Chando Devi v. Suraj Kumari — 1995 DIGILAW 1291 (ALL)

Judgment : B. K. Sharma, J. 1. The plaintiff-respondent had filed Original Suit No. 584 of 1984 for specific performance of an agreement of sale in respect of an area of 1 biswa, 11 Dhoor land out of the total area of 2 Biswa, 15 Dhoor land of plot No. 306, situated in village Malakraj, Pargana and Tehsil Chail, district Allahabad, for Rs. 5,000 the Iqrarnama was executed on 8. 7. 1977 and Rs. 100 were paid by the plaintiff-respondent to the defendant-appellant. Thereafter the Iqrarnama was registered before the Sub-Registrar and at the time of registration of the agreement to sell a further amount of Rs. 2,000 was paid by the plaintiff- respondent to the defendant-appellant. After that on the asking of the defendant-appellant the plaintiff- respondent gave Rs. 500 to her in May, 1980 and then Rs. 500 in May, 1983 and only Rs. 1000 remained to be paid at the time of the execution of the sale-deed. Since it was an urban land it was agreed between the parties in the Iqrarnama that the defendant-appellant would take permission to sell from the Ceiling Department and execute the registered sale-deed within a period of a month from the date of the permission obtained. The allegations were that the defendant-appellant kept on avoiding the execution of the sale-deed stating that a dispute has arisen in respect of the land in dispute and the other properties between her and one Lala Jawahar and so it was necessary to obtain permission as early as possible from the Ceiling Department. It was further claimed that she called upon the defendant-appellant to move an application to the competent authority for obtaining permission to sell and also to obtain her signatures but she (defendant-appellant) did not do so and her intentions were not quite fair and she kept on avoiding for a long time and ultimately on 26.4.84 and 25.5.84 she sent a registered notice to her (the defendant-appellant) to obtain permission and to execute the sale-deed. The first registered notice came back unserved and the second notice came back after personal service. Before the registered notice she has sent similar notice by post on 26.7.79 but she kept on avoiding. The first registered notice came back unserved and the second notice came back after personal service. Before the registered notice she has sent similar notice by post on 26.7.79 but she kept on avoiding. After the service of the last registered notice the defendant-appellant sent a reply through an advocate claiming that the term of the Iqrarnama has expired and that the earnest money paid to her has been forfeited and refused to execute the sale-deed and made denial of having received any money as alleged. It was averred in the plaint by the plaintiff-respondent that she was ready and willing to perform her part of the contract. 2. IN the written statement various pleas were taken. IN the written statement there was no denial to the execution of the Iqrarnama or the receipt of the earnest money of Rs. 3,000 but there was denial of having received the subsequent amounts of Rs. 500 each in May, 1980 and in May, 1983 aforesaid. About the permission the defendant-appellant claimed that she had kept on meeting the plaintiff- respondent about the permission and had taken even the papers for signing but it was she (plaintiff- respondent) who always kept on avoiding. It was further claimed that when three years expired after the date of Iqrarnama, she made a strong demand to the plaintiff-respondent for sign ing on the permission papers and to obtain the sale-deed but she declined and thereupon she (defendant- appellant) forfeited the earnest money. It was also claimed that the plaintiff-respondent had no money and was not ready to obtain the sale-deed. It was also claimed that the suit was barred by time. It was further claimed that compliance of Section 16 (b) and (c) of the Specific Relief Act was not made and, therefore, the suit was barred under that provision. After the trial the suit was dismissed by the VIIth Addl. Munsif, Al lahabad by his order dated 20. 1. 88 holding that the suit was barred by time, which was a casual judgment. In its Civil Appeal No. 884 of 1984, the lower appellate court accepted the plaintiffs case of payments of Rs. 500 each as aforesaid. There was documentary proof but the said receipts were denied by the defendant and so expert examination had taken place from the side of plaintiff and the expert's report in plaintiff favour came on the record. In its Civil Appeal No. 884 of 1984, the lower appellate court accepted the plaintiffs case of payments of Rs. 500 each as aforesaid. There was documentary proof but the said receipts were denied by the defendant and so expert examination had taken place from the side of plaintiff and the expert's report in plaintiff favour came on the record. The trial court did not care to deal with the matter but the lower appellate court after scrutiny accepted the oral evidence about these payments and also the report of the expert. The lower appellate court held that the suit was within time because in the Iqrarnama no date was fixed for specific performance but there was a mention that after obtaining permission according to Ceiling Act, first party will execute the sale-deed in favour of the second party on the receipt of payment of Rs. 2,000 a balance consideration within a month from the date of the permission. He further held that under Section 26 of the Urban Ceiling Act, 1976 the application is given by the vendor on proforma A' and the proposed transferee fills and signs on the proforma 'b' and then the proforma 'b' is attached to proforma A' and consequently first step was to be taken by the defendant-appellant. The lower appellate court rejected the plea of the defendant-appellant that the plaintiff-respondent did not co- operate in obtaining the requisite permission to sell. He further held that the refusal to execute the sale- deed was made by the defendant in reply to the registered notice dated 22.5.84 given by plaintiff. The reply to the said notice was given by her on 25.5.84 and it was then that the plaintiff-respondent came to know finally that the defendant-appellant did not intend to execute the sale-deed and that the suit having been filed within three years of this date of knowledge of the intention of the defendant- appellant not to execute the sale-deed, it was within time. 3. THE lower appellate court also gave a categorical finding that in the plaint there was a clear allegation by the plaintiff of the readiness and willing ness to perform her part of the contract and that it has also been proved that she (plaintiff-respondent) was always ready and willing to perform her part of the contract. He rejected the plea of estoppel and acquiescence. He rejected the plea of estoppel and acquiescence. Consequently, he decreed the suit for specific performance of agreement to sell. 4. I have heard learned Counsel for the parties and have also gone through the record. This second appeal has no force and deserves to be dismissed. In the memo of this second appeal questions (a) to (g) have been taken as substantial questions of law. The second appeal was admitted on substantial question (a ). It was, whether the suit was barred by time as well as the principles of estoppel and acquiescence. Substantial question (c) related to two receipts of payment of Rs. 500 each. These receipts related to question of limitation. There is a categorical finding of the lower appellate court about these payments based on oral evidence and also the report of the expert. The limitation was to be counted in accordance with Article 54 of the Limitation Act, 1963 from the date fixed for the performance and if no such date is fixed from the date the plaintiff has notice that the performance is refused. In his case no date for performance was fixed but time for performance was one month from the date the permission is obtained from the ceiling department. No such permission had yet been obtained till the date of the suit. Further, the other starting point is the date on which the plaintiff-respondent had notice that the performance is refused. Here the performance could be said to have been refused only when the defendant-appellant gave a reply to the notice dated 22.5.84 sent by the plaintiff-respondent. The reply to the said notice dated 22.5.84 was given by the defendant-appellant on 28.5.84 refusing to perform her part of the contract. So the suit was within time having been filed within three years from that date. There is no force in the claim of the learned counsel for the defendant-appellant that the suit was barred by time because on the own showing of the plaintiff-respondent, the defendant- appellant had been avoiding the execution of the sale-deed which should be taken to mean a refusal. There was nothing wrong in the plaintiff-respondent treating the agreement to be subsisting and in not treating the conduct of the defendant-appellant as a categorical refusal. 5. IN the present case the defendant-appellant received part payment of Rs. 500 in May 1980 and again of Rs. There was nothing wrong in the plaintiff-respondent treating the agreement to be subsisting and in not treating the conduct of the defendant-appellant as a categorical refusal. 5. IN the present case the defendant-appellant received part payment of Rs. 500 in May 1980 and again of Rs. 500 in May, 1983 and issued written receipts for the said payments as has been held by the lower appellate court. So even though it appeared from the evidence that the defendant-appellant had been postponing the execution of the sale-deed by avoiding to move the ceiling authorities for permission to sell stating that a dispute had arisen between her and Lala Jawahar which tended to create doubt about her intention to sell the disputed land, her receiving the payment of Rs. 500 in May, 1980 and then Rs. 500 in May, 1983 against the agreement indicated to the plaintiff that she (the defendant-appellant) was interested in keeping the agreement alive. So, it cannot be said that the limitation started running at any time prior to the date of the reply to the notice given to the defendant-appellant categorically refusing to honour the agreement to sell. 6. LEARNED Counsel for the defendant-appellant, has claimed that there was no readiness and willingness on the part of the plaintiff-respondent to perform her part of the contract because she had not applied for permission before the competent authority under the Urban Ceiling Act. As noted earlier there are two allegations. The first one was of the plaintiff-respondent that she again and again approached the defendant-appellant to move the ceiling authorities for permission to sell but she evaded and did not sign the desired proforma. The allegation of the defendant-appellant on the other hand was that she had approached the plaintiff-respondent to sign the application regarding permission but she declined to do so. The lower appellate court after considering the oral evidence on the point rejected the plea of the defendant-appellant and accepted the evidence of the plaintiff-respondent on the point. The defendant-appellant did not place on record any application in respect of grant of permission, which may have been signed by her and on which the plaintiff-respondent might have refused to sign. So the defendant-appellant did not approach the plaintiff-respondent to obtain the signatures on application to take permission. The defendant-appellant did not place on record any application in respect of grant of permission, which may have been signed by her and on which the plaintiff-respondent might have refused to sign. So the defendant-appellant did not approach the plaintiff-respondent to obtain the signatures on application to take permission. There was clear evidence from the side of the plaintiff-respondent given by her husband Radhey Mohan (PW 1) that he many times approached the defendant-appellant on her behalf but she evaded and that she did not execute any application for taking permission from the Ceiling Department. No exception can be taken to the findings recorded by the lower appellate court on the point. The contention of the Counsel for the defendant-appellant amounted to this that by having refused to co-operate in the obtaining of permission to sell from the ceiling department, it was the plaintiff-respondent who had committed the breach of the contract. However, this plea has no substance as noted above. It is categorically established on record that it was the defendant-appellant who had been evading the performance of her part of the contract by not applying for obtaining the permission to sell from the ceiling authorities even though she had been obtaining further payments towards the consideration Rs. 500 each on two occasions. It cannot also be said even for a moment that there was no compliance, of the revisions of Section 16 (b) and (c) of the Specific Relief Act. There is a clear cut finding on this point recorded by the lower appellate court which is based on proper appreciation of evidence on record and there is no escape from that. The following authorities have been cited by the learned counsel for the defendant-appellant : (1) Jagarnath v. Umar, 1984 ALJ 1. (2) Rajendra Prasad Rai v. Rajeva Rai, 1974 ALJ 378. (3) Mukhtiar Singh v. Dharammal Singh, 1981 ALJ 119. 7. IN my opinion, these authorities are of no use to the defendant-appellant for the simple reason that there is a clear cut averment in the plaint as required by Section 16 (c) of the Specific Relief Act and further at the trial the compliance of this provision has been found proved. I have noted above the matter of permission to sell. No initiative was taken by the defendant-appellant to obtain the permission from the ceiling authorities. I have noted above the matter of permission to sell. No initiative was taken by the defendant-appellant to obtain the permission from the ceiling authorities. On the evidence it has been held by the lower appellate court that from the side of the plaintiff-respondent, the vendor was approached for moving the application for obtaining the said permission but she only evaded. 8. FURTHER, about the question of readiness there is also evidence of payment of Rs. 500 each in May, 1980 and May, 1983 and that there was only Rs. 1000 left to be paid and there is also oral evidence to the effect that the plaintiff-respondent was ready to perform her part of the contract. Moreover, in this connection it has been pointed out that in the execution proceedings that had been started after the decree of the lower appellate court the said remaining sum of Rs. 1,000 has been deposited before the court below, which claim has not been challenged by the defendant-appellant. Under these circumstances it is impossible to hold that there was no readiness or willingness on the part of the plaintiff-respondent to perform her part of the contract. Consequently, the second appeal fails and is dismissed with costs. The judgment and decree of the lower appellate court is affirmed. Appeal dismissed.