Gobind Singh v. Ram Ballav Upadhyay — 1991 DIGILAW 312 (PAT)

Judgment S.B.Sinha, J. 1. This first appeal is directed against a judgment and decree dated 30-4-1983 passed by Shri Uma Shankar Prasad, 1st Addl. Sub-Judge, Hazaribagh in T.S. No. 89/79/21/82 whereby and whereunder the said learned court decreed a suit for specific performance of contract filed on behalf of the plaintiff-respondent. 2. The fact of the matter lies in a very narrow compass. 3. The plaintiff with view to raise fund for marriage of his sister intended to take loan of Rs. 12,000 and the defendant taking advantage of that situation agreed to pay the aforementioned amount on his execution of a deed of sale in respect of the properties described in Schedule A of the plaint. 4. It was further allegedly agreed between the parties that the defendant shall execute an agreement in terms whereof if the plaintiff pays back the aforementioned amount of Rs. 12,000 within a period often years therefore a deed of reconveyance will be executed by the defendant in favour of the plaintiff. 5. According to the plaintiff in view of the aforementioned arrangement entered into by and between the parties a deed of sale dated 3-5-1969 was executed by the plaintiff whereby he transferred 5 acres of land appertaining to Khata Nos. 1,29 and 31 which have been more fully and in details described in Schedule A of the plaint. On the same day the defendant also executed an agreement for sale in terms whereof it was agreed that if the plaintiff pays back the said amount of Rs. 12,000 by Falgun 2035 Sambat the defendant will execute a deed of sale in his favour. 6. The plaintiff has contended that he was ready and willing to perform his part of contract but despite several requests made by him in this regard, the defendant had been evading execution of a deed of sale in his favour in terms of the said agreement for sale dated 3-5-1969. The plaintiff, therefore, served a notice dated 7-3-1979 upon the defendant calling upon him to execute a deed of sale in his favour pursuant to the said agreement. 7. It is admitted that the plaintiffs father had also sold some lands on the same date to the defendant on a consideration of Rs. 10,000 and similar agreement for sale was entered into by and between the defendant and the plaintiffs father. 8. 7. It is admitted that the plaintiffs father had also sold some lands on the same date to the defendant on a consideration of Rs. 10,000 and similar agreement for sale was entered into by and between the defendant and the plaintiffs father. 8. The plaintiff and his father thereafter filed Title Suit No. 34/79 in the court of Sub-Judge, Hazaribagh and also deposited a sum of Rs. 26,000. The said suit was later on withdrawn allegedly as there were certain formal defects. Thereafter the plaintiff filed the instant suit. 9. The defendant-appellant appeared in the aforementioned suit and filed a written statement wherein inter alia, it was contended that the suit was not maintainable as the plaintiff withdrew his earlier suit. 10. The defendant admitted that the plaintiff had executed a deed of sale in his favour on 13-5-1969 but according to him an agreement of sale was entered into by and between the plaintiff and the defendants in terms whereof the plaintiff was required to return the aforementioned sum of Rs. 12,000 by Sambat 2030. 11. According to the defendant, if there is an agreement whereby the plaintiff was to refund the amount of Rs. 12,000 by 2035 Sambat, the same is a forged and fabricated document. 12. The defendant further denied and disputed the allegations made in the plaint that the plaintiff had all along been ready and willing to perform his part of contract. 13. According to the defendant as the amount in question had not been paid to him within the aforementioned period of 2030 Sambat, the agreement for sale dated 3-5-1969 itself became inoperative and no decree can be passed in relation thereto. 14. On the basis of the aforementioned pleadings of the parties, the learned court below framed the following issues: 1. Whether the suit filed by the plaintiff is maintainable ? 2. Whether the plaintiff has any right to maintain the suit ? 3. Whether the suit is barred by law of limitation ? 4. Whether the agreement for sale (Ext. 1) is legal and valid ? 5. Whether the plaintiff is entitled to the relief, prayed for ? 6. Whether the plaintiff is entitled to any other relief ?" 15. 2. Whether the plaintiff has any right to maintain the suit ? 3. Whether the suit is barred by law of limitation ? 4. Whether the agreement for sale (Ext. 1) is legal and valid ? 5. Whether the plaintiff is entitled to the relief, prayed for ? 6. Whether the plaintiff is entitled to any other relief ?" 15. The learned court below took up issue No. 4 at the outset and upon consideration of the evidences on records came to the conclusion that in terms of the said agreement for sale, the plaintiff was required to refund the amount of Rs. 12,000 to the plaintiff within 2035 Sambat and not within 2030 Sambat. 16. The learned court below," therefore, held that the said agreement for sale is not a forged and fabricated document. 17. With regard to issue No. 3, it was held that the suit was not barred under the law of limitation. With regard to issue No. 1 the learned court below held that although the plaintiff withdrew the suit filed by him earlier namely T.S. No. 34/79 but as the said suit was permitted to be withdrawn with a leave to bring a fresh suit on the same cause of action on payment of sum of Rs. 50 and as the defendant has already withdrawn the said sum of Rs. 50 deposited by the plaintiff, the suit is maintainable. 18. The learned court below further held that the defendants failed to prove his allegation that Ext. 1 is a forged and fabricated document nor did he make any attempt to get the said document examined by any expert. 19. The learned court below also held that the very fact that the defendant got his name mutated in the office of the State of Bihar, goes to show that the agreement for sale was to remain valid for the period of ten years as otherwise there was no reason for getting his name mutated. 20. In that view of the matter, the learned court below decreed the plaintiff-respondents suit for specific performance of contract. 21. Mr. Arjun Narayau Deo, learned Counsel appearing on behalf of the appellant principally raised two contentions in support of this appeal. 20. In that view of the matter, the learned court below decreed the plaintiff-respondents suit for specific performance of contract. 21. Mr. Arjun Narayau Deo, learned Counsel appearing on behalf of the appellant principally raised two contentions in support of this appeal. Firstly it was submitted that in view of the fact that the defendant raised a specific plea that if in any agreement any stipulation has been to the effect that the plaintiff would be entitled to refund the amount up to Falgun Punarmashi 2035 Sambat ; the same is a forged and fabricated document; a clear finding in that regard should have been arrived at by the learned court below. 22. The learned Counsel submitted that in the said agreement dated 3-5-1969 (Ext. 1) an interpolation has been made so as to convert the 2030 to 2035. 23. In this connection, the learned Counsel submitted that in the suit filed by the plaintiffs father, namely Mangleshwar Upadhaya against the appellant being Title Suit No. 88/79, similar interpolation had been made and the judgment of the trial court dated 20th November, 1989 passed in the aforementioned T.S. No. 88/79 has been affirmed by this Court in First Appeal No. 16 of 1982 (R). 24. According to the learned Counsel even a Letters Patent Appeal filed by the plaintiff of the said suit, has been dismissed. A xeroxed copy of the judgment of this Court passed in the aforementioned First Appeal No. 16 of 1982 (R), has been produced before me for my perusal. 25. The learned Counsel next contended that in any event as the plaintiff has failed to prove his readiness and willingness to perform his part of contract as is required under Sec. 16 (c) of the Specific Relief Act, 1963 , the suit should have been dismissed. 26. Mr. K.K. Sahay, learned Counsel appearing 011 behalf of the plaintiff-respondent, on the other hand, submitted that the onus to prove that the said agreement dated 3-5-1969 was a forged and fabricated document was upon the defendant. 27. According to the learned Counsel the defendant has failed to discharge the said onus nor did he obtain the opinion of an expert in this regard. 28. 27. According to the learned Counsel the defendant has failed to discharge the said onus nor did he obtain the opinion of an expert in this regard. 28. The learned Counsel further submitted that the judgment in the aforementioned F. A. No. 16 of 1982 (R) having been rendered in a different situation, the same is wholly irrelevant for the purpose of the present case. The learned Counsel further submitted that the plaintiff had all along been ready and willing to perform his part of contract. 29. In view of the aforementioned rival contentions of the parties, the following questions arise for consideration in this appeal: (a) Whether the terms of agreement to repurchase the lands conveyed by the plaintiff to the defendant in terms of the agreement dated 3-5-1969 (Ext. 1) were to be performed by Sambat 2030 or by Sambat 2035 ? (b) Whether the plaintiff has been able to prove that he had all along been ready and willing to perform his part of the contract ? 30. Re Question No. 1: Mr. A. N. Deo learned Counsel appearing for the appellant submitted that the learned court below committed an error in holding that the only dispute between the parties with regard to the purported agreement for sale dated 3-5-1969 was that the contract was to be performed by 2030 Sambat or 2035 Sambat. Learned Counsel submitted that the learned court below has failed to take into consideration the statements made in paragraph 7 of the written statement wherein it was specifically contended that the said agreement is a forged and fabricated document. Learned Counsel has drawn my attention to the evidence of D. W. 9 Gobind Singh who stated that the agreement was for a period of five years and he further denied his signature on the said document. 31. Learned Counsel further drew my attention to the ordersheet dated 19-9-1980 for the purpose of showing that an application had been filed for sending the said agreement to an expert, but no order had been passed thereupon by the learned court. 32. My attention was further drawn to the fact that in paragraph 6 of Ext. 6 (An objection filed by the plaintiff in a mutation proceeding) it was specifically mentioned that the agreement was to be performed by Sambat 2031. 32. My attention was further drawn to the fact that in paragraph 6 of Ext. 6 (An objection filed by the plaintiff in a mutation proceeding) it was specifically mentioned that the agreement was to be performed by Sambat 2031. According to the learned Counsel had the agreement been genuine, Sambat 2035 would have been mentioned in the said objection so far as execution of the deed of sale pursuant to said agreement is concerned. It was, therefore, submitted that taking into consideration the cumulative effect of the evidences on record, the learned court below should have held that the agreement dated 3-5-1969 (Ext. 1) was not a genuine document. 33. The submission of Mr. Deo does not appear to be correct. It is true that in paragraph 7 of his written statement it was specifically eonterided by the defendant that the agreement was to remain valid for a period of five years, that is, the money was to be returned by the plaintiff to the defendant by Falgun 2030 Sambat and it was further contended therein that if there is an agreement, in terms whereof the money was to be returned by Purnamasi Falgun 2035, then it must be forged and fabricated document. 34. The defendant has not denied the execution of the agreement. He further did not deny that the plaintiff had executed a deed of sale on 3-5-1969 itself in respect of the properties in suit and on the same day the agreement for sale was executed by him in favour of the plaintiff, in terms whereof it was agreed that in the event the plaintiff returns the amount of Rs. 12,000 to the defendant, he would reconvey the properties. 35. From a perusal of the agreement in question, it does not appear that any interpolation has been made therein, as a result whereof, the figure 2030 Shad been changed to 2035. In the body of the said agreement not only the figure 2035 occurs, but also the same had been stated in words. 36. Had it been a case of interpolation of said document, some evidence in respect thereof should have been available on the face of the agreement itself. Learned Court below has held that the agreement is genuine, I have also seen the agreement and I did not find any infirmity whatsoever therein. 37. It is true, as was submitted by Mr. Had it been a case of interpolation of said document, some evidence in respect thereof should have been available on the face of the agreement itself. Learned Court below has held that the agreement is genuine, I have also seen the agreement and I did not find any infirmity whatsoever therein. 37. It is true, as was submitted by Mr. Deo, that in a suit filed by Ski Magleswar Upadhyay, father of the plaintiff, this Court in First Appeal No. 16 of 1982R found a similar agreement to be a forged document; but that is no ground for this Court to hold that the agreement dated 3-5-1969 (Ext. 1) is also a forged document. From a perusal of the judgment passed in the aforementioned First Appeal, it is evident that the interpolations made in the said agreement were apparent on the face of the said agreement, apart from the other circumstances which were existing to show that the said agreement is forged and fabricated. 38. In this case, the defendant admitted that Abdul Rahman, grand father of P. W. 2 was the scribe of the said agreement. The document has been proved by his grand sen Mohammad Tayab who examined himself as P. W. 2. 39. In the said agreement, Abdul Latif (P. W. 3), K. K. Upadhyay and P. W. 6 Rameswar Prasad were the witnesses common to execution of both the deed of sale as also the deed of agreement. The said witnesses stated in no uncertain terms that they witnessed execution of the agreement (Ext. 1). In cross-examination of the said witnesses, nothing could be elicited to show that the agreement itself was not genuine, but the cross-examination itself was directed only to the effect as to whether Sambat 2030 had been altered to Sambat 2035 or not. It is only when it was found that the veracity of the witnesses could not be shattered in the cross-examination, D. W. 9 in his evidence stated that the agreement is a forged and fabricated document. 40. So far as Ext. E is concerned, it is true that in paragraph 6 thereof, figure 2031 has been mentioned but in paragraphs i and 4 of the said objection filed on behalf of the plaintiff in the mutation proceedings, it was clearly mentioned that sum of Rs. 40. So far as Ext. E is concerned, it is true that in paragraph 6 thereof, figure 2031 has been mentioned but in paragraphs i and 4 of the said objection filed on behalf of the plaintiff in the mutation proceedings, it was clearly mentioned that sum of Rs. 12,000 as paid by the defendant to the plaintiff by way of consideration of the agreement for sale dated 3-5-1969 was to be repaid by Sambat 2035. 41. It is now well-known that a deed has to be construed as a whole. Thus, the error which crept in the paragraph 6 of Ext. E appears to be a typographical one. Only because typographical error has crept in paragraph 6 of the said document, it cannot be said that the plaintiff accepted that the said amount of Rs. 12,000 was required to be retured to the defendant by 2031 Sambat in view of clear statements made in paragraphs 1 and 4 to the effect that the said amount was to be returned in Sambat 2035. Further the dispute between the parties is as to whether the money was to be refunded by Sambat 2030 or 2035. It is, therefore, nobodys case that the said sum was to be refunded by the defendant by 2031 Sambat. In this situation, the submission of Mr. Deo to the effect that Ext. E is a pointer to the fact that the agreement was to remain operative for five years does not appear to have any merit. 42. So far as the application for sending the agreement to the expert is concerned, the same application was filed by the plaintiff and not on behalf of the defendant. If no order had been passed therein and the plaintiff did not feel aggrieved thereby, the defendant cannot take advantage thereof. The learned court below in my opinion, has rightly found that in the facts and circumstances of this case, it was the duty of the defendant to get his disputed signature examined by a hand-writting expert inasmuch as he claimed the said document as forged and fabricated one ; particularly in view of the fact that his signature has been identified by persons who were common witnesses of both the deed of sale as also the deed of agreement. This question must, therefore, be answered in favour of the defendant/respondent and against the defendant/appellant. 43. This question must, therefore, be answered in favour of the defendant/respondent and against the defendant/appellant. 43. Re Question No. 2: Sec. 16 (c) of the Specific Relief Act, 1963 reads as follows: Personal bars to relief.-Specific performance of a contract cannot be enforced in favour of a person- (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. 44. There cannot be any doubt that in terms of the aforementioned provision, the plaintiff in a suit for specific performance is not only required to prove that he is ready and willing to perform the essential terms of the contract. Such averments should normally conform to Form Nos. 47 and 48 of Appendix A of the Code of Civil Procedure. Paragraph 3 of Form No. 47 of Appendix-A of the Code of Civil Procedure reads as follows: The plaintiff has been and still is ready and willing specifically to perform the agreement on his part, which the defendant has had notice. Paragraph 5 of Form No. 48 of Appendix-A of the Code of Civil Procedure reads as follows: The plaintiff is still ready, and willing to pay the purchase money of the said property to the defendant. 45. Forms 47 and 48 of Appendix A of the Code of Civil Procedure therefore clearly provide that the fact of specific performance of contract is required to be pleaded and proved. 46. Mr. Deo submitted that there is neither any pleading nor any proof to show the readiness and willingness on the part of the plaintiff to perform his part of contract. Learned counsel in this connection has relied upon Abdul Khader Rowther V/s. P.K. Sara Bai and Ors. reported in -- ; in Nawal Kishore V/s. Smt. Kaukshwari Devi and Anr. reported in 1986 PLJR 431 ; in Diwali Lal and Ors. V/s. Sardar Baldev Singh and Anr. reported in 1986 PLJR 37 ; in Anand Prasad @ Anant Lal V/s. Jagernath Sharan Sahai reported in 1986 PLJR 218. 47. Mr. reported in -- ; in Nawal Kishore V/s. Smt. Kaukshwari Devi and Anr. reported in 1986 PLJR 431 ; in Diwali Lal and Ors. V/s. Sardar Baldev Singh and Anr. reported in 1986 PLJR 37 ; in Anand Prasad @ Anant Lal V/s. Jagernath Sharan Sahai reported in 1986 PLJR 218. 47. Mr. K.K. Sahay learned Counsel for the plaintiff/respondent on the other hand submitted that in paragraph 11 of the plaint, it has clearly been written that the plaintiff is ready and willing to perform his part of contract. The learned Counsel further contended that from a conjoint reading of paragraphs 6 to 11 of the plaint it would appear that requisite facts have been stated in the plaint which must be held to be in substantial compliance of the requirement of law as contained in Sec. 16 (c) of the Specific Relief Act. 48. Learned Counsel in this connection has relied upon Bishwanath Mahto V/s. Smt. Janki Devi reported in -- ; Ramesh Chandra V/s. Chuni Lal reported in -- ; in Smt. Manjushri Raha and Ors. V/s. B.L. Gupta and Ors. reported in -- ; in U. P. State Electricity Board V/s. Hari Shankar Jain and Ors. reported in AIR 1979 SC 65 ; in Indira Kaur V/s. Sheo Lal Kapoor . Learned counsel has also relied upon Abdul Khader Rowther V/s. P.K. Sara Bai repotted in -- upon which reliance has also been placed by Mr. Deo. 49. There cannot be any doubt that Sec. 16 (c) of the Specific Relief Act is mandatory in nature. The plaintiff is, therefore, required to plead and prove that he had all along been ready and willing to perform his part of contract. 50. In paragragh 4 of the plaint, it was stated that the plaintiff has applied to the defendant specifically to perform the agreement on his part, but the defendant has not done so. In paragraph 5 of the plaint, it has been contended that on Purnamasi Magh Sambat 2035, the plaintiff tendered a sum of Rs. 12,000 in respect of the agreement on 3-5-1969 and demanded that the property be transferred in his name. In paragraph 6 of the plaint, the plaintiff averred that a notice was sent through his Advocate asking the defendant to accept the sum of Rs. 12,000 in respect of the agreement on 3-5-1969 and demanded that the property be transferred in his name. In paragraph 6 of the plaint, the plaintiff averred that a notice was sent through his Advocate asking the defendant to accept the sum of Rs. 12,000 which was ready with the plaintiff and execute a deed of sale pursuant to the said agreement. The notice was sent under registered cover but the defendant had refused to accept the same. In paragraph 7 of the plaint, the plaintiff contended that he was referred (appears to be mistake for ready) to perform his part and went with money to the defendant and requested him to execute the sale deed, but the defendant did not do so on the pretext that he will execute the sale deed later on as it was not urgent. It was further contended that the plaintiff believed the assurance given by the defendant on Magh Purnamasi Sambat 2035 but thought it proper to give registered notice also. 51. In paragraph 8 of the plaint it was contended that in view of the refusal to receive of the notice sent by the plaintiff to the defendant on 27-2-1979, he filed the aforementioned mortgage suit No. 34 of 1979 along with his father and deposited a sum of Rs. 26,000. 52. As noticed hereinbefore in paragraphs 11 and 12 of the plaint it was stated: That the plaintiff is still ready and willing to specifically perform the agreement made out above but the defendant has not done so. That before the withdrawal of the suit, there was also a talk with the defendant, that he would accept the amount of Rs. 12,000 will execute the deed of sale on 9-7-1979. The plaintiff offered Rs. 12,000 in respect with the agreement and requested the defendant to execute the sale deed, but the defendant did not do so and tried to avoid and hence the suit. 53. The plaintiff in his evidence also stated that he went to the defendant on Magh Purnamasi 2035 with one Sant Singh. 54. The defendant in his statement except denying that the plaintiff came to him with the amount of Rs. 12,000 did not specifically dispute the other statements. 55. It does not appear that any specific issue was also framed before the court below. 54. The defendant in his statement except denying that the plaintiff came to him with the amount of Rs. 12,000 did not specifically dispute the other statements. 55. It does not appear that any specific issue was also framed before the court below. No such argument also appears to have been advanced on behalf of the defendant before the learned court below. 56. The plaintiff has examined the aforementioned Sant Prasad Singh (P. W. 5). He also supported the case that he had accompanied the plaintiff to the defendant with the money. It is, therefore, clear that the plaintiff has adduced also evidences in support of his pleadings that he had tendered the amount in question. 57. In order to appreciate the legal questions on this matter, it is not necessary to consider all the decisions cited at the Bar inasmuch as there does not appear to be any divergent opinion on the point. 58. In Abdul Khader Rowther V/s. P.K. Sara Bai and Ors. reported in -- , the Supreme Court upon taking into consideration all its earlier decisions in Pt. Prem Rai V/s. The D.L.F. Housing and Construction (Pvt.) Ltd. reported in -- and in Ouseph Varghese V/s. Joseph Aley reported in -- held that in a suit for specific performance of contract, the plaintiff who alleged that he is ready any willing to perform his part of contract and in absence of such an allegation, the suit is not sustainable. In that case, the High Court held as follows: Even by putting a liberal construction the various statements contained in the plaint, it is difficult to hold that there has been even a faint attempt to make it to conform to the requirements prescribed in Forms 47 and 48 of the First Schedule in the Civil Procedure Code, that the plaintiff had applied to the defendants specifically to perform the agreement and that he had been and is still ready and willing to specifically perform his part of the agreement. The Supreme Court in upholding the finding of the High Court held as follows: 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. 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. 59. In recent decision in Prayag Mahto V/s. Ram Janatn Mahto reported in 1991 BBCJ 118 , I had considered a large number of decisions including the decision in Abdul Khader (supra) and came to the conclusion that there must be a substantial compliance of the provisions of Sec. 16(c) of the said Act. 60. In that decision, however, it was held that averment of willingness and readiness may not be in the exact words used by the Legislature, but what was necessary was that the substance of it must be there. This Court further referred to the decision in Mam Sarup Gupta V/s. Bishun Narain Inter College -- and Ramesh Chandra V/s. Chuni Lal reported in -- for the purpose that pleadings should be liberally construed and what is required to be seen is its substance. In fine, this Court held: The proposition of law that a substantial compliance of the provisions of Sectional 6 (c) of the Act shall serve the requirement of law is neither in doubt nor in dispute. The question, therefore, which arises for consideration is as to whether the plaintiff has fulfilled the requirement of law in this case or not. 61. In this case, the plaintiff was not required to do anything further, but to tender the amount to the defendant. The plaintiff has not only pleaded the said fact, but also proved the same. As radicated hereinbefore, in paragraph 11 of the plaint, it has clearly been averred that the plaintiff was ready and willing to perform his part of contract. 62. Taking thus all the facts and circumstances into consideration, I am of the view that the suit of the plaintiff was not liable to be dismissed for alleged non-compliance of the provisions of Sec. 16(c) of the Specific Relief Act. 63. No other contention has been raised in this appeal. 64. In view of my findings aforementioned, there is no merit in this appeal which is accordingly dismissed. However, in the facts and circumstances of this case, the parties shall pay and bear their own costs of this appeal.