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2002 DIGILAW 19 (MAD)

V. Udayakumar v. Navaneethammal

2002-01-22

P.D.DINAKARAN, S.JAGADEESAN

body2002
Judgment : S. Jagadeesan, J. 1. The legal-heirs of the defendant in O.S.No.1 16 of 1981 on the file of the First Additional Subordinate Judge, Pondicherry are the appellants herein. 2. Thepredecessor in title of the respondents herein laid the said suit for specific performance on the basis of the agreement entered into between one Subramaniam, S/o Natesa Pillai - the plaintiff with one Rajeswari - the predecessor in interest of the appellants herein on 20.11.1978. On the date of the agreement, a sum of Rs.10,000 was paid as an advance to the defendant in the suit. Subsequent to the suit agreement, the said Subramaniam, the son of the plaintiff died and hence, the plaintiff filed the suit to enforce the agreement seeking specific performance. 3. In the written statement, a plea was raised that the time is essence of the contract and there is no privity of contract between the plaintiff - the father of the said Subramaniam - the agreement holder and the defendant and as such, the suit agreement cannot be enforced. 4. Onthe above pleadings, the Subordinate Judge framed the following issues: (i) Whether the plaintiff is entitled to the specific performance as prayed for in the plaint? and (ii) Whether the plaintiff is entitled to permanent injunction restraining the defendant from dealing with the suit property in any manner of the suit property? To what other relief the plaintiff is entitled to? 5. Having framed the above issues, the learned trial Judge, after considering the oral as well as the documentary evidence let in by both the parties, found that the plaintiff-the father of the agreement holder is entitled for the specific performance of the suit agreement and ultimately decreed the suit as prayed by his judgment and decree dated 3.8.1983. 6. Aggrieved by the judgment and decree of the trial Court, the defendant filed an appeal in A.S.No.737 of 1983 on the file of this Court. The learned Single Judge framed the following questions for consideration for the disposal of the appeal: (i) Whether the plaintiff is entitled for the specific performance prayed for in the plaint? and (ii) Whether the plaintiff is entitled for the permanent injunction restraining the defendant from dealing with the suit property in any manner? 7. The learned Single Judge framed the following questions for consideration for the disposal of the appeal: (i) Whether the plaintiff is entitled for the specific performance prayed for in the plaint? and (ii) Whether the plaintiff is entitled for the permanent injunction restraining the defendant from dealing with the suit property in any manner? 7. Thelearned Single Judge, after considering the evidence elaborately, concurred with the findings of the trial Court and dismissed the appeal by his judgment and decree dated 20.9.2001, against which, the present appeal has been filed. 8. Mr.R.Gandhi, learned senior counsel for the appellants vehemently contended that there is no averment in the plaint that the plaintiff was ready and willing to perform his part of the contract. Further, there is no privity of contract between the plaintiff and the defendant and as such, the suit is liable to be dismissed and that the plaintiff being the second degree heir of the said Subramaniam the agreement holder, it is not open to him to maintain the suit, especially when class-1 heir -the mother of the agreement holder is alive. 9. We have carefully considered the above contentions of the learned senior counsel for the appellants. 10. From the pleadings, no issues were framed either by the trial Court or by the learned Single Judge with regard to the readiness and willingness of the plaintiff in respect of the performance of his part of the contract. If really such plea has been raised, the parties ought to have insisted for framing of the specific issue with regard to that question. When there is no specific issue with regard to the readiness and willingness on the part of the plaintiff and when there is no discussion, it is not open to the learned senior counsel for the appellants to raise such a plea before this Court. 11. However, a perusal of the judgments of the trial Court as well as the learned Single Judge reveals that the plaintiff alone took some steps to enforce the agreement by obtaining signature from the defendant in order to get no objection from the revenue authorities or the land ceiling authorities. When the plaintiff had taken some steps to enforce the agreement, that would be sufficient to establish that the plaintiff was ready and willing to perform his part of the contract. When the plaintiff had taken some steps to enforce the agreement, that would be sufficient to establish that the plaintiff was ready and willing to perform his part of the contract. The conduct of the plaintiff in taking such steps can impliedly lead to the inference with regard to his readiness and willingness to perform his part of the contract. 12. In fact, in a recent judgment in the case of Motilal Jain v. Ramdasi Devi , 2000 AIR SCW 2554 , the Supreme Court held as follows : “That decision was relied upon by a three Judges Bench of this Court in Syed Dastagir’s case, 1999 AIR SCW 2959 : AIR 1999 SC 3029 , wherein it was held that in construing a plea in any pleading, Courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one’s case for a relief. It is pointed out that in India most of the pleas are drafted by counsel and hence they inevitably differ from one to the other; thus, to gather true spirit behind a plea it should be read as a whole and to test whether the plaintiff has performed his obligations, one has to see the pith and substance of the plea. It was observed, “Unless a statute specifically requires a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16 (c) of the Specific Relief Act, 1963 does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract.” So the compliance of “readiness and willingness” has to be in spirit and substance and not in letter and form.” It is thus clear that an averment of readiness and willingness in the plaint is not a mathematical formula which should only be in specific words. If the averments in the plaint as a whole do clearly indicate the readiness and willingness of the plaintiff to fulfil his part of the obligations under the contract which is subject matter of the suit, the fact that they are differently worded will not militate against the readiness and willingness of the plaintiff in a suit of specific performance of contract for sale.” 13. Basing upon the above principle, it is needless to say that it is not necessary for the plaintiff to plead the readiness and willingness in unequivocal terms in the plaint. However, if the reading of the plaint and conduct of the plaintiff leads to an inference that he was ready and willing to perform his part of the contract, then, the Court can take into consideration of such conduct with regard to the readiness and willingness on the part of the plaintiff. 14. Even though such argument has been advanced, in the memorandum of grounds of appeal filed before us in this letters patent appeal, the only question urged is that there is no privity of contract between the plaintiff and the defendant and as such, the agreement is not enforceable by the plaintiff. Since the learned senior counsel advanced the argument with regard to the readiness and willingness on the part of the plaintiff, we are forced to discuss the same in the earlier paragraph. 15. Now, coming to the question of privity of contract, admittedly, the agreement holder the said Subramaniam is the son of the plaintiff Natesa Pillai. When once the agreement holder dies, naturally, his rights would pass on to his legal representatives. The father being one of the legal representatives, he filed the suit for specific performance. If the defendant wants to raise any plea with regard to the maintainability of the suit by the plaintiff as the legal representative of the deceased agreement holder, then, it is for her to deny the right of the plaintiff to file the suit. When no such objection has been raised with regard to the maintainability of the suit by the plaintiff as the legal representative of the deceased son, it is too late to plead that there is no privity of contract between the plaintiff and the defendant. When no such objection has been raised with regard to the maintainability of the suit by the plaintiff as the legal representative of the deceased son, it is too late to plead that there is no privity of contract between the plaintiff and the defendant. When the right of the defendant being passed on to the legal representatives, there is no need for the legal representatives to have the privity of contract with the executant of the agreement to enforce the specific performance. By virtue of inheritance-, such right would devolve on the legal representatives of the deceased agreement holder, which is not disputed in the written statement. 16. It is the further contention of the learned senior counsel that when class-1 heirs are available, it is not open to class-2 heirs of the deceased agreement holder to file the suit. 17. It is a matter between the legal heirs of the deceased agreement holder. In the absence of any specific plea in the written statement with regard to the maintainability of the suit by the father as the legal representative of the deceased agreement holder, the relationship being undisputed, it is not open to the learned senior counsel for the appellants to advance such an argument at this stage or to plead the want of privity of contract between the parties. Hence, the contention of the learned Senior Counsel for the appellants cannot be countenanced. 18. Section 15 of the Specific Relief Act is specific that the rights of the agreement holder will automatically pass on to the successor in interest, in case of death of the agreement holder. If the arguments of the learned Senior Counsel for the appellants are to be accepted, then, there is no need for the defendant to refund the advance amount, which was received under, the suit agreement, because such suit will be barred for want of privity of contract and it will amount to unlawful enrichment by the defendant, especially when there is no plea with regard to the maintainability of the suit by the father pursuant to the death of his son - the agreement holder. Hence, We do not find any illegality in the findings of the trial Judge as well as the learned Single Judge in granting the decree for specific performance. 19. Hence, the letters patent appeal is dismissed.