Idris Ali v. Abdul Samad Barbhuva — 1972 DIGILAW 36 (GAU)

Judgement PATHAK, J. :- This appeal is from the decree passed by the Assistant District Judge, Silchar. 2. The plaintiff filed the suit for specific performance of contract for reconveyance in respect of the suit land measuring 1B 4K 4 Chataks. as described in the schedule. The plaintiffs case is that on 23-2-60 he sold the suit land to the defendant at Rs. 200 with a korar from the defendant to re-convey the land within 3 years on payment of the same consideration. As the Plaintiff could not pay the consideration within the stipulated period, he got the time extended by two years more by an endorsement made by the defendant on the reverse of the korar on 16-2-63. Before expiry of the extended period also he could not make payment of the consideration and therefore he got the time further extended for another year by a verbal agreement in presence of the village elders. On 2-3-66 he tendered the consideration but the Defendant refused to reconvey the land. On 15th February, 1966 the Plaintiff filed the suit. 3. The Defendant admits execution of the "Korarnama" and the first extension of the period for 2 years. He however denies verbal extension of time for a further period of one year. He also states that he has made further improvement on the land. 4. On the pleadings of the parties the following issues were framed :- 1. Is there any cause of action for the suit? 2. Is the suit barred by waiver, estoppel and acquiescence ? 3. Whether the defendant agreed to resell the land within 16-2-1966? 4. To what relief if any is the plaintiff entitled ? 5. Both the parties adduced evidence and produced some documents including Ext I which is the Ekrarnama. 6. The learned trial Court disbelieved the story of further extension of time till 16-2-66 and refused to accept the oral evidence in this regard. Accordingly he dismissed the suit. On appeal the learned Assistant District Judge held that under the provisions of Section 92 of the Evidence Act oral evidence to modify the written agreement was admissible and as such the learned trial Court erred in law in refusing to rely on the oral evidence regarding the extension of time for the second time. Accordingly he dismissed the suit. On appeal the learned Assistant District Judge held that under the provisions of Section 92 of the Evidence Act oral evidence to modify the written agreement was admissible and as such the learned trial Court erred in law in refusing to rely on the oral evidence regarding the extension of time for the second time. On consideration of the oral evidence the learned Assistant District Judge found that time was really extended and he therefore decreed the Plaintiffs suit reversing the judgment and decree of the learned trial Court. Hence this appeal. 7. Mr. B. K. Das. the learned counsel appearing for the appellant has raised three points in this case :- (i) that the learned Assistant District Judge erred in law in receiving oral evidence to show modification of the contract under Ext. I and his interpretation of Section 92 of the Evidence Act was erroneous. (ii) that the learned Assistant District Judge erred in law in making out a new case for the Plaintiff beyond the pleading, (iii) that in the plaint or at any subsequent stage of the proceeding the Plaintiff never averred that he was ready and willing to perform his part of the contract and as such the Plaintiff was not entitled to judgment. 8. We have heard the learned counsel Mr. M.A. Laskar, appearing on behalf of the Respondent at length. 9. The first point that arises for consideration is whether oral evidence to modify the contract put into writing in Ext. I is admissible in evidence. In other words whether oral evidence regarding modification of the terms of the contract as laid down in Ext. I is admissible in evidence. 10. In the instant case the Plaintiff has stated that there was an agreement for reconveyance of the land in question within 3 years from 23-2-66 on payment of the consideration. He admittedly failed to pay the consideration within 3 years but before the expiry of that period he got the stipulated period extended by two years more by an endorsement made by the defendant on the reverse of Ext. I on 16-2-1963. The Plaintiff admitted that he could not pay the amount within the extended period of two years. But he stated that in presence of village elders the period was further extended by the Defendant orally for one year. I on 16-2-1963. The Plaintiff admitted that he could not pay the amount within the extended period of two years. But he stated that in presence of village elders the period was further extended by the Defendant orally for one year. The Plaintiff has brought the suit for specific performance of the contract on the basis of Ext. I, the terms of which according to him were subsequently orally modified. 11. Relevant portions of S. 91 of the Indian Evidence Act are as follows :- "91. When the terms of a contract or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document no evidence shall be given in proof of the terms of such contract grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained." 12. Considering the provisions of Section 91 of the Indian Evidence Act, it is quite clear that oral evidence to show modification of the terms of the contract, which has been reduced to writing is not entertainable in a case. 13. The learned Assistant District Judge relied on Section 92 and held that oral evidence was admissible in the instant case to show modification or innovation of the contract laid down in Ext. I. In support of the finding of the learned Assistant District Judge Mr. Laskar referred to proviso 4 of Section 92 of the Indian Evidence Act which reads as follows :- "92. When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest for the purpose of contradicting, varying, adding to or subtracting from its terms, Proviso (1) * * * * Proviso (4). - The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property may be proved except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents." 14. On reading of the judgment of the learned Assistant District Judge and also after hearing the submissions of the learned counsel for the Respondent in this regard, it appears that the learned Assistant District Judge relied on proviso (4) to Section 92 for receiving oral evidence on the view that there was a distinct subsequent oral agreement to rescind or modify the contract under Ext. I. 15. Proviso (4) to Section 92, however lays down that oral evidence is not admissible to prove the existence of any definite subsequent oral agreement to rescind or modify any contract which has been registered according to the law in force for the time being as to the registration of documents. 16. Though an agreement for sale or reconveyance is not required by law to be registered, yet in the instant case the agreement was in writing and also had been registered in accordance with law as to the registration of documents. Ext. I is admittedly a duly registered document. In this connection we may quote the following observations from Sarkars Law of Evidence. l2th Edition, at Page 820 :- "(3) The rule applies to all registered instruments, whether or not registration is compulsory under the law. Expression "or has been registered" refers to the fact of registration and not to the requirement of law. So, when a writing embodying a contract grant, etc. has been registered (although registration is not compulsory), parole evidence of any subsequent agreement modifying or rescinding the registered instrument is not admissible. It must be modified, altered or waived by another registered instrument. "The word "or" in this proviso is not to be read as "and". So the contention that oral evidence is admissible when the document though registered as a matter of fact is not required by law to be registered was negatived (Nokoor v. Asutosh. (1905) 9 CWN 214n)." 17. It must be modified, altered or waived by another registered instrument. "The word "or" in this proviso is not to be read as "and". So the contention that oral evidence is admissible when the document though registered as a matter of fact is not required by law to be registered was negatived (Nokoor v. Asutosh. (1905) 9 CWN 214n)." 17. In this connection reference may also be made to Dinkerrai Lalit Kumar v. Sukhdayal Rambilas, AIR 1947 Bom 293, wherein Chagla J. delivering the judgment of the Court observed as follows :- "(3) The terms of the contract have been reduced to writing; and we may point out with respect to the learned Judge below that he has fallen into error in admitting parole evidence with regard to negotiations antecedent to the contract and also with regard to the subsequent conduct of the parties. Once the parties reduce the terms of their contract into writing, the court can only look at the writing alone in order to construe what the terms of the contract were. It is hardly necessary to say that what the terms of the contract between the parties were cannot be ascertained by allowing parole evidence as to what transpired antecedent to the contract or what the parties did subsequent to the contract". 18. In the instant case the payment was to be made within 3 years from 23-2-60 and then the period was extended by 2 years by the Defendant by endorsement on the reverse of the document itself. So in any view of the matter the payment ought to have been made or the Plaintiff should have been willing to fulfil his part of the contract on or before 23-2-65. Admittedly, the Plaintiff could not and did not offer the consideration within that period. He has come with a story that there was an oral agreement for extending the period by one more year i. e. till 23-2-1966 but the oral evidence regarding the variation of the term of the contract in this regard is not admissible in evidence either under Section 91 or Section 92 of the Indian Evidence Act. That being the position the learned Assistant District Judge committed an error in law in receiving the oral evidence and holding that the Plaintiff offered the money within time, which was orally extended by the Defendant. 19. That being the position the learned Assistant District Judge committed an error in law in receiving the oral evidence and holding that the Plaintiff offered the money within time, which was orally extended by the Defendant. 19. The next important point is whether the Plaintiff in a suit for specific performance is entitled to judgment without complying with Section 16 (c), Explanation (ii) of the Specific Relief Act, 1963 read with the prescribed Forms No. 47 and No. 48 of the Appendix A Schedule I of the Civil Procedure Code. 20. Relevant provisions of Sec. 16 of the Specific Relief Act may be quoted :- "16. Personal bars to relief. - Specific Performance of a contract cannot be enforced in favour of a person- (a) * * * (b) * * * (c) Who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him other than terms the performance of which has been prevented or waived by the defendant. (i) * * * (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction." 21. In the instant case neither in the plaint nor in his deposition, the plaintiff stated that he was ready and willing to perform his part of the contract according to the terms of the Ext I or even according to the alleged new terms in modification of the terms under Ext. I. 22. Mr. Laskar, the learned counsel appearing for the respondent submits that even though it has not been specifically stated either in the plaint or in the deposition of the Plaintiff that he was ready and willing to perform his part of his contract we should give reasonable interpretation of the language of the Plaint and use some amount of common sense in its interpretation. In this connection he referred to the decision in Narayan Nagorao v. Amrit Haribhau, AIR 1957 Bom 241 . 23. But in the face of the unambiguous language of Section 16 of the Specific Relief Act, 1963. In this connection he referred to the decision in Narayan Nagorao v. Amrit Haribhau, AIR 1957 Bom 241 . 23. But in the face of the unambiguous language of Section 16 of the Specific Relief Act, 1963. as quoted herein-above and in view of the law laid down by the Supreme Court in this regard there is no scope for resorting to any common sense in the interpretation of the plaint as strenuously submitted by the learned counsel for the Respondent. 24. In Prem Rai v. The D.L.F. Housing and Construction Pvt Ltd., AIR 1968 SC 1355 at p. 1357. the Supreme Court has observed as follows :- "In the present case there is absence of an averment on the part of the Plaintiff in the plaint that he was ready to perform his part of the contract. In the absence of such an averment it must be held that the Plaintiff has no cause of action so far as the relief for specific performance is concerned." In Ouseph Varghese v. Joseph Alev (1969) 2 SCC 539 at p. 543 the Supreme Court has observed as follows :- "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 nor at any subsequent stage of the suit the plaintiff has taken those pleas. As observed by this Court in AIR 1968 SC 1355 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." 25. As observed earlier admittedly there is no specific statement made in the plaint or in the deposition of the Plaintiff that he was ready and willing to perform his part of the contract. As observed earlier admittedly there is no specific statement made in the plaint or in the deposition of the Plaintiff that he was ready and willing to perform his part of the contract. In the circumstances in view of the provisions of Section 16 of the Specific Relief Act, 1963 and the law laid down by the Supreme Court in this regard the Plaintiff is not entitled to any decree for specific performance. 26. In the result the judgment and decree of the learned Assistant District Judge are set aside and the judgment and decree of the learned trial Court are restored. 27. The appeal stands dismissed. however make no order as to costs. 28. BAHARUL ISLAM, J. :- I agree. Appeal dismissed.