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2012 DIGILAW 1031 (PAT)

Ram Parasad Kushwaha v. Most. Yashoda

2012-07-26

MUNGESHWAR SAHOO

body2012
ORAL ORDER 1. Heard the learned counsel Mr. Yogendra Prasad Sinha on behalf of the appellant under Order 41 Rule 11 C.P.C. 2. The plaintiff appellant appellant had filed this second appeal against the judgment and decree dated 8.4.2010 passed by Sri Umesh Chandra Srivastava, 2nd Additional District Judge, West Champaran, Bettiah in Title Appeal No. 32 of 1999 dismissing the appeal and thereby confirming the judgment and decree dated 23rd July 1999 passed by Sri Jagat Narayan Tiwari, Munsif, Bettiahin Title Suit No. 67 of 1993. 3. The plaintiff appellant filed the suit for specific performance of contract dated 29.4.1992. The consideration money was fixed at Rs.25,000/- and out of Rs.25,000/- the plaintiff paid Rs.10,000/- as earnest money. It was agreed between the parties that the remaining consideration amount shall be paid at the time of registration of sale deed within December 1993. On 25.3.1993 the plaintiff arranged Rs.5000/- and requested the defendant to execute and register the sale deed but the defendant said that he will execute and register for 1 Kattha only and the sale deed will be executed for the remaining land only after receipt of the full consideration amount. Accordingly, the sale deed was executed for 1 Kattha in the name of son of the plaintiff. Subsequently, the defendant sold the property to defendant No.2. 4. The defendant filed contesting written statement. According to the defendant the so called agreement dated 29.4.1992 is forged and fabricated document. The L.T.I. appearing on the said agreement is not of the defendant. The defendant had sold 1 kattha land in the name of the son of the plaintiff on 25.3.1993. 5. After trial the trial court recorded a finding that plaintiff was not ready and willing to perform his party of contract and recorded a finding that the alleged agreement dated 29.4.1992 is forged document. Accordingly, dismissed the plaintiff suit. The plaintiff filed appeal. The appellate court also recorded the same finding and dismissed the appeal. 6. The learned counsel for the appellant submitted that the trial court without framing any issue regarding readiness and willingness recorded the finding that the plaintiff was not ready and willing to perform is part of the contract. Accordingly, dismissed the plaintiff suit. The plaintiff filed appeal. The appellate court also recorded the same finding and dismissed the appeal. 6. The learned counsel for the appellant submitted that the trial court without framing any issue regarding readiness and willingness recorded the finding that the plaintiff was not ready and willing to perform is part of the contract. The learned counsel further submitted that it may be the position that for some period the plaintiff had no money but subsequently he arranged and requested the defendant to execute the sale deed and even Advocate notice was sent but defendant failed to execute the sale deed. In such circumstances, it cannot be said that the plaintiff was not ready and willing to perform his part of the contract. On 25.3.1993 the plaintiff had paid Rs.5000/- and sale deed was executed by the defendant in favour of the son of the plaintiff. According to the learned counsel till that date the plaintiff could not arrange more money therefore, he paid Rs.5000/- and got the sale deed executed by defendant No.1 in favour of his son. Secondly, the learned counsel submitted that both the parties examined handwriting expert and both gave contradictory opinion to each other. In such circumstances, it was desirable that the court should have appointed third handwriting expert but without appointing third handwriting expert the trial court held that the agreement Ext.2 is forged document therefore, the judgment and decree of both the courts below are unsustainable in the eye of law. 7. So far first question regarding readiness and willingness is concerned, it may be mentioned here that the appellant is the plaintiff. Therefore, he was knowing that he has to prove is continuous readiness and willingness to perform his part of the contract as pleaded by him in terms of Section 16 (c) of the Specific Performance Act. The defendants have denied that he was ever ready nor he paid the amount. In such circumstances non-framing of issue will not be fatal because both the parties were knowing the case of each other and entered into trial. They adduced evidence to prove their respective cases. 8. The defendants have denied that he was ever ready nor he paid the amount. In such circumstances non-framing of issue will not be fatal because both the parties were knowing the case of each other and entered into trial. They adduced evidence to prove their respective cases. 8. In the case of Nedunuri Kameswaramma vs. Sampati Subba Rao AIR 1963 SC 884 the Apex Court has held that where the parties went to trial fully knowing the rival case and let of the evidences not only in support of their contentions but in refutation of those of the other side it cannot be said that the absence of issue was fatal to the case. In the present case at our hand this point was raised before the lower appellate court and lower appellate court specifically framed point No.2 and after considering materials recorded the finding that the plaintiff was not ready and willing to perform his part of the contract. So far this finding of both the courts below are concerned are pure question of fact. So far the submission of the learned counsel that the plaintiff might not have money till 25th March 1993 therefore, he got the sale deed in the name of his son only after paying Rs.5000/- but subsequently, he arranged and requested the defendant. He also served notice to execute the sale deed to the defendant, therefore, the finding recorded by the courts below are contrary to the case pleaded by the plaintiff. 9. So far this submission is concerned, it may be mentioned here that in the case of R.C. Chandiok and another vs. Chuni Lal Sabharwal and others 1970 (3) SCC 140 the Apex Court has held that readiness and willingness cannot be treated as a straight jacket formula and the issue has to be decided keeping in view the circumstances relevant to the intention and conduct of the party concerned. This view has further been expressed by the Apex Court in the case of P. D’Souza vs. Shondrilo Naidu (2004) 6 SCC 649 . 10. In the case of N.P. Thirugnanam (dead) By LRs. vs. Dr. R. Jagan Mohan Rao and others (1995) 5 Supreme Court Cases 115 the Apex Court at paragraph 5 held that if the plaintiff fails to either ever or prove his readiness and willingness he must fail. 10. In the case of N.P. Thirugnanam (dead) By LRs. vs. Dr. R. Jagan Mohan Rao and others (1995) 5 Supreme Court Cases 115 the Apex Court at paragraph 5 held that if the plaintiff fails to either ever or prove his readiness and willingness he must fail. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the executing till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. All these decisions have been followed by the Apex Court recently in the case of Narinderjit Singh vs. North Star Estate Promoters Limited (2012) 5 SCC 712 . 11. Therefore, in view of the above proposition of law it appears that in the present case admittedly, the plaintiff had failed to prove that in fact the consideration amount for Rs.15,000/- was available with him till 25th March 1993. The Advocate notice has been sent on 27th March 1993. Considering these facts and circumstances of the case and the subsequent conduct of the plaintiff appellant both the courts below have held that plaintiff was not ready and willing to perform his part of the contract. As stated above, this finding is pure question of fact and, therefore, in second appeal the same cannot be interfered with. So far genuineness of Ext.2 is concerned, it may be mentioned here that both the courts below have held that the document is forged document. In my opinion, this is also a pure question of fact. In the case of Rur Singh vs. Bachchan Kaur (2009) 11 SCC 1 the Apex Court considering the validity and / or the genuine of will has held that question whether a will had been duly proved and/or otherwise genuine is essentially a question of fact. In the present case both the courts below have found that the Ext.2 is not the genuine document rather it is forged document. Since this finding is also a finding of fact in second appellate jurisdiction this Court cannot interfere with the same. 12. In the present case both the courts below have found that the Ext.2 is not the genuine document rather it is forged document. Since this finding is also a finding of fact in second appellate jurisdiction this Court cannot interfere with the same. 12. In view of my above discussion, no substantial question of law is involved in this appeal and thus, this second appeal is dismissed at the admission stage itself.