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2008 DIGILAW 507 (ALL)

AHMAD HUSAIN v. GANESH SHANKER GUPTA

2008-03-03

O.P.SRIVASTAVA

body2008
O. P. SRIVASTAVA, J. The second appeal filed by the defen dant/appellants has come up before this Court under the following circum stances. 2. The plaintiff/respondent Ganesh Shanker had filed a suit for specific performance of contract for sale against Mohammad Husain (deceased) prede cessor in interest of appellants No. 3 to 6 and Ahmad Husain appellant No. 1 in respect of the property describe in para 1 of the plaint for consideration of Rs. 22,000/- on 26. 6. 1981 after receiving Rs. 500/- as earnest money with the stipu lation that sale deed would be executed within three months in favour of plaintiff respondent. However, inspite of plaintiff respondent being willing and ready to get the sale deed executed after performing part of contract, the defendants failed to execute the sale deed, hence there arose necessary of suit. During pendency of the case Smt. Jaibunnisa wife of Gulam Husain was also impleaded as party in the case. 3. The suit was contested by defendants who did not dispute the execution of registered agreement but it was pleaded that agreement was got executed by fraud. 4. As regards the plea of readiness and willingness of the plaintiff there was no specific denial from the side of the defendants No. 1 and 2. It was only defendant No. 3 who was not a party to the contract, denied this plea. 5. The relevant issues were framed on the basis of pleadings of the party. 6. Upon consideration of the evidence adduced by the parties, learned Trial Court recorded its findings on all the issues in favour of the plain tiff/respondent. However, while decreeing the suit, exercising its discretion under section 20 of the Specific Relief Act, it did not pass decree for specific performance of agreement for sale but directed only the refund of the earnest money paid to the defendant No. 1 and 2. 7. The plaintiff being aggrieved of the said judgment and decree preferred First Appeal before the learned District Judge which came up for hearing be fore learned VIIIth Additional District Judge who allowed the appeal and de creed the suit for specific performance of the agreement by means of the judg ment and decree dated 22. 11. 2000. 8. It is against the said judgment and decree of the learned first Appellate Court, the defendants have come up before this Court in second ap peal. 9. 11. 2000. 8. It is against the said judgment and decree of the learned first Appellate Court, the defendants have come up before this Court in second ap peal. 9. The appeal was admitted on several substantial questions of law. 4 However, during the course of argument Sri Mohd. Saeed appearing on behalf of the appellants pressed only two substantial questions of law before this Court for consideration in this second appeal. Firstly, that the learned Appellate Court failed to record any findings regarding plaintiffs readiness and willingness in performance of his part for the execution of the agreement for sale and Secondly without considering the matter under section 20 of the Specific Relief Act decreed the suit for specific performance as against the judgment and decree of the learned Trial Court for refund of the earnest money alone. 10. Sri Subhash Vidyarthi, learned Counsel for the respondent submitted that substantial question of law on the readiness and willingness does not arises as in the written statement the defendants have not denied the plaintiffs plea regarding his being ready and willing throughout to get the sale deed executed by performing his part and it was because of this reason, no issue was framed. He cited the judgment of Honble Supreme Court also in Mst. Sugani v. Kameshwar Das and another, 2006 (63) ALR 772 (SC)=2006 (42) AIC 926. 11. On the other point the contention raised on behalf of the respondent is that the case of the appellants did not fall within the meaning of section 16 of the Specific Relief Act for exercise of the discretion in his favour. 12. On the other hand, the learned Counsel for the appellants relying on the judgment of the Honble Supreme Court in Umabai and another v. Nilkanth Dhondiba Chavan, 2005 (60) ALR 463 (SC)=2005 (30) AIC 530 and N. P. Thirugnanam v. Dr. R. Jagan Mohan Rao, (1995) 5 SCC 115 and Ramavadh v. Achhaibar Dubey, 2000 (38) ALR 651 (SC) submitted, that it is necessary in a suit for specific performance of contract for sale that while decreeing the suit for spe cific performance of contract, Court has to go into the question and record spe cific finding whether the plaintiff had been ready and willing to perform his part. As regards the other point, it is submitted that since the discretion has been exercised by the learned Trial Court in favour of the defendants, the same ought to have been considered by the learned First Appellate Court before de creeing the suit for specific performance instead of for refund of money. 13. I have considered the arguments of learned Counsel for the parties and have given careful consideration to the arguments submitted on either side and have also gone through the judgments relied upon by the parties. 14. Section 16 of the Specific Relief Act, provides that contract cannot be enforced in favour of a person who fails to aver and prove that he has per formed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than the terms of the per formance which has been prevented or waived by the defendant. For proper appreciation, the relevant portion of section 16 of the Specific Relief Act, 1963 is extracted here below : "16. Personal bars to relief-Specific performance of a contract cannot be enforced in favour of a person- (b ). . . . . . . . . . . . . . . . . . . . . . . . (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. " 15. From the above, it is clear that it is a statutory requirement for specific performance of the contract that party should not only aver but prove also that he has performed or has been ready and willing to perform the essential terms of the contract which are to be performed by him. " 15. From the above, it is clear that it is a statutory requirement for specific performance of the contract that party should not only aver but prove also that he has performed or has been ready and willing to perform the essential terms of the contract which are to be performed by him. In view of the above statutory requirements, there cannot be any dispute that before decreeing the suit for specific performance, even if no issue was framed by the Trial Court on this point, the Court should go into the question whether there is averment in the plaint and the same is proved also to show that plaintiff has performed or has been always ready and willing to perform the essential terms of the contract which are to be performed by him. So far as the absence of denial by other party is concerned, it can meet out the first part of the requirement of the provi sion that plaintiff must aver but averment alone is not sufficient. The provision requires the party praying for specific performance not only to aver but to prove also by evidence. Therefore, if no specific issue was framed on that point, yet for the purpose of examination whether the plaintiff has proved or not the averment made in the plaint. For determination of this question Court has to examine the evidence. 16. The submission of learned Counsel for the appellant that there was no issue and, therefore, this question need not be gone into, in my opinion, cannot be accepted for the reason that averment in the plaint is not sufficient to meet out the statutory requirement under section 16 of the Specific Relief Act. Proof of the same is also required by section 16. 17. In view of the above, in my opinion, it was essential for the Appellate Court that while decreeing the suit for specific performance it ought to have examined the evidence also and record categorical findings whether there was evidence on record to meet out the requirement of section 16 of the Specific Relief Act. Non consideration of this question on basis of the evidence adduced, if any, is clearly an error committed by the learned First Appellate Court in view of the section 16 of the Specific Relief Act. Non consideration of this question on basis of the evidence adduced, if any, is clearly an error committed by the learned First Appellate Court in view of the section 16 of the Specific Relief Act. No examining of the matter in view of the statutory provision gives rise to a substantial question of law to be considered and dealt with in the second appeal. 18. Therefore, the learned First Appellate Court committed error in law in decreeing the suit for specific performance without examining the matter and recording categorical findings whether requirements of section 16 of the Specific Relief Act were fulfilled in the case or not. 19. So far as the second point is concerned, section 20 grants power to the Court to exercise discretion not to grant decree for specific performance of con tract and exercising the discretion for reasons recorded the learned Trial Court instead of granting decree for specific performance, decreed the suit only for re fund of the earnest money. No doubt, the discretion of the Court is never arbi trary and it is to be exercised in light of certain legal principles and in the in stant case, the learned Trial Court had exercised discretion under section 20 for not granting decree for specific performance giving reasons for that. The learned First Appellate Court should have examined the matter and considered the reasons recorded by the learned Trial Court before decreeing the suit for specific performance. Without applying its mind to the reason given by the learned Trial Court, decreeing of the suit against the discretion exercised by the Trial Court, the learned First Appellate Court committed error in law. 20. In view of the above, the matter deserves to be sent back to the learned First Appellate Court to decide the appeal afresh without being influenced by any of the observations made hereinabove. 21. The appeal is therefore allowed. Judgment and decree of learned First Appellate Court is hereby set aside and matter is sent back for deciding the first appeal in light of the observations of this judgment. 22. 21. The appeal is therefore allowed. Judgment and decree of learned First Appellate Court is hereby set aside and matter is sent back for deciding the first appeal in light of the observations of this judgment. 22. Since, it is a very old matter, the learned District Judge, Unnao will en sure the disposal of first appeal positively within a period of three months from the date of production of certified copy of this order either by himself or by any other Court of competent jurisdiction to which the learned District Judge can make over the case for disposal. 23. Parties shall appear before the learned District Judge, Unnao on 2nd April, 2008. 24. The Registry will ensure the communication of this order and remit tance of the record to the Court of learned District Judge so as to reach before 2nd April, 2008. Appeal Allowed. .