Mani Amma v. Kololichalil Choyi — 1985 DIGILAW 14 (KER)

JUDGMENT Varghese Kalliath, J. 1. The appellate court dismissed the suit reversing the judgment of the Trial Court. The plaintiffs appeal. These are the facts. 2. The plaintiffs filed a suit for specific performance of a contract for the sale of the plaint schedule property. The contract was between the plaintiffs and the defendant. Plaintiffs say that the defendant agreed to sell all his rights in the plaint property for a consideration of Rs. 1,500/- to the plaintiffs on or before 15-11-1973. The plaintiffs paid an amount of Rs. 1,000/-. Though the defendant agreed to execute a sale deed on receipt of the balance consideration of Rs. 500/ he declined to receive the balance consideration and execute the sale deed. Plaintiffs issued a notice demanding the defendant to perform his obligation under the contract. 3. The defendant contends that the contract alleged is not true and genuine. He contends that he never agreed to sell the plaint schedule property. 4. The averments in the plaint would show that the plaintiffs went to the registry office to show their readiness and willingness to purchase the property. They got a sale deed prepared. That document is produced in the case marked as Ext. A2. Ext. A2. is a sale deed prepared on stamp papers purchased on 22-11-1973. In the habendum of this document, it is clearly recited that it is a sale deed between the plaintiffs and defendant in respect of plaint property. Of course, it was not registered since the defendant did not agree to receive the balance consideration and execute the document. 5. The Trial Court after an evaluation of the evidence held that the agreement between the parties pleaded by the plaintiffs is genuine and that the plaintiffs were prepared to purchase the property and that the defendant committed breach of the contract. Holding that the plaintiffs have established the necessary requirement for obtaining a decree for specific performance, the court decreed the suit directing the defendant to execute an assignment deed, assigning all his rights in the suit property to plaintiffs 1 and 2 within four weeks on receipt of Rs. 500/- 6. The defeated defendant filed an appeal before the Subordinate Judge, Badagara. The only point taken on behalf of the defendant before the appellate court, to use the phraseology of Lord Denning was "a pleading point". 500/- 6. The defeated defendant filed an appeal before the Subordinate Judge, Badagara. The only point taken on behalf of the defendant before the appellate court, to use the phraseology of Lord Denning was "a pleading point". The counsel told the court that there is fatalistic absence of mandatory averments required under S.16(c) of the Specific Relief Act. He said that the plaintiffs have to be non suited. The learned Judge begins with this exordium:- "The appellant in the course of the argument did not press very much regarding the finding of the lower court on the genuineness and correctness of the agreement and the finding arrived at by the lower court on the basis of the oral evidence argued in this case. But the advocate for the appellant mainly argued on a legal point to the effect that lower court should not have ordered specific performance in the absence of a specific averment to the effect that the plaintiffs are willing and ready to perform the contract." The learned Judge considered only the question of lack of necessary averments in the pleadings. The court held that the necessary averments under S.16(c) of the Specific Relief Act are wanting and since averments satisfying the requirements of S.16(c) are mandatory in a suit for specific performance, he dismissed the suit. Now there is an appeal to this court. 7. One of the substantial questions of law merited admission of this second appeal reads thus:- "Is the lower appellate court right in saying that S.16(c) of the Specific Relief Act stands in the way of the plaintiffs, in spite of the fact that there were the necessary averments and statements in the plaint, in the evidence of PW 1 and in Ext. A3 notice as contemplated by S.16(c)." Section 16(c) of the Specific Relief Act: - "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." No doubt, the requirements under this section are imperative. S.16(c) has two distinct parts dealing with two distinct matters of importance. S.16(c) has two distinct parts dealing with two distinct matters of importance. One regarding pleading and the other in regard to proof -- Both are mandatory in character-specific performance of a contract cannot be enforced by a court, if the plaintiff fails to aver that since the date of the contract, he was continuously ready an willing to perform the essential term of the contract which are to be performed by him other than the terms, the performance of which has been prevented or waived by the defendant If this averment is controverted by the defendant, plaintiff has to prove it at the trial. The mandatory nature of the provision makes it obligatory that not only it should be averred in the plaint, but also should be stated and proved in court during trial. 8. The counsel on both sides cited several decisions before me. The counsel for the appellants referred me to AIR 1957 AP 307 , AIR 1974 Ker. 153 , AIR 1977 Gouhati 65 and AIR 1984 All. 4 . Counsel for the respondent cited the following decisions. AIR 1970 Ori. 161 . AIR 1976, All. 95, AIR 1977 All. 36 , AIR 1978 Kar. 98 and AIR 1980 All. 52 . 9. To my mind, without the aid of any precedent it is clear from a reading of the section that in a suit for specific performance, it is a mandatory requirement that the plaintiff should aver that he has performed or has always been ready and willing to perform the essential terms of the contract which have to be performed by him other than the terms, the performance of which has been prevented or waived by the defendant. This has been made very clear in the decision reported in Ouseph Varghese v. Joseph Aley ( 1969 (2) SCC 539 ) This decision refers to the decision reported in Prem Rai v. D. L. F. Housing and Construction (Pvt.) Ltd. ( AIR 1968 SC 1355 ). In this decision, the Supreme Court observed as follows: "A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the First Schedule in the Civil Procedure Code. In this decision, the Supreme Court observed as follows: "A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the First 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." In view of this decision it is not necessary for me to refer to the decisions cited by the counsel for the respondent. Anyhow, I shall briefly refer to those decisions since the counsel for the respondent submits that these decisions will throw clear light on certain finer aspects of the matter and the nuance made by Judges on the question of requirement under S.16(c) of the Specific Relief Act. 10. In Mali Bewa v. Dhanda Samal ( AIR 1970 Ori. 161 ) the court held that it is for the plaintiffs to establish that he was, since the date of the contract, continuously ready and willing to perform his part of the contract and in case that fact is controverted by the defendant to prove it at the trial, If he fails to do so, his claim for specific performance must fail. It is mandatory that not only it should be averred in the plaint, but also should be stated in court during trial, otherwise readiness until the end of the trial cannot be indicated at the time of filing of the suit. This aspect of the matter has been very succinctly pointed out in the decision of the Judicial Committee reported in Ardeshir v. Flora Sussaon ( AIR 1928 PC 208 ). I quote: "In a suit for specific performance, on the other hand, be treated and was required by the Court to treat the contract as still subsisting. This aspect of the matter has been very succinctly pointed out in the decision of the Judicial Committee reported in Ardeshir v. Flora Sussaon ( AIR 1928 PC 208 ). I quote: "In a suit for specific performance, on the other hand, be treated and was required by the Court to treat the contract as still subsisting. He had in that suit to allege and if the fact was traversed he was q required to prove a continuous readiness and willingness from the date of the contract to the time of the hearing to perform the contract on his part. Failure to make good that averment brought with it the inevitable dismissal of his suit." In Sankatha Prasad v. Abdul Asiz Khan AIR 1976 All. 95 , the court held that if there is lack of an averment to the effect that the plaintiff has all along been 'ready and willing to perform his part of the contract, the plaintiff is not entitled to any decree for specific performance notwithstanding the fact that no breach of contract was committed by the plaintiff and that it was the defendant who tried to evade execution of the sale deed by hook or by crook. 11. In Manohar lal v. Rajeshwari Devi (AIR 1977 Allahabad 37), Trivedi J. held relying on (1969) 2 SCC 539 that a suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the First 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." 12. Har Pratap Singh v. Satya Narain Misra ( AIR 1980 All. 52 ) in fact is a case relating to re-conveyance. The same principle we have seen in the decision cited earlier is stated in this decision also. 13. Neither in the plaint nor at any subsequent stage of the suit the plaintiff has taken those pleas." 12. Har Pratap Singh v. Satya Narain Misra ( AIR 1980 All. 52 ) in fact is a case relating to re-conveyance. The same principle we have seen in the decision cited earlier is stated in this decision also. 13. In Kamdev Nath Choudhary v. Devendra Kumar Nath (AIR 1979 Gouhati 65) the court held that the forms in appendices of the Civil Procedure Code are merely guidelines assisting the litigant and the court. 14. I think a strict compliance of the rules in CPC. is not demanded in all cases. Substantial compliance with the rule alone can be insisted. I have to remember that procedural law is always intended to facilitate the course of substantive justice. It should not obstruct the course of real justice. The issue is limited to the point whether the plaintiffs have averred in the plaint that they were/are ready and willing to do their part. The counsel for the respondent relied on forms 47/48 in Appendix A to the CPC. These forms have to be understood with the provisions in R.3 of O.6 CPC. which says that the forms in Appendix A when applicable, as nearly as may be, shall be used for all pleadings. A liberality of construction is explicit from the language used as nearly as may be provided the substance remains fulfilled. The substantive provision incorporated in S.16(c) of the Specific Relief Act does not prescribe or insist a particular set of words to be employed to satisfy the requirements under S.16(c) of the Specific Relief Act. It is not necessary for me to emphasise that O.6 R.3 CPC. is purely procedural. It is a rule of pleading and its object is to facilitate the cause of justice and it cannot be used for throwing out a good claim on a mere technicality. I would also say borrowing the words of Vivian Bose, J. in Kadar Lal Seal v. Hari Lal Seal ( AIR 1952 SC 47 ) that I would be slow to throw out a claim on a mere technicality of pleading when the substance of the controversy and the statutory requirements are revealed from the averments in the plaint and no prejudice is caused to the opposite side, however, clumsily or inartistically the plaint may be worded. Lord Campbell in Cort v. Ambergate etc. Railway Co. (1851) 117 ER 1225 (1236) observed as follows: - "In common sense the meaning of such an averment of readiness and willingness must be that the non completion of the contract was not the fault of the plaintiffs, and that they were disposed and able to complete if it had not been renounced by the defendant." 15. The counsel took me to the averments in the plaint. He has referred me to Para.5 of the plaint, in particular. In Para.5 to the plaint it is stated: The averments in a plaint should be read as an indivisible whole to understand the correct meaning and scope of the averments. The object of pleadings, Lord Halsbury, delivering the opinion of the Privy Council in Sayad Mohammed v. Fateh Mohammed, observed: - "Whatever system of pleading may exist, the sole object of it is that each side may be fully alive to the question that are to be argued in older that they may have an opportunity of bringing forward such evidence as may be appropriate to the issue." 16. The pleadings should not be dissected and accepted in part and rejected in the remainder, but they must be taken as a whole. I should remember that courts do not exist to adhibit discipline of the litigants, but for deciding controversies. In India, pleadings are not construed with the same severity and strictness as in England. Courts have held uniformally that pleadings should not be construed in a pedantic manner. O.6 R.2 CPC. ordains only that pleading shall contain, and contain only a statement in concise from of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not for the evidence by which they are to be proved. Supreme Court has often said that pleadings have to be interpreted not with formalistic rigour but with softness, with the full awareness of the low legal literacy of the poor litigants. 17. Even without the help of any other statements in the plaint, to me there is no difficulty for holding that the averments quoted in Malayalam is quite sufficient to satisfy the requirements under S.16(c) of the Specific Relief Act as explained by the Supreme Court in 1969 (2) SCC 539 . 17. Even without the help of any other statements in the plaint, to me there is no difficulty for holding that the averments quoted in Malayalam is quite sufficient to satisfy the requirements under S.16(c) of the Specific Relief Act as explained by the Supreme Court in 1969 (2) SCC 539 . It has to be remembered that he plaintiffs issued notice before instituting the suit which is evidenced in this case as Ext. A3. In the notice, the plaintiffs have stated that they are ready and willing to perform their part of the agreement and that the defendant was evading to perform his part of the contract. At the end, in the notice, the plaintiffs have told the defendant thus: - XXXXXXXXXXXXXXXXXXXXXXXXXXXX Though a notice may not take the place of he averments required under S.16(c) of the Specific Relief Act, there is nothing wrong in understanding the scope of the averments and evidence in this case as to the readiness and willingness on the part of the plaintiffs to perform their obligations under the contract with what is stated in the notice. I have no doubt that the averments in the plaint itself is sufficient to satisfy the requirements under S.16(c) of the Specific Relief Act. Since there are clear averments in the plaint, the contention raised by the defendant that the plaintiffs have to be non suited for not having made proper plea in the plaint in conformity with the requirements under S.16(c) and in substantial compliance of Form No. 48 and Appendix A of the Code of Civil Procedure has absolutely no merit. 18. The counsel for the respondent submitted that the plaintiffs have to discharge the burden of proof to the effect that they were ready and willing to perform their part of the contract till the end of the trial. Certainly he is perfectly correct in his submissions in view of the observations of the Privy Council quoted by me in the judgment. But that requirement is conditioned on the defendant traversing the averment of the readiness and willingness pleaded by the plaintiffs in their plaint. In this case, the defendant has not controverted the statement in Para.5 of the plaint. But that requirement is conditioned on the defendant traversing the averment of the readiness and willingness pleaded by the plaintiffs in their plaint. In this case, the defendant has not controverted the statement in Para.5 of the plaint. Of course in the light of the contentions raised by the defendant, namely a total denial of the agreement, there is no occasion for the defendant to controvert specifically the averments of the plaintiffs. The 'pleading point raised is a technical contention, which could have been pleaded by the defendant without least affecting the efficacy of the main contention of the defendant. The counsel referred me to the averment in the written statement to the effect that the defendant has stated that the plaintiffs were in pecuniarily strained circumstance and that the plaintiffs had no money to purchase the property. Those averments, according to me, are insufficient to traverse the averments contained in Para.5. Even if it is assumed that it has been traversed properly by the defendant, I think I may not be justified in finding that the plaintiffs have not discharged the burden of proving their readiness, willingness and their capacity to perform their part of the contract. The Trial Court has appreciated the evidence in the case and found that the plaintiffs had the capacity to purchase the property and they were ready and willing to purchase the property. The readiness and willingness is not a matter of straight jacket formula. These requirements have to be gathered from the entirety of the facts, circumstances and evidence, relevant to the intention and conduct of the party concerned. Counsel for the appellants referred me to the evidence in the case and I am satisfied that the plaintiffs have properly discharged their burden of proof on this aspect. In my judgment, there is nothing to indicate that appellants at any stage were not ready and willing to perform their part of the contract. 19. The counsel for the respondent now wanted to challenge the finding regarding the genuineness of the contract. In my judgment, there is nothing to indicate that appellants at any stage were not ready and willing to perform their part of the contract. 19. The counsel for the respondent now wanted to challenge the finding regarding the genuineness of the contract. The appellate court has stated: "The appellant in the course of the argument did not press very much regarding the finding of the lower court on the genuineness and correctness of the agreement and the finding arrived at by the lower court on the basis of the oral evidence argued in this care." This court is bound to accept the statement of the Judges recorded in the judgment as to what transpired in the court. This court cannot allow the statement of the Judge in the judgment to be contradicted by the submission at the bar, If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. This principle is well settled by the decisions of the Supreme Court. The statements of fact as to what transpired at the hearing recorded in the judgment of the court are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. In this appeal, no affidavit has been filed to contradict what has been stated by the learned Judge. If a party is aggrieved on the ground that the facts have been recorded wrongly in a judgment, the only remedy open to such a party is to call the attention of the very Judge who has made the record of the fact in the judgment wrongly when the matter is still fresh in the mind of that Judge. This is the only legal method to have the record corrected. If no such step is taken, the matter must necessarily end there. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. Judgments cannot be treated as mere counters in the game of litigation (Per Lord Atkinson in Somasunderan v. Subramanian ( AIR 1920 PC 136 ). 20. If no such step is taken, the matter must necessarily end there. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. Judgments cannot be treated as mere counters in the game of litigation (Per Lord Atkinson in Somasunderan v. Subramanian ( AIR 1920 PC 136 ). 20. In R. V. Mollor 1858 (7) Cox CC 454 Martin J. was reported to have said: "We must consider the statement of the learned Judge as absolute varity and we ought to take his statement precisely as a record and act on it in the same manner as on a record of Court which of itself implies an absolute varity." In King Emperor v. Berendrakumar Chose 1924 (28) Cal WN 170 F. B. Page J. said: "......... these proceedings emphasise the importance of rigidly maintaining the rule that a statement by a learned Judge as to what took place during the course of a trial before him is final and decisive; it is not to be criticised or circumvented: much less is it to be exposed to animad version." In Sarat Chandra v. Sibnabati Debi (1921) Cal. LJ. 301, Sir Asuthosh Mookerjee said: "It is plain that in cases of this character where a litigant feels aggrieved by the statement in a judgement that an admission has been made, the most convenient and satisfactory course to follow, wherever practicable, is to apply to the Judge without delay and ask for rectification or review of the judgment." Judges' record is conclusive. No power is retained by the litigant or lawyer to contradict it, except before the Judge himself, but nowhere else. Of course, in 'rarest of rare cases' a party may resile and an appellate court may permit him to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and that concession had led to gross injustice. But he will not be allowed to call in question the very fact of making the concession recorded in the judgment. The question now pressed before me was not pressed before the appellate court. The Trial Court has given very convincing reasons for the finding recorded by it for holding: that the contract is genuine, I think there is no merit in the contention raised by the counsel for the respondent. 21. The question now pressed before me was not pressed before the appellate court. The Trial Court has given very convincing reasons for the finding recorded by it for holding: that the contract is genuine, I think there is no merit in the contention raised by the counsel for the respondent. 21. The counsel for the respondent submitted that in any event, this is a fit case where I should decree the suit only for damages and I should not decree specific performance of the agreement. I think it will not be proper on my part to accede to the request of the counsel. The Trial Court decreed the suit for specific performance. Considering the contentions raised by the defendant, I think it may not be proper on my part if I refuse to enforce specific performance of the agreement. 22. In the result, I allow the appeal and restore the judgment and decree of the Trial Court, with the modification that plaintiffs are directed to deposit the balance consideration within six weeks from the date of this judgment. In the circumstances, I make no order as to costs.