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2004 DIGILAW 1817 (ALL)

Kamla v. Lachhman

2004-09-14

UMESHWAR PANDEY

body2004
JUDGMENT Umeshwar Pandey, J.—This second appeal is on behalf of the defendant Nos. 2 and 3 namely Kamla and Kunwar Sain, who resisted a suit filed by the present respondent Nos. 1 and 2 for relief of specific performance of contract dated 21.12.1966 for sale of nine agricultural plots with a total area of 5.30 acres in district Mathura. In addition to the present appellants-defendants the executant of the agreement in question namely Ninua was impleaded as defendant No. 1 in the suit. Another subsequent purchaser of the property in question, namely Smt. Ram Dulari was arrayed as defendant No. 4 in the suit. It was pleaded by the plaintiffs that defendant No. 1 negotiated the sale of the disputed plots with the plaintiffs for a total consideration of Rs. 10,000 out of which he received a sum of Rs. 7,000 as earnest money on the date of execution of the agreement and he gave possession of the said agricultural plots on that date itself. The defendant No. 1 Ninua subsequent to the said agreement deposited ten times revenue of the plots with the authorities concerned. But he in collusion with the appellants-defendants No. 2 and 3 and also the defendant No. 4 negotiated a deal of transfer of those plots in their favour. Having got the information of this development, the plaintiffs approached the appellant-defendant Nos. 2 and 3 and tried his best to dissuade them from purchasing the plots by giving them due information that a prior agreement of sale had already been obtained by them from the owner (Ninua) and its possession has also been taken over by them. The plaintiffs also approached the defendant Nos. 1, 2 and 3 and warned them against execution of the sale deed even at the Sub-Registrar’s Office where Ninua and other defendants were present for executing of the sale documents in favour of defendant Nos. 2 and 3. All these efforts of plaintiffs proved of no avail and out of nine plots in question, seven plots were illegally transferred by Ninua in favour of the appellant-defendant Nos. 2 and 3. Later on, the defendant No. 4 who is respondent No. 4 in this appeal also illegally obtained a sale deed of the remaining two plots in question from Ninua on 18.4.1968. 2. 2 and 3. Later on, the defendant No. 4 who is respondent No. 4 in this appeal also illegally obtained a sale deed of the remaining two plots in question from Ninua on 18.4.1968. 2. The plaintiffs also claim that they had always been ready and willing to perform their part of the agreement in question towards the execution of the sale deed. But when they found no recourse open to them except to file a suit before the competent court of law, they preferred this Suit No. 76 of 1968 in court of Civil Judge, Mathura, where it was resisted by defendant No. 1 Ninua who filed his written statement whereas the defendants Nos. 2 and 3 together filed a common written statement and on behalf of the defendant No. 4 another written statement was filed before the trial court. 3. After full trial of the suit, the learned civil Judge vide judgment and decree dated 27.4.1971, decreed the suit and granted the relief for specific performance of contract in favour of the plaintiffs. This judgment however, was appealed against by the two sets of the defendants by filing separate appeals in the court of District Judge, Mathura, being Civil Appeal No. 137 of 1971 and 36 of 1972, which were finally decided by the 1st Addl. District Judge, Mathura vide judgment and decree dated May 11, 1977. Both the appeals were dismissed and the judgment and decree passed by the trial court were affirmed. 4. The courts below taking into the entire aspect of the matter as demonstrated in the pleadings of the parties and in the evidence adduced by them have given concurrent findings that the appellant-defendant Nos. 2 and 3 and respondent-defendant No. 4 are though the purchasers of the plots in question but they are not bona fide purchasers having sufficient notice of the previous agreement in question executed by their vendor defendant No. 1 in respect of the same plots in favour of the plaintiffs. They ventured to purchase the property and they could not be given any benefit of such purchase, which is not at all a bona fide one. The Courts have also held that the defendant No. 1-Ninua had executed the agreement in question, which was a valid document conferring due legal rights for getting its specific performance done in their favour. They ventured to purchase the property and they could not be given any benefit of such purchase, which is not at all a bona fide one. The Courts have also held that the defendant No. 1-Ninua had executed the agreement in question, which was a valid document conferring due legal rights for getting its specific performance done in their favour. Accordingly, finding favour with the contentions of the plaintiffs, the suit for specific performance was decreed from both the courts below. These Courts however, appear to have not given due recognition to the legal aspect of the matter as envisaged under Section 16 (c) of the Specific Relief Act, 1963 (for short the ‘Act’) imposing a mandatory obligation upon the plaintiffs to aver and prove their willingness to perform their part of contract before and after filing of the suit and also before the decree was passed. No discussion or finding has been recorded on this point in the judgment of both the courts below. 5. Therefore, aggrieved with the aforesaid judgment of the lower appellate court, the defendant Nos. 2 and 3 have come up in this second appeal under Section 100 of the Code of Civil Procedure (for short ‘C.P.C.’) 6. I have heard Sri S. N. Singh, learned counsel for the appellants and Dr. (Ms.) Madhu Tandon holding brief of Sri G. N. Verma, learned counsel representing the plaintiffs-respondents and have gone through the entire materials available on record. The original records of the lower court have also been perused. 7. In the grounds of this appeal following substantial questions of law have been formulated and approved : (1) Whether the courts below have erred in the law in not giving any finding on the question of willingness and readiness of the plaintiff to perform his part of contract, which is a statutory requirement under the Specific Relief Act? (2) Whether the courts below have erred in law in not framing an issue on the question of willingness and readiness of the plaintiff to perform his part of the contract? 8. The counsel for the parties have addressed this Court only on these questions and no other point was raised before it at the time of hearing. 9. (2) Whether the courts below have erred in law in not framing an issue on the question of willingness and readiness of the plaintiff to perform his part of the contract? 8. The counsel for the parties have addressed this Court only on these questions and no other point was raised before it at the time of hearing. 9. The trial Judge in the present case framed several issues but has however, failed to frame an issue upon the pleadings as contained in para 14 of the plaint, which states about the plaintiffs’ continuous readiness and willingness to perform his part of the contract which has been denied (not specifically) in para 14 of the written statement filed by the defendant No. 1-Ninua. The learned counsel for the appellants has given much emphasis that by virtue of Section 16 (c) of the Act, a mandatory obligation is imposed upon the plaintiff seeking a decree of specific performance before the Court to aver and prove that he has performed or has always been ready and willing to perform the essential term of the contract which still remains to be performed by him. In case of failure to aver and prove the aforesaid facts, the plaintiff has to be deemed as disentitled to enforce such contract through a decree of court. It is the duty of the court, therefore, to find out even if the other party resisting the suit is not raising any objection relating to the said fact or even admitting to such claim of plaintiff disclosed by him in the pleadings. Learned counsel for the appellants has further clarified his view point that in fact, the provision of Section 16 (c) of the Act not only imposes an obligation upon the plaintiff to comply with it in letter and spirit but it also imposes an obligation upon the court to find out if the plaintiff has actually succeeded to discharge his responsibility in this regard. For that purpose, the Court has to record findings in that context, which in the present case, both the courts below have ignored thus committing patent illegality while decreeing the suit for specific performance. 10. For that purpose, the Court has to record findings in that context, which in the present case, both the courts below have ignored thus committing patent illegality while decreeing the suit for specific performance. 10. Earlier before coming into force of the Act (Specific Relief Act, 1963), there was no statutory requirement for the plaintiff in a suit for specific performance to plead and prove his readiness and willingness to perform his part of the contract but this was definitely a rule of equity for the plaintiff to show his readiness and willingness to carry out his part within the contract before and even after the filing of the suit for specific performance. This was based on the principle that if one seeks equity, he must be ready to do equity. The Specific Relief Act, 1887, did not provide for a statutory requirement in this regard as has been contemplated under Section 16 (c) of the new Act, 1963. 11. It would be material to reproduce the exact provision of Section 16 (c) of the Act which is as below : “Specific terms of a contract cannot be enforced in favour of a person : (c) ................. 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.” 12. It is obvious from the aforesaid provision that it postulates a mandatory requirement for the plaintiff to aver and prove his readiness and willingness to perform his part of the contract and the language of the provisions is quite clear and unambiguous. 13. The position is crystalised by the very reading of the provision that unless the plaintiff establishes to the satisfaction of the Court that he has fulfilled all requirements of the Clause (c) of Section 16, the Court will not be able to grant the decree for specific performance of the contract in his favour. Even the absence of party resisting the suit for such relief of specific performance, does not exonerate the plaintiff from his liability to plead and prove his readiness and willingness to perform his part of the contract before the Court. 14. Even the absence of party resisting the suit for such relief of specific performance, does not exonerate the plaintiff from his liability to plead and prove his readiness and willingness to perform his part of the contract before the Court. 14. It has been noticed above that pleadings to this effect have come in para 14 of the plaint and have also not gone unchallenged. Para 14 of the written statement of the executant of the agreement in question (Ninua-defendant No. 1) in clear terms states that the pleadings in para 14 of the plaint are not admitted. The other defendants who include the present appellants also did not admit the contentions of para 14 of the plaint. Therefore, in the nature of the pleadings of the parties at hand, the trial court was bound to focus its attention also to the pleadings as contained in para 14 of the plaint as well as para 14 of the written statement filed by the defendant No. 1. But when I look into the records of the case, I find that the trial court has framed only five issues, which do not include an issue based on such pleadings. 15. Learned counsel for the respondents has tried to emphasise that the framing of an issue may not become mandatory if the parties at the relevant stage have not pressed and pointed out to the Court for casting such issue for one or the other reasons. But I do not agree with this point of argument of the learned counsel because framing of an issue on a pleading taken in compliance to the provision of Section 16 (c) of the Act, cannot be equated with those pleadings which can be lightly waived by the parties or their counsels at the trial or appellate stage. 16. As I find none of the issues framed by the trial court relate to the question of compliance of the requirement of Clause (c) of Section 16 of the Act. 16. As I find none of the issues framed by the trial court relate to the question of compliance of the requirement of Clause (c) of Section 16 of the Act. It may be true that on the date when the issues were framed in the case, the parties might have not pressed for the framing of any more issue, yet, the said fact could not be considered sufficient to relieve the trial court from its obligation of framing an issue and going into the question as to whether the plaintiffs satisfy the Court with the mandatory condition of law of proving that they are ready and willing to perform their part of the contract. In this case, the trial court, however, did not advert to this aspect of the matter at all nor did the lower appellate court. In Suraj Singh and another v. Sohan Lal and others, AIR 1981 All 330 , it has been propounded that in order to find out that the plaintiff had complied with the mandatory requirement of Section 16 (c) of the Act, it is necessary for the trial court or the 1st appellate court to record a clear finding in that regard in its judgment. In the case of Mahmood Khan and another v. Ayub Khan and others, AIR 1978 All 463 , the Division Bench of this Court, while discussing the implication of Section 16 (c) of the Act, has observed that the mandate of the statute required that the plaintiff must aver in the plaint and must give proof of the fact that he was and has been ready and willing to perform his part of the contract. Even if the defendants were absent and did not take part in the proceeding, it was the duty of the plaintiff to make the necessary averment as required under Section 16 (c) of the Act and to give proof of the same. 17. Order VIII, Rule 5 (1) of the C.P.C. in its proviso postulates that the Court may in its discretion require any fact so admitted to be proved otherwise than by an admission. 17. Order VIII, Rule 5 (1) of the C.P.C. in its proviso postulates that the Court may in its discretion require any fact so admitted to be proved otherwise than by an admission. The implication of this proviso attached to Order VIII, Rule 1, C.P.C. is that the Court when made obliged under law to find out some factual situation in a case to be necessary for passing a decree in the suit, it has to necessarily apply its discretion to require that fact to be proved even though it is admitted. Thus, the mandate of Section 16 (c) of the Act read with Order VIII, Rule 5 of the C.P.C., is that if the defendant does not deny the pleading of readiness and willingness taken by the plaintiff, the averment though would be deemed to have been admitted, still the Court has to require the averment to be proved otherwise than by admission. In the present case, the fact situation is otherwise. The pleadings of para 14 of the plaint have been traversed in para 14 of the written statement of Ninua, the defendant No. 1. Thus, the plea having been traversed, the Court was bound to frame an issue. The Court was also required to give finding upon the point but no issue was framed nor any finding on the question has been recorded. In Smt. Ram Dhani and others v. Nek Ram Singh and others, 2002 (1) AWC 218 : 2001 (92) RD 861, the learned single Judge of this Court in para 20 of the judgment has held that such requirement having been held to be mandatory, a specific issue and finding upon the point of readiness and willingness is a legal necessity. 18. As observed above, the pleadings of para 14 of the plaint were traversed in the written statement. Hence, the issue had become all the more contentious and for that purpose, specific findings in that regard have to be there in the judgments of the courts below. The findings are required to be recorded after thorough assessment of the evidence of the parties. 19. Hence, the issue had become all the more contentious and for that purpose, specific findings in that regard have to be there in the judgments of the courts below. The findings are required to be recorded after thorough assessment of the evidence of the parties. 19. The learned counsel for the appellants has also relied upon the case law of Manjunath Anandappa alias Shivappa Hanasi v. Tammanasa and others, 2003 (94) RD 742 (SC) ; Har Pratap Singh and another v. Satya Narain Misra and another, AIR 1980 All 52 ; Ram Awadh (dead) by L.Rs. and others v. Achhaibar Dubey and another, 2000 (2) AWC 929 (SC) : AIR 2000 SC 860 and Shamsher Bahadur Sinha and another v. Raghu Nath Prasad Saxena, 1982 ACJ 353, wherein the significance of obligation of the Court and the plaintiff as contemplated in Section 16 (c) of the Act, has been highlighted. In the case of Ram Awadh (supra), a Bench of three Hon’ble Judges of the Supreme Court has gone to the extent of propounding that it is open to any defendant of a suit for specific performance of contract who is resisting it even on the ground of being a subsequent bona fide purchaser for valuable consideration without notice to take a plea that the requirement of Section 16 (c) of the Act has not been complied with and it is for the Court to determine whether it has or has not been complied with and, depending upon its conclusion, to decree or to dismiss the suit. 20. Learned counsel appearing for the respondents-plaintiffs has tried to emphasise and highlight the fact that the plea taken in para 14 of the plaint in compliance of the provisions of Section 16 (c) of the Act, since not specifically denied in the written statement, there should be no issue on the point and it was rightly not framed by the Court nor there was any occasion or legal necessity for the courts below to record a finding thereon. He has also strenuously urged that the ordinary rule is that a decree for specific performance should be granted and should not be denied without equitable consideration of the points for its refusal. He has also strenuously urged that the ordinary rule is that a decree for specific performance should be granted and should not be denied without equitable consideration of the points for its refusal. In support of her submissions, she has cited several case laws which are as below : (1) Jugraj Singh and another v. Labh Singh and others, AIR 1995 SC 945 , (2) Lala Kalyan Das and others v. Sheik Maqbul Ahmad and others, AIR 1918 PC 53, (3) Prakash Chandra v. Angad Lal and others, AIR 1979 SC 1241 , (4) Smt. Chander Kali Bail and others v. Jagdish Singh Thakur and another, AIR 1977 SC 2262 , (5) Chandra Pal Singh and others v. Prahlad Singh and others, 2002 (4) AWC 2681 : 2002 ACJ 1243, (6) Babu Ram v. Indra Pal Singh (dead) by L.Rs., 1998 (4) AWC 864 (SC) : 1998 ACJ 1565, and (7) Moti Lal Jain v. Smt. Ramdasi Devi and others, AIR 2000 SC 2408 . 21. There could no denial to the submission of the learned counsel that a decree for specific performance should be granted as rule but in such a situation where the law disentitles the plaintiff for the decree for want of compliance of a mandatory legal requirement contemplated under a statute, there could be no escape for this Court from a conclusion that the judgment and decree passed by the lower appellate court should be set aside for the purpose of remanding the matter for a decision of an additional issue which is to be necessarily framed under a legal obligation imposed by the statute and to record fresh findings on the issues which shall include this additional issue also. 22. I am therefore, of the opinion that the judgment and decree of the lower appellate court are liable to be set aside and the matter is to be sent back for reconsideration in accordance with law. 23. The appeal is, therefore, allowed and the judgment and decree dated 11.5.1977, passed by the lower appellate court are set aside. 22. I am therefore, of the opinion that the judgment and decree of the lower appellate court are liable to be set aside and the matter is to be sent back for reconsideration in accordance with law. 23. The appeal is, therefore, allowed and the judgment and decree dated 11.5.1977, passed by the lower appellate court are set aside. The case is remanded to the lower appellate court for a fresh decision in the case in respect of an issue namely, whether the plaintiffs have proved in terms of Section 16 (c) of the Specific Relief Act, 1963, that they are ready and willing to perform the essential terms of the contract which are required to be performed by them under the agreement dated 21.12.1966 or not? The cost of this appeal shall abide by the ultimate result of the suit. The lower appellate court shall however, be at liberty to afford an opportunity to the parties to lead evidence oral and documentary, if they so desire, on this additional issue only and then proceed to decide the entire case in accordance with law within a period of six months from the date of receipt of original records and a certified copy of this judgment. The office shall immediately transmit the original record of the courts below through special messenger.