Bibi Anwarunisa v. Daulat Rai And Mahesh Rai — 1993 DIGILAW 348 (PAT)

Judgment S.B.Sinha, J. 1. This first appeal is directed against an order dated 5th July, 1975 passed by Shri Satya Narain Prasad Seth, Sub-Judge Giridih in Title Suit No. 9 of 1974 whereby and whereunder he dismissed the suit for a decree for specific performance of contract filed by the plaintiff-appellant. 2. The plaintiff executed five sale deeds in favour of the defendants in respect of the lands described in Schedule A/1 to A/5 of the plaint each for a consideration of Rs. 2,000. Another sale-deed was executed in respect of Schedule A/6 of the plaint on 25-3-1969 in favour of the defendants for a consideration of Rs. 1,000. 3. The first five deeds of sale were registered on 25-3-1969. On the respective date of the execution of the registered deeds of sale, agreements had been entered into to the effect that the defendants should reconvey the suit lands to the plaintiff if the amount of consideration is returned to the defendants in the month of Magh in any year from 25-3-1969 to 24-3-1974. The said agreements were marked as Exts. 4 to 4/E. According to the plaintiff she tendered the entire amount of Rs 11,000 through her men to the defendants. During the month of Magh in the year 1973 as also in the year 1974, on several occasions but the defendants deliberately or intentionally refused to receive the said amount. 4. On 6-2-1974 a notice was issued to the defendants requesting the defendants to accept the tendered amount and reconvey the suit lands, but despite receipt of the said notice of 11-2-1974, neither any reply thereto was given nor the defendants performed their part of the contract. 5. Both the defendants in the suit filed a joint written statement wherein inter alia it was denied or disputed that the plaintiff tendered any amount to them. It was further contended that as the notices were sent on 11-2-1974 i. e. in the month of Falgun. After the expiry of the contractual period, they were not bound to reconvey of the property. 6. Tee learned trial court inter alia held that the plaintiffs did not tender the amount during the stipulated period and thus no decree for specific performance of contract could be executed. 7. The plaintiff has preferred this appeal against the aforementioned judgment and decree. 6. Tee learned trial court inter alia held that the plaintiffs did not tender the amount during the stipulated period and thus no decree for specific performance of contract could be executed. 7. The plaintiff has preferred this appeal against the aforementioned judgment and decree. This first appeal was disposed of by a learned Single Judge of this Court by a judgment dated 22nd September, 1987. 8. From a perusal of the said judgment, it appears that before the learned Single Judge only the following contentions were raised: (i) The finding of the learned Sub-Judge that the plaintiff has not tendered the money in Magh 1973 or 1974 is not correct. (ii) That time was not the essence of the contract and when there was no issue on this point and no opportunity was given to the parties to lead evidence, the finding should not have been given by the trial court. 9. The learned Single Judge dismissed the plaintiffs appeal. A Letters Patent appeal was preferred by the appellant against the said judgment and a Division Bench allowed the said Letters Patent appeal and remitted the matter back to this Court with the following directions: The first appeal court, which was the court of fact, should have decided as to whether, in the facts and circumstances of the case, there was readiness and willingness on the part of the appellant on the basis there was sufficient averment. In that view of the matter, the appeal is allowed. The judgment of the appeal court is set aside the matter is remanded back to the appeal court for consideration of the matter afresh on the point indicated above. 10. Thereafter the matter appears to have put up before a learned Single Judge of this Court. By an order dated 5-8-1992 the first appeal was directed to be heard on 31-8-1992. However, in the meanwhile, the plaintiff filed an application for amendment of the plaint in terms whereof the following words were to be inserted, at the end of paragraph 4 of the plaint, "plaintiff has thus been all along and is still ready and willing to perform her part of the agreements by paying back the entire purchase money of the properties in question to the defendants." 11. It was submitted on behalf of the respondents that as the only question which has to be decided by this first appellate court was as to whether the appellant perform her part of the contract as required under Sec. 16 of the Specific Relief Act, the said application for amendment should be rejected. 12. By an order dated 18-8-1992 this Court held as follows 5 Since the point involved under Sec. 16 of the Specific Relief Act has to be decided in the facts and circumstances of the case as per the remand order, 1 do not find the proposed amendment to be allowed on the same issue. As per submission of Mr. Prasad the averments of readiness and willingness of plaintiff to perform the part of the contract stand mentioned in paras 4 and 6 of the plaint as such the proposed amendment is not necessary to be allowed. Thus, the prayer for amendment is refused. 13. This case thereafter was heard by a learned Single Judge of this Court on two different dates but the same was directed not to be treated as part heard. 14. Mr. N. K. Prasad, the learned Counsel appearing on behalf of the petitioner despite the limited scope of the appeal in view of the order of remand has raised various contentions in support of this appeal. Firstly the learned Counsel submitted that the learned trial court committed a mistake in recording a finding that the time was of the essence of the contract. He further submitted that the trial court also committed a mistake in holding that the plaint does not satisfy the requirement of Sec. 16 (c) of the Specific Relief Act and in this connection he relied upon a decision of the Supreme Court in Ramesh Suandra V/s. Chuni Lal reported in AIR 3971 SC 1238 and Smt. Indira Kaur V/s. Sheo Lal Kapoor reported in AIR 1988 SC 1074 . 15. The learned Counsel further assailed the finding of the trial court to the effect that the plaintiffs had not been able to prove that they had all along been ready and willing to perform their part of the contract. 16. 15. The learned Counsel further assailed the finding of the trial court to the effect that the plaintiffs had not been able to prove that they had all along been ready and willing to perform their part of the contract. 16. The learned Counsel further submitted that the learned trial court committed an error in drawing an adverse inference for non-examination of the plaintiff and according to the learned Counsel a further error was committed by the learned Single Judge in holding that the money was not deposited in court which also was indicative of the fact that the plaintiff was not ready and willing to perform his part of the contract. 17. According to the learned Counsel, as the plaintiff was only to tender the amount, it was not necessary for it to deposit the amount in court unless it was so directed. 18. It was further submitted that while considering a case of specific performance of contract the defendants conduct should also be taken into consideration. 19. Mr. Prasad further submitted that in any event, the entire approach of the learned trial court was misconceived inasmuch as he failed to take into consideration that in view of the clear stipulations made in the agreement itself to the effect that the deeds of reconveyance were to be executed within the period of five years from the date of execution of the deeds of sale, the mention of the month Magh was redundant. 20. Mr. B. Y. Kishore, the learned Counsel appearing on behalf of the respondent, on the other hand, submitted that the first appeal having been remitted on the question formulated by the Bench hearing the Letters Patent appeal, this Court should not take into consideration all the submissions made by Mr. Prasad. It was submitted by Mr. Kishore that the necessary averment in terms of Section 16 (c) of the Specific Relief Act must conform to the rules of pleadings as evidenced by Form No. 47 of Appendix A of the Code of Civil Procedure. 21. The learned Counsel further submitted that the learned trial court upon taking into consideration has come to the conclusion that the plaintiffs have failed to prove that they were ready and willing to perform their part of the contract and thus, such a finding of fact should not ordinarily be disturbed this Court. 22. 21. The learned Counsel further submitted that the learned trial court upon taking into consideration has come to the conclusion that the plaintiffs have failed to prove that they were ready and willing to perform their part of the contract and thus, such a finding of fact should not ordinarily be disturbed this Court. 22. The learned Counsel further sought to distinguish the Supreme Court decisions in Smt. Indira Kaurs case (supra) submitting that therein the Supreme Court was considering a case where agreement of sale itself was doubtful. 23. In this case, according to Mr. Kishore the agreements are contemporaneous documents. The learned Counsel further submitted that the tender of amount was required to be made in terms of the agreement. He further submitted that the testimonies of PW 4 and PW 5 should not be believed. 24. Although much could say about the point as to whether the pleading of the petitioner in paragraph 4 and the second sentence of the paragraph 6 shall conform to the provisions of Sec. 16(c) of the Specific Reliefs Act or not, in the light of the various decision of the Supreme Court as of this Court in Prayag Mahto V/s. Ram Janam Mahto reported in 1991 BBCJ 118 equivalent to 1992 (2) PLJR 358, but it is not necessary so to do in view of the order of remand passed by the Division Bench in LPA No. 74 of 1987 (R). 25. There cannot be any doubt that in relation to an immovable property normally time is not of the essence of the contract, 26. In this case the terms of the agreement for re-purchase reads thus;- The executant hereby agree as under the writ that the Executant have obtained a registered sale-deed on the even date in respect of 1.0 acres having unsettled raiyati rights in Mauza Magha Khurd Cadi Lataki, Pargana Khargdiha, Thana Gamua Sub-registry Giridih, District registry and district Hazaribagh within Khata No. 21, Khewat No. 5, Thana No. 356 and Tanzi No. 17 Plot No. 536 on consideration money of Rs. 2,000 from the Executee. That it has been settled between the parties that the sale of the land aforesaid noted in the agreement within the stipulated period of five years, that the Executee will pay of Rs. 2,000 in cash in the month of Magh of the each year to the executant. 27. 2,000 from the Executee. That it has been settled between the parties that the sale of the land aforesaid noted in the agreement within the stipulated period of five years, that the Executee will pay of Rs. 2,000 in cash in the month of Magh of the each year to the executant. 27. It is now well-known that a document has to be read in its entirety for the purpose of arriving at its gathering the intention of the parties. There cannot be any doubt that the agreement was to remain valid for a period of five years but the appellant was to pay a sum of Rs. 2,000 in cash in the month of Magh of each year to the executant. If it is held that in terms of the aforementioned deed the appellant was entitled to tender any amount within the period of five years from the date of the executant thereof ; the sentence following the same, i. e. to the effect that the executee will pay Rs. 2,000 in cash in the month of Magh of the each year to the executant, become wholly surplusage and redundant. 28. It is in the context of the aforementioned condition of the document the question posed has to be answered. 29. Sec. 16 (c) of the Specific Reliefs Act reads thus: 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 such has been prevented or waived by the defendant. 30. In a case where an agreement had been entered into for purchase of an immovable property whether on the basis of an agreement of re-purchase or otherwise, the executee is not only to tender the amount in question but also to take necessary steps for purchase of non-judicial stamps etc. 31. For the purpose of obtaining non-judicial stamps, the necessary stamp duties have to be deposited in the treasury. 32. It is, therefore, not a case where the plaintiff was to pay the amount of consideration only. 33. 31. For the purpose of obtaining non-judicial stamps, the necessary stamp duties have to be deposited in the treasury. 32. It is, therefore, not a case where the plaintiff was to pay the amount of consideration only. 33. It cannot be disputed that in a suit for specific performance of contract the plaintiff is required to plead and prove that he had all along been ready and willing to perform his part of the contract which thus is a continuous process. The burden of proof to prove such a fact primarily lies upon the plaintiff. It is more so in view of the fact that grant of a decree for specific performance of contract is discretionary one inasmuch as the court upon adjusting the equities of both the parties may decline to pass a decree for specific performance of contract. 34. The learned Trial Court inter alias held as follows: That the plaintiff tendered the said sum of Rs. 11,000 through her men to the defendants during the month of Magh in the year 1973 and also in the year 1974 several times but the defendants have not accepted the money and deferred the matter for future. Thereafter, the plaintiff seat notices to the defendants by registered post on 6-2-1974 through her lawyer requesting the defendants to accept the money and reconvey the suit lands to the plaintiff. The said notices were personally received by the defendants on 11-2-1974, but they neither accepted the money nor transferred the suit lands nor gave any reply to the notices. It is now clear that the defendants are refusing to fulfil the terms of the said agreement with mala fide intention. Again in his evidence, PW 5 Khaja Amanat Noor, who is the Karinda of the plaintiff, has stated as follows: Mudaiya barabar Rupya dene ke liye amada thi thana be abhi bhi Rupya done ke liye taiyar hai. Thus I find the plaint and in evidence it has been specifically averred that the plaintiff was always ready and willing to perform her part of the contract and that she is still ready and willing to perform her part of the contract. Thus I find that the averments, as laid down under the Code of Civil Procedure and Specific Reliefs Act, are mentioned in the plaint and in evidence and so, the suit cannot be said to be bad on that score. Thus I find that the averments, as laid down under the Code of Civil Procedure and Specific Reliefs Act, are mentioned in the plaint and in evidence and so, the suit cannot be said to be bad on that score. But I have already pointed out that in a suit for specific performance of a contract, the plaintiff should not only specifically make the aforesaid averments, but he should also prove all these things. Now, let us scrutinize the evidence on the record and find out as to how far the plaintiff has succeeded in proving that she was always ready and willing to perform her part of the contract." 35. The plaintiff has categorically stated that the stipulated considera-tian amount had been tendered in the month of Magh 1973 and once in the months of 1974 to the defendants but they did not receive the amount and put off the matter on some pretext or the other. The defendants however, have denied or disputed the same. In order to prove the aforementioned fact the plaintiff has examined two witnesses. PW 4 is Munshi Rai and PW 5 is Khaja Amanat Noor. Both the witnesses made a general statement that a tender had been made on two occasions in the month of Magh 1973 and in the month of 1974. Neither PWs 4 or 5 in cross-examination was able to say the date or the day on which the alleged tender was made. 36. PW 4 stated that he had gone to tender the aforementioned amount not only with PW 5 but also with one Amanat Noor. However, PW 5 in his deposition does not say that while he went to tender the amount to the defendants either PW 4 or the aforementioned Amanat Noor accompanied him. The said witnesses further could not say about the details of the defendants residence. 37. It has further Come on records that defendant Mahesh Rai is son-in-law of Nunu Rai. Nunu Rai is the brother of Daulat Rai. PW 4 admitted Nunu Rai and Dalaut Rai lived separately. Both PW 4 and 5 however did not disclose as to whose house they had gone on each occasion PW 5 does not seem to have an idea of Samvat Calendar. The witnesses examined on behalf of the plaintiff resides at Patna. According to them, the husband of the plaintiff arranged for the amount. Both PW 4 and 5 however did not disclose as to whose house they had gone on each occasion PW 5 does not seem to have an idea of Samvat Calendar. The witnesses examined on behalf of the plaintiff resides at Patna. According to them, the husband of the plaintiff arranged for the amount. The said witnesses stated that the husband of the plaintiff is an Inspector of the Excise Department. PW 5 however, has pleaded his ignorance as to how money had been arranged and who did so. 38. Admittedly the aforementioned Amanat Noor was not examined. The plaintiff neither examined herself nor her husband. 39. It is now well-known that it is the bounden duty of the party personally knowing the facts and circumstances to give evidence on his own behalf and to submit to cross-examination and his non-appearance as witness would be the strongest possible circumstances which will go to discredit the truth of his case . 40. Further in this case the plaintiffs husband is an Inspector of Excise. He, therefore, could have examined himself at least to prove that he had arranged for money and it was at his instance that the PWs 4 and 5 had gone to tender the amount of the defendants. It also appears strange as to why the plaintiffs husband himself did not visit the residence of the defendants to tender the amount which was accepted by a person eager to re-purchase the property ; particularly in view of the fact that the plaintiffs herself had been residing at Patna. 41. No cogent reason has also been assigned for non-examination of Amanat Noor. He, was, in the facts and circumstances of the case an important witness. Thus an adverse inference has to be drawn for his non-examination also. 42. For the reasons aforementioned, it cannot be said that the findings arrived at by the learned trial court are liable to be discarded. 43. It is true that this Court as a Court "of First Appeal is entitled to reappraise the evidence. However, it is now well-known that normally the finding of fact based on oral testimonies of the witnesses should not be lightly interfered with as the Court of first instance had the occasion to look to the demeanour of the witnesses. 44. It is true that this Court as a Court "of First Appeal is entitled to reappraise the evidence. However, it is now well-known that normally the finding of fact based on oral testimonies of the witnesses should not be lightly interfered with as the Court of first instance had the occasion to look to the demeanour of the witnesses. 44. Recently in Isha Khan V/s. Smt. Raj Kaur reported in 1993 (2) PLJR 246, it was held as follows: In Madholal V/s. Official Assignee of Bombay reported in AIR 1950 Federal Court page 21, it has been observed: It is true that a judge of first instance can never be treated as infalliable in determining on which side the truth lies and like other Tribunals he may go wrong on question of fact but on such matters if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at, the Appeal Court should not lightly interfere with the judgment. To the same effect is the judgment of the Supreme Court in Madhusudan Das V/s. Narayani Rai reported in 1983 SC 114: In this case, the learned trial court had considered the testimonies of the witnesses examined on behalf of the plaintiff relating to construction of the house, upon reading the evidences of the witnesses as a whole. 1 find that the findings arrived at by the trial court are reasonable and as such there is no reason as to why this Court would differ with the said findings on the aforementioned point, although, he may not be correct in proceeding to decide the suit on the basis that Charan Singh had been able to show that he had been able to show that he had been in possession of the house in the year 1960 only in terms of Ext. 3 series. 45. Keeping in view the facts and circumstances of this case, therefore, I hold in agreement with the findings arrived at by the trial court that the plaintiff has failed to prove that she had all along been ready and willing to perform her part of the contract and she tendered the amount in question to the defendant. 46. In the result, the judgment and decree passed by the learned Court below is affirmed and the appeal is dismissed. 46. In the result, the judgment and decree passed by the learned Court below is affirmed and the appeal is dismissed. However, in the facts and circumstances of the case, there will be no order as to costs.