Rikhideo v. Phool Chand — 1991 DIGILAW 1433 (ALL)

ORDER B.L. Yadav, J. - This is defendant's second appeal arising out of suit for specific performance of the agreement for sale dated 30th January, 1985. Under the agreement disputed land was to be sold to the plaintiff for a sum of Rs. 17,200/- out of which a sum of Rs. 8,000/- was paid to the defendant, who promised to execute the sale deed after receiving remaining amount of Rs. 9,200/ The agreement for sale was registered on 15.12.1985. The defendant agreed to execute the sale deed on 30.12.1989 but did not reach the office of Registrar and avoided execution of the sale deed. The plaintiff gave a notice to execute the sale deed in terms of the agreement but the defendant failed to comply the same, hence necessity to file the suit arose. In the plaint it was specifically alleged that the plaintiff was ready and willing to perform his part of the contract. 2. The suit was contested by the defendant appellant denying the plaint allegations in general. It was averred that the amount of Rs. 7,000/- was not given for purchase of the land rather plaintiff agreed to advance this sum on the condition that the defendant mortgages his property, therefore, the defendant went with the plaintiff to execute the deed of mortgage and he signed the deed under that impression but the suit was incorrectly filed. 'Factum of readiness and willingness' as averred in para 5 of the plaint was not specifically denied, rather denial was made in para 5 to the effect that the averments made in para 5 were not accepted. 3. Trial court decreed the suit and lower appellate court dismissed the appeal. Present second appeal has been filed by the defendant. Mr. Sankatha Rai learned Counsel for the appellant urged that the suit was barred by Section 16C of Specific Relief Act 1963 (for short the Act) as the plaintiff failed 'to aver and prove' that he has performed or has always been ready and willing to perform the essential terms of the contract are to be performed by him. Reliance was placed on Suraj Singh and Another Vs. Sohan Lal and Others, AIR 1981 All 330 , Mahmood Khan and Another Vs. Ayub Khan and Others, AIR 1978 All 463 . In Mahmood Khan and another v. Ayub Khan and Ors. Reliance was placed on Suraj Singh and Another Vs. Sohan Lal and Others, AIR 1981 All 330 , Mahmood Khan and Another Vs. Ayub Khan and Others, AIR 1978 All 463 . In Mahmood Khan and another v. Ayub Khan and Ors. (supra) Divison Bench of this Court observed that the compliance of requirements of Section 16(C) of the Specific Relief Act is mandatory and in absence of the necessary averment in the plaint and in the absence of proof of the same that the plaintiff had been ready and willing to perform his part of the contract - the suit cannot succeed, even though the defendant has not raised any plea to that effect in the written statement nor these was any issue on that point. In Suraj Singh and Anr. v. Sohan Lal and Ors. (supra) it was observed by learned Single Judge that a decree for specific performance cannot be granted unless requirements of Section 16C of the Act were complied with and even absence of any plea on the part of the party resisting the plaintiff's claim to a decree for specific performance of the contract will not matter at all. I have considered the submissions of learned Counsel for the appellant and the observations of this Court in the aforesaid decisions. It has to be kept in mind that the averments about the readiness and willingness was not 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. In R.C. Chandiok and Another Vs. Chuni Lal Sabharwal and Others, AIR 1971 SC 1238 , their Lordships of Supreme court observed as follows: Our attention has been invited to a statement in Halsbury's laws of England Vol. 34, Third Edn. at page 338 that in the absence of agreement to the contrary it is the purchaser who has to prepare the draft conveyance and submit it to the vendor for approval. The very fact that they promptly filed the suit shows their keenness and readiness. In the matter of acquiring the plot by purchase, it must be remembered that the appellants had not only put in an advertisement.... Readiness and willingness cannot be treated as a strait-jacket formula. These have to be determined from the entirely of facts and circumstances relevant to the intention and conduct of the party concerned. In the matter of acquiring the plot by purchase, it must be remembered that the appellants had not only put in an advertisement.... Readiness and willingness cannot be treated as a strait-jacket formula. These have to be determined from the entirely of facts and circumstances relevant to the intention and conduct of the party concerned. In our judgment there was nothing to indicate that the appellants at any stage were not ready and willing to perform their part of the contract. In Smt. Indira Kaur and Ors. v. Shri Sheo Lal Kapoor AIR 1978 SC 1074, their Lordships of Supreme Court considering entire case law the subject held at page 1980 as follows: Whether it was the plaintiff who had committed breach by not being ready and willing to perform his part of contract or whether it was the defendant who had committed a breach of contract by refusing to convey the property in question to the plaintiff in pursuance to the agreement to sell executed by him in favour of the plaintiff has to be ascertained. In para 10 on page 1082 it was observed as follows: The real test as to whether or not the plaintiff was ready and willing to perform his part of the contract was for the defendant to call his bluff, in case it was a bluff, by remaining present at the Sub-Registrar's office on the appointed day that is to say on August 16, 1977 as he was bound to do if he, on his part, was ready and willing to execute the sale deed. In fact the lower courts ought to have considered whether the defendant himself was willing and ready to perform his part of the contract by executing the sale deed in favour of the plaintiff in discharge of the obligation undertaken under the agreement of sale executed in 1967 in favour of the plaintiff. Their lordships of Supreme Court have taken the view that the averments about the readiness and willingness in the plaint was not a strait-jacket formula but under the circumstances of the case, it has to be ascertained whether it was the plaintiff who failed to prove and aver his readiness and willingness to perform his part of the contract or it was the defendant who has failed to perform is part of the contract as contemplated under the agreement of sale. Once the evidence is led by the parties, it is for the court to ascertain as to who has failed to perform his part of the contract. Annexure 1 to the stay application is a true copy of the plaint filed by the appellant. Under Para 2 of that plaint it has been stated that in pursuance of the conditions contemplated under the agreement for sale it was decided in consultation with the defendant that on 30.12.1985 the defendant may reach the office of Registrar and execute the sale deed in favour of the plaintiff but the defendant did not reach the office of Registrar on that date. 4. Under Para 4 it has been stated that as the defendant appellant did not reach the office of Registrar on 30.12.1985 the plaintiff took it seriously and inferred that the defendant does not want to execute the sale deed. Thereafter the plaintiff served a notice on the defendant that later may come to the office of Registrar at Rasra on 16.1.1986 and execute the sale deed after accepting the remaining sale considerations as contemplated under the agreement. But the defendant did not accept that notice. Then second notice was given to the appellant that he may come to the office of Registrar on 15.2.1986 to execute the sale deed after accepting the balance of the Sale consideration but that notice was also not accepted by the defendant. Under Para 5 of the plaint it has been stated that the conditions to the extent they were acceptable by the plaintiffs have been accepted by them and the plaintiffs have been ready and willing to perform their part of the contract but the defendant did not do the needful even after repeated requests made by the plaintiffs consequently the plaintiffs had no option but to file the suit with the reliefs claimed by them. The defendant appellant in his written statement on the other hand made just as evasive reply to the positive allegations made by the plaintiffs. Rules II to v. of Order VIII of the CPC contain provisions as to how the defendant has to reply the allegations made in the plaint. Rule 2 is to the effect that the defendant must by his pleading all matters which show the suit not to be maintainable or that the transaction is either void or voidable in point of law. Rule 2 is to the effect that the defendant must by his pleading all matters which show the suit not to be maintainable or that the transaction is either void or voidable in point of law. Rule 3 provides that just a general denial of the allegations of the plaint by the defendant would not be sufficient. The defendant must specifically deny each allegations of the fact alleged by the plaintiff. Rule 4 provides that the denial by the defendant must not be evasive rather same must be positive. 5. In the present case I find that the denial of aforesaid paragraphs of the plaint was just evasive. Rule 5 of the Order VIII of the Code provides that every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability (minor). Thereafter there is a proviso to the effect that the court in its discretion may require any fact to be proved otherwise than by such implied admission. It is well known that main function of the proviso is to carve out an exception to the main enactment, it cannot be normally so interpreted so as to set at naught the main enactment. See A.N. Sehgal and others Vs. Raje Ram Sheoram and others, AIR 1991 SC 1406 , West Deriby v. M.L. Assurance Co. 1897 AC 647. In appropriate cases the court may in its discretion require the fact so admitted to be proved otherwise than by such admission. The irresistable conclusion is that the court can accept such evasive denial as if the defendant has admitted the plaint allegations; but in case court wants to be satisfied, may in its discretion require any fact so admitted to be proved otherwise than by such admission. It is therefore evident that evasive denial amounts to admission of the averments made in plaint under Para 5 about the readiness and willingness. Further the defendant did not care to see that no issue was framed on the point. It is therefore evident that evasive denial amounts to admission of the averments made in plaint under Para 5 about the readiness and willingness. Further the defendant did not care to see that no issue was framed on the point. Even though I don't assign any significance to the nonframing of the issue on the point, as the defendants were conscious about the allegations in para 5 of the plaint, he must have either led evidence in view of the dictum laid down by their lordships of Supreme Court that the defendant has also to prove that he was ready and willing to perform his part of the contract. 6. I am, accordingly, of the considered opinion that the averments about the readiness and willingness are not strait jacket formula but it has to be judged under the facts and circumstances of each case as to whether the plaintiff was ready and willing to perform his part of the contract. Not only plaintiff but in terms of the agreement once the agreement for sale was held to be legal, readiness and willingness of the defendant is also to be judged. Earlier the view taken used to be that once the plea about the readiness and willingness, was conspicuous by its absence, in the plaint and if plain allege and prove it on objection being filed by the defendant about the absence of plea of readiness and willingness as required by Section 16C of the Act, some courts used to reject the amendment application as that would amount to fill up statutory lacuna in the plaint but the view of their lordships of Supreme Court appears that in such matters amendment in the plaint seeking insertion of the plea about the readiness and willingness can be allowed. 7. In Gajanan Jaikishan Joshi Vs. Prabhakar Mohanlal Kalwar, (1989) 4 JT 524 , it was observed as follows: In the present case no fresh cause of action was sought to be introduced by the amendment applied for. All that the plaintiff appellant sought to do was to complete the cause of action for specific performance for which relief he had already prayed. Prabhakar Mohanlal Kalwar, (1989) 4 JT 524 , it was observed as follows: In the present case no fresh cause of action was sought to be introduced by the amendment applied for. All that the plaintiff appellant sought to do was to complete the cause of action for specific performance for which relief he had already prayed. It was only one averment required u/s 16(c) of the Specific Relief Act to be made in a plaint in a suit for specific performance which was not made, probably on account of some oversight or mistake of the lawyer who drafted the plaint and that error was sought to be rectified by the amendment applied for. There was no fresh cause of action sought to be introduced by the amendment and hence, no question of causing any injustice to the respondent on that account arose. 8. Plaintiff has alleged his readiness and willingness in Para 5 of the plaint and has led evidence to prove the same rather the defendant made just evasive reply under. Para 5 of the written statement and did not lead any evidence to prove either that the plaintiff failed to prove his readiness and willingness or that the defendant himself was ready and willing to perform his part of the contract. Courts below have correctly decreed the suit. It cannot, therefore, be said that the suit was barred by Section 16(c)of the Act. It cannot therefore be said that there was any error of law, much less any substantial question of law was involved, in the appeal as required by Section 100(3) of the Code of Civil Procedure. No other point was pressed. Appeal accordingly fails and dismissed summarily under Order 41 Rule 11 Code of Civil Procedure.