraph 6 in the following words:
"To insist on a mechanical reproduction of the exact words would be to insist on form rather than substance. If on an analysis of the facts averred in the plaint the Court finds that even though the exact words of the statute are not reproduced, the facts reveal that the plaintiff has performed all the essential terms and conditions of the contract up to the date of the institution of the suit and has shown his willingness to perform the remaining terms of the contract, the requirement of law, would stand satisfied."
In this, His Lordship has followed the law laid down by the Supreme Court in Ramesh Chandra Chandiok's case, and has also reiterated the law laid down by the Allahabad High Court in (both cited supra). The Gujarat High Court, on facts, also had found that the plaint averment had shown that the plaintiff had entered into a contract for the purchase of one shed and had paid some amount by way of earnest; that the plaintiff had averred that he was willing to pay the balance of Rs. 6000/- on the execution of the sale-deed and was also willing to raise a loan of Rs. 35,000/- and pay the said amount to the defendant towards the sale price as initially agreed.
31. In the present case also, the plaint allegations are practically identical. Again, averring in the plaint that "he has performed his part of the contract", the plaintiff has only shown that he has kept the amount ready, undoubtedly for being paid as a consideration of the proposed sale. In that view of the matter, it will have to be held that not pleading the exact words as contemplated in Form 47 is not a defect fatal to the suit and if the plaintiff has substantially complied with that requirement of section 16(c) of the Specific Relief Act, and if from other averments of the plaint, readiness and willingness of the plaintiff is spelt out, the specific performance can be granted.
32. In the present case, there is one more circumstance which shows the readiness and willingness on the part of the plaintiff and that is filing the civil suit almost immediately within one-and-a-half months after the service of the legal notice. In fact, serving the legal notice is also one of the circumstances to show the readiness and willingness on the part of the plaintiff and filing of the civil suit almost immediately after that, would only further give an impetus to the theory that he was ready and willing to perform his part of the contract.
33. The case of Ramesh Chandra Chandiok, has also found favour with the Kerala High Court in a reported judgment in Chandrasekhara Prabhu v. Kunhi Moideen, 1994(1) Current Civil Cases 894. The Kerala High Court has followed that ruling to hold that even a substantial compliance can entitle the plaintiff to have the specific performance.
34. Shri Sambre, thereafter, invited my attention to a decision of Supreme Court in Smt. Kaulashwari Devi v. Nawal Kishore, . This was also a case where there was no specific pleading and on that basis the concurrent finding of the two courts below regarding the readiness and willingness on the part of the plaintiff was set aside by the High Court. While agreeing that the High Court on facts was not correct in setting aside that finding, the Supreme Court has also further observed:
"No such contention was ever urged by the respondent-second defendant before the first Appellate Court. The said contention appears to have been urged for the first time at the hearing of the second appeal."
The Supreme Court further held:
"Regarding the absence of averment in the plaint that the plaintiff was ready and willing to perform his part of the contract, we must say we are not satisfied with the reasoning of the High Court, apart from the fact that the said finding is a halting one. It is evident from the pleadings and the facts of the case that the plaintiff was anxious at all points of time and was ready and willing to perform his part of the contract."
The situation is no different here. The plaintiff, as I have already pointed out, was at all points of time ready and willing to perform his part of the contract. Even after the decree, it is reported, that the plaintiff has deposited the remaining consideration. I do not find fault with the finding of the trial as well as the appellate courts in that behalf. This is apart from the fact that the plaintiff has not averred this ground before the first appellate Court and has also not included in the memo of grounds of appeal before this Court.
35. In the result, it must be said that the judgments of the trial and first Appellate Courts were the correct judgment in law as well as on facts. The present Second Appeal must, therefore, fail and is, therefore, dismissed with costs.
No comments:
Post a Comment