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Madhya Pradesh High Court · body

2009 DIGILAW 498 (MP)

Hidayatulla v. Liyakat

2009-04-16

P.K.JAISWAL

body2009
JUDGMENT 1. This appeal has been filed by the plaintiff against the judgment and decree dated 14.10.1999 passed by District Judge, Bhopal in Civil Suit No. 22-A/99 whereby suit of the plaintiff for specific performance of contract was dismissed. 2. The appellant entered into an agreement with the respondents-defendants on 17.12.1985 for purchase of house which consists of rooms and veranda situated at Jehangirabad, Bhopal for a consideration of Rs.40,000/-, Rs.10,000/- was paid on 17.12.1985 i.e. at the time of execution of the agreement and Rs.4,000/- was paid on 1.6.1986. The respondents despite the agreement did not execute the sale deed and, therefore, the suit was filed on 13.10.1988. 3. The respondents filed their written statement and denied the claim of the appellant on the ground that as per agreement dated 17.12.1985, the appellant was to pay Rs.40,000/- but he had paid Rs.14,000/- only and in spite of notice (Ex. P-4) dated 21.9.1987 did not execute the sale deed nor he completed all the formalities as per terms and conditions of the agreement. It has been further contended that as per terms and conditions of the agreement, he has to vacate one room and hand over the vacant possession to the, respondents. He will also construct a wall and independent way for his use as per clause (1) of the agreement. As per clause (2) he has to pay a sum of Rs.5,000/- within a period of two months from the date of agreement but he failed to pay the said amount. As per clause (3) he had to execute the sale deed within a period of one year i.e. on or before 16.12.1986 and after expiry of same, the amount of earnest money will be forfeited and the agreement dated 17.12.1985 shall come to an end. 4. It is not in dispute that agreement for sale is of 17.12.1985 but the same was signed by the parties on 18.12.1985. It is also not in dispute that as per clause (2) of the agreement, amount of Rs.5,000/- was not paid on or before February, 1986. Vide Ex. P-3 on 1.6.1986 a sum of Rs.4,000/- was paid by the appellant. The appellant also failed to pay the rest of the amount within a period of one year from the date of the agreement. Vide Ex. P-3 on 1.6.1986 a sum of Rs.4,000/- was paid by the appellant. The appellant also failed to pay the rest of the amount within a period of one year from the date of the agreement. 5.Kifayatullah (PW 1) has deposed that as per terms of the agreement, the defendants have not constructed a wall nor they initiated the said construction of wall and door as per map (Ex. P-l) and, therefore, sale deed could not be executed. The respondent No.1 Liyakat Sheikh (DW 1) in his statement very categorically disputed the map (Ex. P-6) and has deposed that this is not the same map which was signed along with the agreement on 17.12.1985. Ex. P-6 is not signed by him and he had not done any work as per map (Ex. P-6). This witness further deposed that appellant failed to pay amount in time nor he paid the remaining amount of Rs.40,000/-, nor he acted as per terms and conditions of the agreement (Ex. P-2), nor he executed the sale deed. After expiry of 17.12.1986, respondents issued a notice dated 21.9.1987 (Ex. D-6/Ex. P-4) which was received by the plaintiff-appellant. Plaintiff-appellant replied the said notice on 29.9.1987 but failed to execute the sale deed nor he paid the balance amount in time. Liyaqat Sheikh (DW 1) has further deposed that he had filed a suit for ejectment against the appellant which was decreed vide (Ex. D-l) dated 31.10.1995. During the pendency of the suit, it was agreed between the parties that on payment of Rs. 50,000/- the appellant will vacate the suit premises. Vide Ex. D-7 a sum of Rs. 2,900/- was paid to the plaintiff and a sum of Rs. 10,000/- was paid vide Ex. D-9. On the basis of said agreement the appellant executed an agreement for sale of plot with Man Singh vide Ex. D-11 but since rest of the amount out of total amount of Rs. 50,000/- was not paid and, therefore, the agreement Ex. D-11 has been cancelled vide Ex. D-12. Ex. D-8 is a photocopy of receipt of Rs. 10,000/- dated 10.7.1993. Ex. D-10 is application under Order 26 Rule 3 CPC dated 5.7.1993. D-11 but since rest of the amount out of total amount of Rs. 50,000/- was not paid and, therefore, the agreement Ex. D-11 has been cancelled vide Ex. D-12. Ex. D-8 is a photocopy of receipt of Rs. 10,000/- dated 10.7.1993. Ex. D-10 is application under Order 26 Rule 3 CPC dated 5.7.1993. In view of this agreement, the contention of Liyaqat Sheikh (DW 1) appears to be correct that earlier agreement dated 17.12.1985 had come to an end and as per the new agreement the appellant did not vacate the suit premises on payment of Rs. 50,000/- to him. 6. As per para 5 of the plaint, there is no averment that appellant was ever ready and willing to purchase the suit property. As per section 16 (c) of the Specific Relief Act, 1963, the plaintiff must aver that he has performed or has always been ready and willing to perform his part of the contract. The apex Court in the case of Faquir Chand and another v.Sudes/z Kumari, (2006) 12 SCC 146 has held that language of section 16 (c) does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been ready and willing to perform his part of the contract. The apex Court has further held that plaintiff's readiness and willingness had to be in spirit and substance and not in letter and form. In the present case, as per the statement of Kifayatullah (PW 1) and para 15 of the plaint, continues willingness and readiness of the appellant-plaintiff was not evident from his conduct, he has not paid entire sale consideration as per agreement (Ex. P-2) nor he after receipt of the notice from the defendants on 31.9.1987 paid the balance amount and requested the defendants for execution of the sale deed. From the above pleadings and conduct of the appellant, it cannot be said that plaintiff was ever ready and willing to perform his part of contract. In view of the above, it is also well settled that under section 20 of the Specific Relief Act, 1963 the discretion exercised by the trial Court in favour of the respondents cannot be called for because after executing another agreement vide Ex. 0-8 the earlier agreement dated 17.12.1985 had come to an end. The appellant is a tenant of rented premises since the time of Nanhe Khan. 0-8 the earlier agreement dated 17.12.1985 had come to an end. The appellant is a tenant of rented premises since the time of Nanhe Khan. As per Ex. D-8 and D-I0 the agreement Ex. P2 carne to an end and, therefore, no relief for specific performance of contract as prayed by the plaintiff-appellant can be granted to him. The present suit filed by the plaintiff has no merit and is liable to be dismissed. The decree the specific performance is discretionary. It was in the light of various circumstances enumerated above, the trial Court refused to exercise the discretion of granting specific performance in favour of the plaintiff. On the above facts, it cannot be said that the discretion which was exercised by the trial Court was not fairly, reasonably or judicially exercised. Since the appellant has failed 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, the learned trial Court has not committed any legal error in dismissing the suit. 7. For the above mentioned reasons, the plaintiff-appellant has no cause of action so far as relief of specific perfomance is concerned. The appeal filed by the appellant has no merit and the same is hereby dismissed with costs throughout. Counsel fee Rs. 3,000/-, if pre-certified.