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2004 DIGILAW 1215 (PNJ)

Swaran Singh (Died) Through Lrs. v. Dalip Kaur

2004-11-02

NIRMAL SINGH

body2004
Judgment Nirmal Singh, J. 1. The appellant fled a suit for specific performance on the allegations that defendant Nos. 1 and 2 and one Sardara Singh agreed to sell land measuring 14 kanals 9 marlas situated in village Makandpur vide agreement dated 7.10.1969 for an amount of Rs. 3,000/- out of which Rs. 2,400/- were paid as earnest money. Sale was to be effected after getting the permission to sell the land on behalf of the minors. However, the possession was delivered to the plaintiff. The defendants were issued notices dated 20.11.1975, 29.12.1978 and 27.1.1979 for execution of the sale deed but they did not execute it. However they received Rs. 400/- by money order. It was further case of the plaintiff that the minors have became major, therefore, they can execute the sale deed. As the defendants failed to execute the sale deed, hence, the suit was filed. Defendant Nos. 1 to 5 contested the suit and controverted the allegations. It was denied that they had executed any agreement but it was pleaded that they were not owner of the suit land therefore they could not sell the suit land. It was also denied that they had made any promise to get permission from the court for selling the share of the minors and then to execute the sale deed. They also denied the delivery of the possession to the plaintiff. They also pleaded that defendant Nos. 6 to 8 were in possession as vendees. 2. On the pleadings of the parties, the learned trial Court framed a number of issues and after recording the evidence, dismissed the suit. Aggrieved by which, the plaintiff preferred an appeal before the learned Addl. District Judge, Gurdaspur. The appeal was partly allowed and it was ordered that plaintiff was entitled to the refund of Rs. 2,800/-from defendant Nos. 1, 2 and 5. Aggrieved by the orders of the courts below, the present appeal has been preferred. 3. I have heard the learned counsel for the parties and perused the record. 4. This appeal is to be dismissed on the ground that in the plaint, there was no averment by the plaintiffs that they were ready and willing to perform their part of contract. In a suit for specific performance, the plaintiff has to plead that he was ready and willing to perform his part of contract and also prove the same. This appeal is to be dismissed on the ground that in the plaint, there was no averment by the plaintiffs that they were ready and willing to perform their part of contract. In a suit for specific performance, the plaintiff has to plead that he was ready and willing to perform his part of contract and also prove the same. Similar proposition has been considered by the Apex Court in Pukhraj D. Jain and Ors. v. G. Gopalakrishna, 2004(3) R.C.R. (Civil) 171 (SC) and it has been held as under:- "Section 16(c) of the Specific Relief Act lays down that specific performance of a contract cannot be enforced in favour of a person 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 which has been prevented or waived by the defendant. Explanation-11 to this sub-section provides that the plaintiff must aver performance of or readiness and willingness to perform the contract according to its true construction. The requirement of this provision is that plaintiff must aver that he has always been ready and willing to perform the additional terms of the contract. Therefore, not only there should be such an averment in the plaint but the surrounding circumstances must also indicate that the readiness and willingness continue from the date of the contract till the hearing of the suit." 5. Learned counsel for the appellants very fairly conceded that in the plaint there was no averment that plaintiffs were ready and willing to perform their part of contract but he tried to convince the court that from the surrounding circumstance it was proved that plaintiffs were ready and willing to perform their part of contract as they have issued notice dated 20.1.1975, 29.12.1978 and 27.1.1979. 6. I have considered this submission of the learned counsel for the appellant but find the same to be without any merit. In a suit for specific performance readiness and willingness is not to be seen from the surrounding circumstances. As per Section 16(c) of the Specific Relief Act it is mandatory that the plaintiff must aver that he was ready and willing to perform his part of the contract. In a suit for specific performance readiness and willingness is not to be seen from the surrounding circumstances. As per Section 16(c) of the Specific Relief Act it is mandatory that the plaintiff must aver that he was ready and willing to perform his part of the contract. If the requisite pleadings are not in the plaint, then the decree for specific performance cannot be granted. 7. There is another infirmity in the case of the plaintiff. Respondent Nos. 6 to 8 were minor at the time of the execution of the alleged contract. It is settled proposition of law that the agreement could not be enforced against the minors. 8. Mr. Gurjit Singh, learned counsel for the appellant submitted that appellant has made a statement before the lower court that appellant will not enforce the agreement qua the share of minors and will enforce the agreement qua the other respondents who were major. 9. I have considered this submission of learned counsel for the appellant. 10. A perusal of the agreement shows that share of the minor cannot be segregated as in the agreement it has not been mentioned that what were the Khasra Numbers owned by the minors as well as by the respondents, who were major at the time of execution of the agreement. Therefore, this agreement cannot be enforced as it cannot be segregated. The agreement executed is, thus, vague. It has not been mentioned in the agreement that on which date the sale deed was to be executed. Therefore, the courts below have rightly declined to pass a decree of specific performance. However, the learned lower appellate Court has rightly held that the respondents have received Rs. 2,800/- and the appellant-plaintiff is entitled to get back the refund of the said amount. In view of these findings, no ground is made out warranting interference by this Court in the well reasoned judgment of the learned Addl. District Judge. Hence, this appeal is dismissed.