Nandlal Sah v. Pawan Devi — 1979 DIGILAW 114 (PAT)

Judgment Hari Lal Agrawal, J. 1. -this is a plaintiffs second appeal who instituted a suit for specific performance of a contract for sale on the basis of a Mahadanama (agreement) dated 24.5.1967 (Ext.2) in respect of a shop portion of a building situated in the town of Sitamarhi, fully described in Schedule II of the plaint admittedly the plaintiff is in occupation of the said premises as a tenant. The building bears Municipal khasra no.2080 and is described in Schedule I of the plaint. 2. According to the plaintiffs case, the defendant agreed to sell the suit premises for a consideration of Rs.7,000/-. Out of that Rs.4,000/- was paid by the plaintiff at the time of the agreement as earnest money and the remaining rs.3,000/- was to be paid at the time of the execution of the sale-deed which was to be executed on 25.4.1970, The plaintiffs further case is that although the defendant asked him to purchase the requisite stamps for the purpose of execution of the sale-deed, when the stipulated date approached the defendant went on putting off the matter and, therefore, he instituted the title suit in question. The plaintiff alleged in the plaint that he "has been and is ready to perform his part of the contract by paying the remaining sum of Rs.3,000/- to the defendant the moment the defendant executes the sale-deed and admits its registration". 3. In essence, the relevant defence set up by the defendant in her written statement was that there was no negotiation for sale of Schedule II property and that the Mahadanama in question was a forged and fabricated document under which no consideration passed. Her purpoted thumb-impression and signatures of the attesting witnesses were all forged and fabricated by the plaintiff. Accordingly there could be no occasion for the defendant asking the plaintiff to purchase any stamp duty or putting off the execution of the sale-deed. 4. Both the courts below, on appreciation of the evidence that was produced by the parties, have held that the Mahadanama was a genuine document. Accordingly there could be no occasion for the defendant asking the plaintiff to purchase any stamp duty or putting off the execution of the sale-deed. 4. Both the courts below, on appreciation of the evidence that was produced by the parties, have held that the Mahadanama was a genuine document. The trial court had decreed the suit, but on appeal the lower appellate court, however, dismissed it on the ground that the suit being a suit for specific performance of the contract, was not properly constituted inasmuch as it did not contain the necessary averments on the part of the plaintiff to the effect that he was continuously ready and willing to perform his part of the contract, namely, to pay the sale price, between the date of the contract and the hearing of the suit. 5. The necessary averments in this respect which were made in paragraph 9 of the plaint read as follows : ". . . the plaintiff has ever been ready to perform his part of the contract. . . . any moment she executes the long-awaited kebala and admits registration of the same. " The court of appeal below while dismissing the suit has held that this was not a clear cut averment by the plaintiff that he was also ready to perform his contract in present as well as in future inasmuch as the expression "has ever been ready" was a "past participle and it does not signify the present or the future. " reliance has been put on the case of Ouseph Varghese V/s. Joseph Aley and others, (1969) 2 SCC 539 ). I will discuss this case a little later. 6. The plaintiff-appellant who also examined himself in support of his case had stated that he was even then ready to pay the balance of the contract money, but the court of appeal below did not find the said statement sufficient in the absence of necessary pleadings in the plaint to that effect which, according to it was a failure to comply with the requirements prescribed in Forms 47 and 48 aforesaid, which was mandatory for a suit for specific performance. 7. Relevant provisions of section 16 of the Specific Relief Act may be quoted : "16. Personal ban to relief.-Specific performance of a contract cannot be enforced in favour of a person,- (a ). . . . . . 7. Relevant provisions of section 16 of the Specific Relief Act may be quoted : "16. Personal ban 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. " according to Forms 47 and 48 of Schedule I of Appendix A to the Civil procedure Code, the plaintiff must allege that "he has been and is still ready and willing specifically to perform the agreement on his part. " 8. The Supreme Court in the case of Prem Raj V/s. The D. L. F. Housing and Construction Pvt. Ltd. , ( AIR 1968 SC 1355 ) at page 1357 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. " Then again in Vargheses case (supra), relied upon by the court of appeal below, the Supreme Court following the above case of Prem Ra/ (supra) observed : "a suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the Ist 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. . . ". The ratio of the above cases has been followed by various High Courts. He must further plead that he has been and is still ready and willing to specifically perform his part of the agreement. . . ". The ratio of the above cases has been followed by various High Courts. Suffice it may to give only, a reference of the decisions in the cases of Idris Ali V/s. Abdul samad Barbhuva, (AIR 1973 Gauhati 13 ), Prabhakaran V/s. Bhavani and others, (AIR 1974 Kerala 153) and Durjyodhan Palel and others V/s. Padana Charan Das and others, (AIR 1978 Orissa 5 ). 9 It was further contended on behalf of the respondent that even the averment made by the plaintiff to the effect that the plaintiff has been ready to perform his part of the contract did not indicate his willingness to perform his part as he intended to perform his part of the contract only when the sale-deed was executed and its execution was admitted at the time of registration of the same. It was accordingly contended that the plaintiff was not willing to perform his part of the contract until and unless the defendant performed her own part by duly executing and registering the deed. This contention also has got some force. However, Mr. K. D. Chatterji, appearing for the appellant leaned heavily on the deposition of the plaintiff to the effect that he was ready to perform his part of the contract, and contended that the omission or defect, if any, in the plaint should not stand in the way of the plaintiff to get a decree for specific performance of the contract. It is not possible to accept this contention as the lacuna in the plaint cannot be overcome by the interested testimony of the plaintiff since the mandatory fact should have been pleaded in the plaint as well and proved as held by a large number of decisions. 10. On the materials on the record, therefore, in agreement with the court of appeal below, I must hold that the plaintiff has failed to show his willingness to perform his part of the contract for which he is disqualified to claim for the specific performance of the agreement for sale. The appeal accordingly fails and is hereby dismissed, but in the circumstances I shall leave the parties to bear their own costs. 11. The appeal accordingly fails and is hereby dismissed, but in the circumstances I shall leave the parties to bear their own costs. 11. While parting I would like to observe that an attempt was made to enable the parties to arrive at some settlement, but it failed and, therefore, the appeal has been disposed of on merits as above. Appeal dismissed.