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2006 DIGILAW 1009 (ALL)

DURGA PRASAD GAUR v. RAM MURAT RAM VISHW

2006-04-13

PRAKASH KRISHNA

body2006
PRAKASH KRISHNA, J. This is defendants appeal. The plaintiff filed suit No. 364 of 1998 for specific performance of contract to sell dated 19th February, 1996 on the allegations that a sum of Rs. 20,000/-was given before the Sub Registrar at the time of registration of the agreement in question. On subsequent dates i. e. 27th January, 1997, 21st March, 1997 and 30. 6. 1997. Rs. 54,000/- was further given. The defendant failed to execute the sale deed in pursuance of the aforesaid agreement. The defence of the defendant was that the said agreement was obtained by playing fraud and the defendant wanted to give the property in question on rent and in consideration thereof a sum of Rs. 30,000/-was received by way of cash. It was further stated that the plaintiff agreed to pay Rs. 500/- per month as rent. 2. The suit has been partly decreed by both the Courts below by granting relief for specific performance of the aforesaid contract, dated 19th February, 1996. The Trial Court has believed the payment of Rs. 30,000/- as earnest money. It has not believed the further payments as state by the plaintiff. Aggrieved against the aforesaid judgment of the two Courts below the present appeal has been filed. 3. Learned Counsel for the appellant has pressed the following questions of law to be involved in the present appeal. (1) Whether the judgment and decree passed by the Court below stands vitiated on account of non framing of most relevant issue regarding readiness and willingness. (2) Whether the plaintiff has got any cause of action for filing the suit and the plaint is liable to be rejected under Order VII Rule 11 C. P. C. (3) Whether for want of any issue on finding with regard to service of notice for eviction of sale deed, suit for specific performance can be decreed. Heard learned Counsel for the parties. 4. Learned Counsel for the appellant in support of the appeal submitted that there is no finding of readiness and willingness on the part of the plaintiff to execute his part of the contract and it was mandatory for the Courts below to record the aforesaid finding before decreeing the suit in view of section 16 (C) of the Specific Relief Act. Reliance has been placed by him on the judgment of the Apex Court in Bal-ram Taneja and others v. Sunil Madan and another, (1999) 8 SCC 396 wherein the Apex Court has observed that in a suit for specific performance of contract it is mandatory requirement by section 16 (c) of the Specific Relief Act to plead readiness and willingness of the plaintiff to perform his part of contract. Acting under Order VIII Rule 10 of the C. P. C. the facts set out in the plaint to find out whether all the requirements specially those enacted in section 16 of the Specific Relief Act have been complied or not. The readiness and willingness of the plaintiff to perform his part of the contract is condition precedent to pass decree of the specific performance in favour of the plaintiff. 5. It is not case of the defendant/ appellant that there is no such pleading in the plaint with regard to readiness and willingness of the plaintiff to perform his part of contract. What has been urged before this Court is that it was the duty of the Court to record a finding irrespective of the fact that such plea has been raised by the defendant in his pleading or not. The said argument is devoid of any substance and can not be accepted. On perusal of the copy of the written statement it is clear that no such plea was raised and put forth by the defendant in his written statement. From the record it does not appear that this issue was pressed at any stage by the defendant/appellant. There is no discussion in either of the judgments of the Courts below on this point. The plea of readiness and willingness is basically a pure question of law. It depends upon the facts of the case. In the absence of any pleading in the written statement, the averments made by the plaintiff in the plaint remained uncontroverted. Moreover, the agreement in question is dated 19th February, 1996 the suit was filed in the year 1998 and the possession of the shop was also delivered by the defendant as per the findings recorded by both the Courts below. Therefore, the aforesaid question as posed by the learned Counsel for the appellant is not substantial question of law involved in the present appeal. 6. No arguments were advanced on the question Nos. Therefore, the aforesaid question as posed by the learned Counsel for the appellant is not substantial question of law involved in the present appeal. 6. No arguments were advanced on the question Nos. 2 and 3. 7. Section 100 of Code of Civil Procedure was amended by section 37 of Act No. 104 of 1976 which came into effect from 1. 2. 1977. The amended code provides for a Second Appeal to the High Court, from every decree passed in appeal, by any Court subordinate to the Court, only if the High Court is satisfied that the case involves a substantial question of law. The memorandum of appeal under sub-section (3) is required to precisely state the substantial question of law involved in the appeal. The High Court under sub section (4), if satisfied that a substantial question of law is involved in the case, shall formulate the question. Further sub-section (5) mandates that the appeal shall be heard on the question so formulated, and the respondents shall at the hearing of the appeal be allowed to argue that the case does not involve such question. The proviso, however, reaffirms the powers of the Court, to hear, for reasons to be recorded the appeal on any other substantial question of law not formulated by it, if it is satisfied, that the case involves such question. The High Court, however, must record reasons for formulating such question at the stage of hearing. 8. In Govindaraju v. Mariamman, 2005 (98) RD 731 (SC) = 2005 (28) AIC 628 the Supreme Court held that the substantial question of law is sine qua non for exercise of jurisdiction under section 100 of the CPC and relied upon the judgments in Kshitish Chandra Purkait v. Santosh Kumar Pwkait, (1997) 5 SCC 438 Panchugopal Barua v. Umesh Chandra Goswanri, (1997) 4 SCC 713 Kondiba Dagadu Kadam v. Savitribai Sapan Gujar 1999 (36)ALR 218 (SC) and traced out the background and reasons for adding such on restriction in section 100 CPC. It referred to Santosh Hazari v. Purnshottam Tiwari, 2001 (42) ALR 794 (SC) in which the purpose which necessitated and persuaded the Law Commission of India to recommend for the amendment of section 100 was referred, to and the meaning of substantial question of law is explained as follows : " 14. It referred to Santosh Hazari v. Purnshottam Tiwari, 2001 (42) ALR 794 (SC) in which the purpose which necessitated and persuaded the Law Commission of India to recommend for the amendment of section 100 was referred, to and the meaning of substantial question of law is explained as follows : " 14. As to which would constitute a substantial question of law, it was observed: (SCC pp. 187-88, para 14) "14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by Court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. " 9. The judgment was followed in Thiagrajan v. Shri Venugopalaswamy B. Coil. 2004 (17) AIC 134 = 2004 (55) ALR 22 (Sum.) = (2004) 5 SCC 762 In Phool Pittta v. Vishwanath Singh, 2005 (99) RD 477 (SC) = 2005 (33) AIC 749 (SC) the Supreme Court held that the High Court, could have heard the second appeal on any question not formulated by it only after formulating such question, for reasons to be recorded, and not otherwise. 10. 10. I have gone through the judgments of the first Appellate Court and do not find that the question of law formulated at the admission stage is a substantial question of law, which is not previously settled or is debatable. The Courts below have appreciated the evidence based upon pleadings and have correctly applied law to the issues framed by it. The judgment is sound and does not admit any error of law or misreading of evidence. 11. In view of the above discussion, there is no merit in the appeal and it is dismissed summarily. Appeal Dismissed. .