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Allahabad High Court · body

1996 DIGILAW 1366 (ALL)

HARI OM v. GOPAL

1996-11-28

A.P.SINGH

body1996
A. P. SINGH, J. This is defendants appeal. Plaintiff Shri Gopal filed suit for specific performance with the allegation that Matru Mai, father of the defendants had agreed to sell his residential house for a sum of Rs. 9,500 for which he executed a written agreement and had also accepted Rs. 2,000 by way of advance money with the stipulation that out of Rs. 2,000, he will pay interest at the rate of 2% per month on the sum of Rs. 1,000 and the said amount of interest will be taken into account at the time of execution of sale-deed, and the sum, which is found payable by way of interest will be reduced from the amount of remaining sale consideration, which is payable at the time of execution of sale-deed. 2. The appellant denied that Matru Mai, his father had ever executed the agreement deed. He further denied that any amount by way of advance was paid to him. It was further pleaded that the plaintiff- respondent has not shown his readiness and willingness for getting the sale-deed executed and for paying sum of Rs. 7,500, the alleged remaining amount of the sale consideration payable at the time of execution of sale-deed as per the agreement. 3. Parties led evidence in support of their respective cases. Both the courts below returned the findings against the defendant-appellant. It was held that Matru Mai, father of the defendant had executed the agreement and had also taken a sum of Rs. 2,000 by way of advance for selling the house in suit. 4. The trial court also found that the interest at the rate of 2% per month on the Sum of Rs. 1,000 as per the stipulation in the agreement deed, was payable by the defendant and the same sum was liable to be taken into account in the sale consideration, as per the pleadings made by the plaintiff-respondent, on appeal by the defendant, the lower appellate court set aside this finding but affirmed the other findings, namely, finding relating to the execution of the agreement at sell, and the receipt of sum of Rs. 2,000 by the father of the defendants. The lower appellate court, however, held that the stipulation regarding payment of interest at the rate of 2% per month on the sum of Rs. 2,000 by the father of the defendants. The lower appellate court, however, held that the stipulation regarding payment of interest at the rate of 2% per month on the sum of Rs. 1,000, as was pleaded by the plaintiff, was bogus as no interest could be payable on the money which was paid by the plaintiff to the defendants father by way of advance of the sale consideration. The courts below, however, decreed the suit and directed the defendant-appellant to execute the sale-deed failing which the plaintiff was allowed to get the sale-deed executed through court. 5. Sri Vishnu Sahai, learned counsel, has appeared for the appellant. However, none has appeared on behalf of the plaintiff. 6. A cross-objection too has been filed by the plaintiff-respondent challenging the finding of the lower appellate court on the point relating to the liability of the appellant to pay interest on the sum of Rs. 1,000 at the rate of 2% per month. The cross-objection is accordingly dismissed for default of appearance of the counsel for plaintiff. 7. Learned counsel for the appellant emphasised that Rule 3 of Order VI, Code of Civil Procedure provides the form of pleadings. According to it, the pleading have to be made as per various forms given in Appendix a - whichever may be applicable. However, where they are not applicable, the pleadings should be made, as nearly as may be, as per forms given in the Appendix a. Forms 47 and 48 of Appendix A deal with the pleadings, which have to be made in a suit specific performance. 8. According to learned counsel, though para 3 of Form 47 of Appendix A requires an averment about the fact of readiness and willingness of the plaintiff to get the sale-deed executed in the past, as also in the present and future, but what has been stated in the plaint, which has been filed by the plaintiff- respondent, there is no averment of plaintiff-respondents readiness and willingness, except for his readiness and willingness to get the sale-deed executed prior to the filing of the suit. He further pointed out that para 5 of Form 48, which provides for an averment to the effect that the plaintiff so still ready and willing to pay the purchase money of the said property to the defendant, is missing in the present case. He further pointed out that para 5 of Form 48, which provides for an averment to the effect that the plaintiff so still ready and willing to pay the purchase money of the said property to the defendant, is missing in the present case. In the context of aforesaid provisions, learned counsel pointed out the averment made in para 11- A of the plaint filed by the plaintiff-respondent wherein he has showed his readiness and willingness to pay a sum of Rs. 5,760/-and not a sum of Rs. 7,500 which, as per the agreement set up by the plaintiff- respondent, had to be paid to the time of execution of the sale-deed, once the pleading of the plaintiff relating to the appellants liability to pay interest on the sum of Rs. 1000 is excluded as per the finding in the judgment of the lower appellate court. It was further contended that in the absence of averment by the plaintiff that he was ready to pay balance amount of the sale consideration agreed upon in the agreement deed, no decree for specific performance of the contract of sale could be passed. 9. Looking to the averments made by the plaintiff in paragraphs 8 and 11 of the plaint, it does appear that the requisite averments, which are required by law to be made in the plaint, are conspicuous by its absence in the plaint filed by the plaintiff. Although it is not necessary for the plaintiff to state the exact words, which have been used in Forms 47 and 48 of Appendix A but averment to the effect, which is required to be made in the plaint can be made in whatever style and language the plaintiff prefers. But, what is imperative is that, in sum and substance, the averment in the plaint must disclose the facts, which are required by para 3 of Form 47 and para 5 of Form 48 of Appendix A. In the absence of these averments, the suit cannot succeed and for that reason it is bound to fail. 10. What has been stated in para 8 of the plaint by the plaintiff is as follows : @hindi = Matter 11. Similarly, averments made in para 11-A, which relates to the relief clause, too reads as follows: @hindi = Matter 12. 10. What has been stated in para 8 of the plaint by the plaintiff is as follows : @hindi = Matter 11. Similarly, averments made in para 11-A, which relates to the relief clause, too reads as follows: @hindi = Matter 12. A reading of para 8 of the plaint extracted hereinabove shows that what has been stated by the plaintiff is his readiness and willingness for getting the sale-deed executed prior to the filing of the suit. There is no averment in the plaint that he is still ready and willing to get the sale-deed executed. Whereas, in para 3 of Form 47 of Appendix A, what is required is that apart from showing his readiness and willingness in the past, the plaintiff must state and show his readiness and willingness in the present and also in future. He is under duty to establish by evidence that the is still ready and willing to get the sale-deed executed. 13. Similarly in para 11 (A) of the plaint, the plaintiff has not shown that he is ready to pay the sum of Rs. 7,500 which according to agreement deed, was payable by him to the appellant at the time of execution of the sale-deed. He has disclosed his readiness to pay only a sum of Rs. 5,760 or a sum lesser than that which may be found payable after taking into account the interest payable by defendants to him on the sum of Rs. 1000. 14. Once the lower appellate court has set aside the finding regarding liability of the defendant to pay interest on the sum of Rs. 1000 the readiness of the plaintiff to pay a sum of Rs. 5,760 only cannot meet the requirement of para 5 of Form 48 of Appendix A. Therefore, the plaint, as filed by the plaintiff lacked in material particulars, inasmuch as, mandatory averments were missing from it. 15. The argument raised on the point of readiness and willingness in the context of para 3 of Form 47 and para 5 of Form 48 of Appendix A has been dealt with by the lower appellate court in para 10 of its judgment. But the lower appellate court has not dealt with the issue as to whether the plaintiff- respondent has shown his readiness and willingness even at the time of the filing of the suit, or, thereafter. But the lower appellate court has not dealt with the issue as to whether the plaintiff- respondent has shown his readiness and willingness even at the time of the filing of the suit, or, thereafter. In the absence of pleading to that effect in the plaint, such a finding obviously was not expected to have been recorded. 16. Section 16 of the Specific Relief Act gives the grounds which bar the grant of relief of specific performance. Clause (c) deals with the question, which is involved in the present case. It reads as follows: "16 personal bars to relief: (c) who fails 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. Explanation.- For the purposes of clause (c)- (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court. (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. " 17. A reading of clause (c) of Section 16 shows that if there is no averment and proof that the plaintiff has performed or has always been ready and willing to perform the essential terms of the contract, which are required to be performed by him, then no decree for specific performance can be granted. 18. In the present case, though the plaintiff-respondent has shown his readiness and willingness to perform his part of contract prior to filing of the suit, but there is no averment that he had always been, and, is still ready and willing to perform his part of contract. In these circumstances, the suit could not be decreed and it was liable to fail. 19. Similarly, averments made in para 11-A of the plaint that he is prepared to pay a sum of Rs. 5,760 only instead of Rs. 7,500 too discloses that the plaintiff-respondent was not ready and willing to perform his part of contract which is stated to be his obligation under the agreement of sale to pay a sum of Rs. 7,500 at the time of execution of sale-deed. 5,760 only instead of Rs. 7,500 too discloses that the plaintiff-respondent was not ready and willing to perform his part of contract which is stated to be his obligation under the agreement of sale to pay a sum of Rs. 7,500 at the time of execution of sale-deed. In the circumstances, and, for these reasons, the suit was liable to be dismissed. The courts below have committed grave illegality in decreeing the suit instead. 20. In the result, the appeal is allowed. The suit of the plaintiff is dismissed and judgment and decrees passed by the courts below are set aside. The defendant-appellant shall be entitled to cost of the throughout. Appeal allowed. .