VIMAL KUMAR v. GYANCHAND — 1998 DIGILAW 925 (MP)

C. K. PRASAD, J. ( 1 ) THIS is second appeal by defendant No. 2 against the judgment of affirmance. Plaintiff-respondent No. 1 filed the suit for specific performance of contract, perpetual injunction and in the alternative, for recovery of possession. Civil Judge, Class II, Waraseoni, by judgment and decree dated 9-3-1984 passed in Civil Suit No. 119-A of 1983, decreed the suit. Defendant No. 2, aggrieved by the same, preferred appeal and the Second Additional District Judge, Balaghat, by his judgment and decree dated 13-4-1998, passed in Civil Appeal No. 44-A of 1987, dismissed the appeal. Defendant No. 2 being aggrieved by the same has preferred this appeal and by order dated 29-10-1988, appeal has been admitted on the following substantial questions of law :-1. Whether the finding recorded by the Courts below is based on misreading of evidence and hence perverse? ( 2 ) WHETHER there is neither any pleading nor any evidence to the effect that the plaintiff was always ready and willing to perform his part of the contract by reason of which the suit deserves to be dismissed? ( 3 ) WHETHER the suit for specific performance of contract is within time?2-3. It is an admitted position that the suit land of Khata No. 330, having an area of 1. 865 hectares, situated in village Bodhkasa, belonged to defendant No. 1 Dayaram, who on 3-6-1981 executed a sale-deed in favour of defendant No. 2 Vimal Kumar. According to the plaintiff, defendant No. 1 entered into an agreement to sell 0. 28 acres of land in his favour for a consideration of Rs. 1,600/- on 25-11-1975 and he paid the entire consideration money. It is the stand of the plaintiff that as the property was encumbered by the Government/co-operative loan, registration of the document was not permissible but defendant No. 1 had given possession of land to the plaintiff. It is the assertion of the plaintiff that defendants went dishonest and defendant No. 1 executed a sale-deed in favour of defendant No. 2 on 3-6-1981, but over the disputed land, plaintiff remained in possession. According to the plaintiff, on 25-4-1981 Panchayat took place at the residence of Dhan Singh, but the dispute could not be resolved. It is the stand of the plaintiff that defendant No. 2 knew that plaintiff is in possession over 0. According to the plaintiff, on 25-4-1981 Panchayat took place at the residence of Dhan Singh, but the dispute could not be resolved. It is the stand of the plaintiff that defendant No. 2 knew that plaintiff is in possession over 0. 80 acres of land as also he is owner thereof, inspite of that defendant No. 2 got the sale-deed executed by defendant No. 1. In the aforesaid premises, plaintiff filed the suit for specific performance of contract as also for perpetual injunction, restraining the defendants from interfering with his possession, in the alternative, for recovery of possession. ( 4 ) A joint written statement was filed on behalf of the defendants and it is their stand that no agreement was entered into between the plaintiff and defendant No. 1 nor defendant No. 1 ever received a sum of Rs. 1,600/- from the plaintiff or had handed over possession to him. According to the defendants, defendant No. 2 never knew that there was an agreement to sell entered between the plaintiff and defendant No. 2 and defendant No. 1 had legally and validly sold and handed over possession of land to the defendant No. 2. ( 5 ) ON the basis of the pleadings of the parties, trial Court framed various issues and on consideration of the materials placed before it, found that defendant No. 1 on 25-11-1975 executed an agreement to sell the suit land to the plaintiff and handed over possession to him. It further found that as the loan of the Co-operative Society was outstanding, sale deed was not registered. It further found that defendant No. 2 was aware of agreement to sell between the plaintiff and defendant No. 1 and inspite of that he purchased the suit land from defendant No. 1. Trial Court further found that the plaintiff is entitled for the decree of specific performance of contract. Lower appellate Court in appeal, has affirmed the aforesaid findings of the trial Court. ( 6 ) SHRI Ravish Agrawal appears on behalf of the appellant, whereas, respondent No. 1 is represented by Shri Prakash Gupta. Nobody appears on behalf of respondent No. 2. Lower appellate Court in appeal, has affirmed the aforesaid findings of the trial Court. ( 6 ) SHRI Ravish Agrawal appears on behalf of the appellant, whereas, respondent No. 1 is represented by Shri Prakash Gupta. Nobody appears on behalf of respondent No. 2. ( 7 ) ACCORDING to Shri Agrawal, for a decree of specific performance of contract the plaintiff is required to plead and prove that the plaintiff was ready and willing, is ready and willing and shall be ready and willing to perform his part of the contract. Shri Agrawal points out that there is absolute lack of pleadings and proof in regard to the willingness of the plaintiff. He further submits that the findings recorded by the Courts below that the plaintiff was always ready and willing to perform his part of the contract is perverse and prays for reversal of the said conclusion. He submits that once this finding is reversed, Court shall have no option than to dismiss the suit. Mr. Agrawal submits that after payment of the consideration money, plaintiff is required to take steps for registration of the document etc. ( 8 ) MR. Gupta, appearing on behalf of respondent No. 1, however, submits that as the plaintiff has paid the entire consideration money, nothing remained to be performed by him and hence the question of averring readiness and willingness does not arise at all. He further submits that the plaintiff had asked for execution and registration of the sale-deed by registered notice sent through the Lawyer, clearly satisfies the requirement of law. Shri Gupta submits that for arriving at a conclusion as to whether plaintiff is ready and willing to perform his part of contract, actual words 'readiness and willingness' are not required to be pleaded and from combined reading of the plaint, if it is found that the plaintiff has pleaded the factum of readiness and willingness, notwithstanding omission to use these words in the pleading, plaintiff cannot be non-suited on this ground. ( 9 ) SHRI Agrawal in support of his submission has drawn my attention to Form No. 47/48 of Appendix A of the Code of Civil Procedure to contend that in the absence of any pleading and proof in regard to readiness and willingness of the plaintiff, suit deserves to be dismissed. ( 9 ) SHRI Agrawal in support of his submission has drawn my attention to Form No. 47/48 of Appendix A of the Code of Civil Procedure to contend that in the absence of any pleading and proof in regard to readiness and willingness of the plaintiff, suit deserves to be dismissed. In support of his submission he has placed reliance on a Division Bench judgment of this Court in the case of Sitaram v. Hemchand, 1998 (1) MPLJ 561 and my attention has been drawn to the following passage from paragraph 7 of the judgment :-"on a perusal of the aforesaid pleadings we find that the language used is relatable to the past and there is nothing to indicate the readiness and willingness in praesenti. The aforesaid averments cannot be construed that the plaintiff has expressed his readiness and willingness on the date of institution of the suit. Even applying principle of substantial compliance we are unable to persuade ourselves that the aforesaid averments are substantially in conformity with the Forms prescribed in the Civil Procedure Code read with Section 16 (1) (c) of the Specific Relief Act. "however, Mr. Gupta submits that the matter is squarely covered by the decision of the Bombay High Court in the case of Trimbak Shankar Tidke v. Nivratti Shankar Tidke, AIR 1985 Bom 128 and my attention has been drawn to the following passage from paragraph 6 of the said judgment (at page 129)-"as stated above, at the outset, this view is hypertechnical. Such a view should not be taken in any Court unless the Court is absolutely compelled to take such a hypertechnical view. The points that in the instant case there was nothing to be performed by the plaintiff at all. The entire amount of Rs. 7000/- which was the consideration for the sale deed is already lying in the coffers of the defendant. The possession of the land has already been made over by the defendant to the plaintiff. All that remains to bedone is the execution of the sale deed by the defendant in favour of the plaintiff. So far as the plaintiff is concerned it is an executed contract on his part : What remains executory is the part to be performed by the defendant. These are the facts averred in the plaint and not denied in the written statement at all. So far as the plaintiff is concerned it is an executed contract on his part : What remains executory is the part to be performed by the defendant. These are the facts averred in the plaint and not denied in the written statement at all. If this is the position, it beats understanding as towhat is that part that the plaintiff is yet to perform. Pleadings are intended to reflect the substantive rights claimed by the parties. In the instant case every shade of the right of the plaintiff stands fully reflected in the plaint. " ( 10 ) IT is relevant here to state that according to the concurrent findings of the two Courts below, entire consideration money was paid to defendant No. 2 on the date when the agreement to sell was entered and the plaintiff was also given possession of the disputed land. Aforesaid findings have been recorded by the Courts below on consideration of relevant materials, which cannot be said to be perverse calling for interference by this Court in appeal. Hence, for decision on the question of readiness and willingness of the plaintiff, facts which stand proved are that the plaintiff paid the entire consideration money of the suit land and was given possession of the same. It is relevant here to state that the plaintiff has averred in the plaint that when he came to know that defendant No. 1 has entered into an illegal agreement to sell the suit land, plaintiff gave notice (Ex. P. 4) through his lawyer but the same was refused by defendant No. 1. In the notice a demand has been made for execution and registration of the sale deed within 3 days from the date of receipt of the notice, failing which plaintiff made it clear that he shall have no option than to invoke the jurisdiction of the Court, for the said relief. This in my opinion, fulfils the requirement of law and finds ample support from the judgment of Trimbak Shanker Tidke (supra ). ( 11 ) RELIANCE of Mr. Agrawal in the case of Sitaram (supra) is absolutely misplaced. In the case referred to above balance amount of consideration money was to be paid at the time of execution and registration of the sale deed and in the facts of that case it was found that the plaintiff did not indicate readiness and willingness. Agrawal in the case of Sitaram (supra) is absolutely misplaced. In the case referred to above balance amount of consideration money was to be paid at the time of execution and registration of the sale deed and in the facts of that case it was found that the plaintiff did not indicate readiness and willingness. However, in the present case as stated earlier, entire consideration money was paid and the plaintiff was given possession of the suit land. ( 12 ) MR. Agrawal then submits that the plaintiff never showed his willingness that the expenses of execution of conveyance shall be borne by him and in the absence of any agreement to the contrary it was the duty of the plaintiff to bear the same. He submits that failure to plead the same will result into failure to plead readiness and willingness and on this ground alone, suit deserves to be dismissed. In support of his submission he has placed reliance on a Division Bench decision of this Court in the case of E. Nageshwar Rao v. Dinesh Chandra, 1976 MPLJ 450 : ( AIR 1976 MP 205 ) and my attention has been drawn to the following paragraph of the said judgment :"as to the second point, the learned Additional District Judge has held that there was no agreement as is now alleged by the defendant about stamp paper and expenses. He observes that the agreement Ex. P. 2, could be the guide but it is silent on the point. According to him the ordinary rule governing the law of vendor and purchaser is that the expenses of execution of conveyance have to be borne by the executant. In his view, there being no cogent proof of any special arrangement, it has to be taken that the normal practice has to be followed in this case. We are not aware of any law which casts the burden on the executant to bear the cost of stamp paper and expensesfinal opinion on the question as the point was not argued. "i do not find any substance in this submission of Shri Agrawal. In the notice (Ex. We are not aware of any law which casts the burden on the executant to bear the cost of stamp paper and expensesfinal opinion on the question as the point was not argued. "i do not find any substance in this submission of Shri Agrawal. In the notice (Ex. P 4) given to defendant No. 1 plaintiff made a demand for execution and registration of the sale deed within three days from the date of receipt, failing which he further made it clear that he shall have no option than to invoke the jurisdiction of the Court for the relief. Notice sent by the plaintiff was refused by defendant No. 1. In my opinion, this clearly shows that the plaintiff was ready and willing to perform his part of the contract. ( 13 ) FROM the discussion aforesaid, it is apparent that the finding recorded by the Courts below is not based on misreading of evidence or perverse and the pleadings and evidence reflect that the plaintiff was always ready and willing to perform his part of the contract. First and second substantial questions of law framed are, thus, answered against the defendant and in favour of the plaintiff. ( 14 ) IN fairness to Shri Agrawal he has not contended that the suit filed by the plaintiff is in any way barred by limitation. Hence, the third substantial question of law is also answered in favour of the plaintiff and against the defendant. ( 15 ) ALL the substantial questions of law having been answered against the defendant and in favour of the plaintiff, I do not find any merit in this appeal and it is dismissed accordingly. In the facts and circumstances of the case, there shall be no order as to cost. Appeal dismissed. .