Research › Search › Judgment

Allahabad High Court · body

2012 DIGILAW 1337 (ALL)

MUNNA LAL v. JAGDISH PRASAD

2012-06-01

MANOJ MISRA

body2012
JUDGMENT Hon’ble Manoj Misra, J.—I have heard Sri Faujdar Rai, learned counsel for the appellant and Sri N.B. Nigam, learned counsel for the respondent and have perused the record. 2. This is a plaintiff’s appeal against the judgment and decree dated 19.10.1978 passed by 6th Additional District Judge in Civil Appeal No. 10 of 1978 arising out of Civil Suit No. 48 of 1976. 3. Civil Suit No. 48 of 1976 was instituted for directing the defendant to specifically perform the contract of re-conveyance contained in the sale-deed dated 29.3.1974 and to execute the sale-deed in favour of the plaintiff after receiving Rs. 6,000/- from the defendant within such period, as specified by the Court. 4. The plaint case, in short, was that the plaintiff was the Bhumidhar of the plots mentioned in Schedule-A of the plaint to the extent of half share in them and, as he was in need of money, he executed a sale-deed of one-half share of his share i.e. one-fourth of the total area of the plots in favour of the defendant for a consideration of Rs. 6,000/- and further entered into a contract that the defendant would reconvey the plots to the plaintiff if the plaintiff pays to the defendant a sum of Rs. 6,000/- within a period of two years. The plaintiff claimed that he arranged for the money and took Rs. 6,000/- to the defendant and requested him to accept the amount and execute the sale-deed, but the defendant on one pretext or the other failed to execute the sale-deed. It was claimed that the plaintiff is ready and willing to perform his part of contract but the defendant is not ready to perform his part and has committed breach by not executing the sale-deed in favour of the plaintiff. It was claimed that the cause of action arose on 12.3.1976 when the plaintiff offered money to the defendant and requested him to execute the sale-deed and also on subsequent dates and when the defendant refused to execute the sale-deed by his conduct, on 27.3.1976, at Village Khera Jagdishpur, Pargana-Chibramau, District- Farrukhabad. 5. The defendant admitted the execution of the sale-deed dated 29.3.1974 as also the agreement of reconveyance, as pleaded by the plaintiff, however, the suit was contested on the ground that the plaintiff never offered to pay Rs. 5. The defendant admitted the execution of the sale-deed dated 29.3.1974 as also the agreement of reconveyance, as pleaded by the plaintiff, however, the suit was contested on the ground that the plaintiff never offered to pay Rs. 6,000/- within two years from the date of the execution of the sale-deed, and that the plaintiff had no money to pay to him within the said period. It was further claimed that no cause of action arose to the plaintiff on 12.3.1976 or afterwards as alleged by the plaintiff and that the plaintiff had no money to offer on 12.3.1976. In the additional pleas, it was further stated that the plaintiff had remained in possession of the property inspite of execution of the sale-deed, therefore, the defendant was entitled to interest at the rate of 1% per month on the amount of Rs. 6,000/-. By an amendment, a further plea was incorporated to the extent that the suit was not maintainable in law. This amendment was incorporated on an application dated 28.11.1977 wherein the defendant claimed that the deed of 29.3.1974 was not out and out a sale but a mortgage by conditional sale. 6. Trial Court framed the following issues : (1) Whether the plaintiff offered to pay Rs. 6,000/- to the defendant within two years from the date of conditional sale viz. 29.3.1974 to get the disputed property reconvened to him” If not” Its effect” (2) Whether the defendant is entitled to any interest, if so, at what rate ? (3) To what relief, if any, the plaintiff is entitled ? (4) Whether the suit for specific performance was not maintainable ? 7. Issue Nos. 1 and 4 were decided together by the trial Court. After considering the submissions of the parties at length trial Court came to the conclusion that the deed dated 29.3.1974 was not a mortgage by conditional sale but was out and out a sale executed by the plaintiff in favour of the defendant with an agreement for re-conveyance provided the plaintiff offered Rs. 6,000/- to the defendant within two years from the date 29.3.1974. On this finding, the Court concluded that the suit for specific performance was maintainable and it was not required for the plaintiff to institute a suit for redemption of mortgage. While deciding issue No. 1, which was as to whether the plaintiff offered to pay Rs. 6,000/- to the defendant within two years from the date 29.3.1974. On this finding, the Court concluded that the suit for specific performance was maintainable and it was not required for the plaintiff to institute a suit for redemption of mortgage. While deciding issue No. 1, which was as to whether the plaintiff offered to pay Rs. 6,000/- to the defendant within two years from the date of sale viz. 29.3.1974 to get the disputed property re-conveyed to him, the finding recorded by the trial Court, in paragraph 10 of its judgment, is as follows: “10. P.W.1 has proved on oath that he offered Rs. 6,000/- to the defendant, and for that purpose he had collected money by selling his another property. He offered money but the defendant demanded Rs. 500/- more and did not execute sale-deed, hence he filed the suit. Defendant (D.W.2) has denied this fact. I believe the plaintiff and disbelieve the defendant. For this very purpose, plaintiff had to sell his another property for Rs. 6,000/- and I am not ready to believe that he would not go to defendant to offer money for re-conveyance of the property. Sale-deed by the plaintiff in favour of Sri Ram Sewak for Rs. 6,000/- is not denied by the defendant. Therefore, I believe the plaintiff and hold that he offered Rs. 6,000/- to the defendant within two years from 29.3.1974 to get the disputed property re-conveyed to him. Plaintiff was still ready to pay amount. Therefore, he was entitled to get relief claimed for. Issue Nos. 1 and 4 answered accordingly.” 8. On issue No. 2, the trial Court came to a conclusion that there was nothing to show that any interest was agreed to be paid, and if the plaintiff had been in possession in breach of terms of the sale-deed, then the defendant had a separate cause of action to maintain a suit for recovery of the losses and damages. 9. Accordingly, the trial Court decreed the suit for specific performance in the following terms: “Suit for specific performance of contract to resale the property in suit in favour of plaintiff on payment of Rs. 6,000/- by the plaintiff is decreed with costs. 9. Accordingly, the trial Court decreed the suit for specific performance in the following terms: “Suit for specific performance of contract to resale the property in suit in favour of plaintiff on payment of Rs. 6,000/- by the plaintiff is decreed with costs. The defendant is directed to execute the sale-deed and re-convey the property in suit (half-share in the property detailed in schedule A of the plaint) within one month from the date of this order and the plaintiff is directed to deposit Rs. 6,000/- within the said period. In case, the defendant fails to execute the sale-deed as directed, the plaintiff is directed to move an application for execution of decree.” 10. It may be mentioned that during the course of hearing of the present appeal, the learned counsel for the appellant drew the attention of the Court to the record of the Court below, which disclosed that vide challan dated 9.12.1978 (paper No. 25A’/A) the plaintiff, in compliance of the trial Court decree, made deposit of the entire amount of Rs. 6,000/- in the Treasury in favour of Civil Judge, Fatehgarh against the decree passed in Original Suit No. 48 of 1976. 11. Aggrieved by the judgment and decree of the trial Court, the defendant filed Civil Appeal No. 10 of 1978. From the order dated 12.1.1978 as contained in the order-sheet of the Court below, it appears that though the appeal was admitted for hearing, but the stay application was rejected. 12. Before the lower appellate Court, in the memo of appeal, the following grounds were taken : “1. Because the decree and judgment of the lower Court are against facts on record and contrary to law. 2. Because the finding of the lower Court that the deed dated 29.3.1974 was an out and out sale with a contract to repurchase is bad in law. 3. Because the deed dated 29.3.1974 was a mortgage by conditional sale according to the correct interpretation of the deed. 4. Because the deed dated 29.3.1974 being a mortgage by conditional sale the suit for specific performance was not maintainable. 5. 3. Because the deed dated 29.3.1974 was a mortgage by conditional sale according to the correct interpretation of the deed. 4. Because the deed dated 29.3.1974 being a mortgage by conditional sale the suit for specific performance was not maintainable. 5. Because the appellant will be put to a huge loss if the suit is decreed as a suit for specific performance as the appellant will have to pay the stamp and registration of sale-deed and costs of the suit but in case of redemption of the mortgage the appellant will not have to pay any amount. 6. Because in any case the appellant was always ready to accept his mortgage money and the finding of the lower Court to the contrary is wrong. 7. Because there was a variance between pleading and proof. The case put up by the plaintiff was that he offered the money on 12.3.1976 but in his statement he gave another date when he offered the money. 8. Because according to the statement of the plaintiff himself, he remained in possession of the property and paid interest to the appellant. 9. Because the plaintiff stated in clear words that the property was mortgaged by him on the condition of return within 2 years. 10. Because the lower Court wrongly interpreted the ruling of the Hon’ble Supreme Court. 11. Because in any case the appellant was not liable to pay the cost of the suit and the expenses for the execution of the sale- deed. 12. Because the appellant was entitled to get Rs. 500/- also.” 13. The lower appellate Court after considering the terms and conditions of the sale-deed came to the conclusion that it was not a mortgage by conditional sale, but was out and out a sale with an agreement for re-conveyance. The Court, thus, affirmed the finding of the trial Court in this regard. It may be mentioned that neither party to this appeal assailed this finding during the course of hearing of this second appeal. 14. The lower appellate Court, however, by noticing paragraph No. 5 of the plaint, came to the conclusion that the averments given in the plaint did not conform to the requirement of Section 16(c) of the Specific Relief Act. The averments contained in paragraph No. 5 of the plaint are being reproduced below : “5. 14. The lower appellate Court, however, by noticing paragraph No. 5 of the plaint, came to the conclusion that the averments given in the plaint did not conform to the requirement of Section 16(c) of the Specific Relief Act. The averments contained in paragraph No. 5 of the plaint are being reproduced below : “5. That the plaintiff is ready and willing to perform his part of contract but the defendant is not ready to perform his part of the contract and has committed a breach of the contract by not executing the sale-deed in favour of the plaintiff.” 15. Citing the aforequoted averments made in paragraph No. 5 of the plaint, the lower appellate Court, by placing reliance on a decision of this Court in the case of Mehmood Khan and others, 1978 AWC 457, held that the plaint averments were not in conformity with the requirements of Section 16(c) of the Specific Relief Act as they did not show that the plaintiff has been and is still ready and willing to perform his part of the contract. 16. Apart from above, the lower appellate Court, on the question whether the plaintiff had ready money to perform his part of contract and had offered the same to the defendant, did not agree with the findings of the trial Court and recorded its own finding, which is being reproduced below: “Now coming to the question of fact as to whether the plaintiff had ready money to perform his part of contract, it may be seen that the plaintiff stated that he had gone to defendant on 25th March with 6000/- but the defendant had demanded another sum of Rs. 500/-. He has asked the defendant that he was ready to get the sale-deed executed. He had arranged the money by executing the sale-deed in favour of Ram Sewak on the 25th March. That sale has not been brought on record to show the correctness of this statement. In para 6 of the plaint the plaintiff alleged that the cause of action arose on 12th March, 1976 when he offered money to the defendant and requested him to executed the sale-deed. There is nothing in his statement to show that he had gone to the defendant on 12th March, 1976 and offered money. In para 6 of the plaint the plaintiff alleged that the cause of action arose on 12th March, 1976 when he offered money to the defendant and requested him to executed the sale-deed. There is nothing in his statement to show that he had gone to the defendant on 12th March, 1976 and offered money. The fact that he arranged money by selling his land to Ram Sewak on 25th March and that’s why he has not stated on oath that he had gone to the defendant on 12th March with the money. In this view of the matter, the contention of the plaintiff contained in para 6 of the plaint that he went to the defendant on 12th March and offered money cannot be accepted. In para 6 of the plaint it was alleged that the defendant refused to execute the sale-deed by his conduct on 27th March. He specifically alleged in this paragraph, that he had actually gone to the defendant on 25th March as stated by him on oath in Court. The defendant on the other hand stated that the plaintiff had agreed to pay the amount on 29th March, 1976 and he had gone on that date to Registration to take the money. He waited there but the plaintiff did not go. He then gave the notice. There was no agreement with respect to 25th March, 1976. There is also on record a notice Ext 2 sent by the defendant Jagdish Prasad to the plaintiff. The defendant through this notice intimated the plaintiff that he should get the sale-deed executed as the limitation was expiring. This goes to show that the defendant was actually ready to perform his part of contract. Under these circumstances I am of the view that the plaintiff has not been able to establish that he was ready with the money and was also ready to perform his part of contract. The findings of the learned Trial Court to the contrary are not correct. The Learned Trial Court simply mentioned that the plaintiff stated on oath that he offered Rs. 6000/- but the defendant demanded Rs. 500/- more and the defendant denied this fact. The Learned Trial Court also mentioned that it believed the plaintiff and disbelieved the defendant. The findings of the learned Trial Court to the contrary are not correct. The Learned Trial Court simply mentioned that the plaintiff stated on oath that he offered Rs. 6000/- but the defendant demanded Rs. 500/- more and the defendant denied this fact. The Learned Trial Court also mentioned that it believed the plaintiff and disbelieved the defendant. The Learned Trial Court did not consider the fact as to whether the plaintiff had actually ready money with him as alleged in para 6 of the plaint and had actually gone to the defendant to offer the money as claimed. The evidence was not properly assessed by the Learned Trial Court on this point and that is why it fell into error. I, therefore, do not agree with the findings of the Learned Trial Court that the plaintiff was ready to perform his part of contract. I, therefore, hold that the contention of the Learned Counsel for the appellant that the plaintiff was not ready and willing to perform his part of contract must be accepted.” 17. On the basis of the aforesaid finding, the judgment and decree of the trial Court was set aside and the suit of the plaintiff was dismissed. 18. Aggrieved by the judgment and decree of the lower appellate Court, the present second appeal has been filed by the plaintiff. 19. Sri Faujdar Rai, learned counsel for the plaintiff-appellant, submitted that the Court below committed error while holding that the plaint averments did not comply with the requirement of the provisions of Section 16(c) of the Specific Relief Act, 1963. He submitted that the plaint has to be read as a whole. The Court below only read para 5 of the plaint, but it did not consider the plaint as a whole, which clearly demonstrated that after arranging for the money within the prescribed period of two years, the plaintiff demanded for execution of the deed of re-conveyance by offering the money to the defendant, which clearly disclosed that the plaintiff had been ready and willing to perform his part under the contract. He further submitted that readiness and willingness of the plaintiff has to be considered in the light of the facts and circumstances of the case and the agreement in question. He submitted that the agreement was of re-conveyance contained in a sale-deed whereby the plaintiff had transferred his interest to the defendant. He further submitted that readiness and willingness of the plaintiff has to be considered in the light of the facts and circumstances of the case and the agreement in question. He submitted that the agreement was of re-conveyance contained in a sale-deed whereby the plaintiff had transferred his interest to the defendant. In the agreement of re-conveyance, which was contained in the deed, it was mentioned that if the plaintiff returns back Rs. 6,000/- within two years of the execution of the sale, then the defendant was under an obligation to re-convey the property. He submitted that in such a situation, the plaintiff having pleaded that he arranged for the money and had offered it to the defendant, within the prescribed period of two years, who refused to re-convey the property, there was sufficient compliance of the requirement of the provisions of Section 16(c) of the Specific Relief Act. 20. With regard to the finding of the lower appellate Court that the plaintiff had failed to tender /offer to pay a sum of Rs. 6,000/- to the defendant within two years, the learned counsel for the appellant submitted that the said finding was not sustainable in law inasmuch as the said finding was based on ignorance of relevant material, which was taken note of by the trial Court. He submitted that the lower appellate Court laid much emphasis on the fact that there was some variance between the pleadings and the evidence with regard to the date of tender of money when, in fact, it was not so much relevant as it was proved on record that the plaintiff had sold another property to one Ram Sewak, by which the plaintiff had arranged for the sum of money required to be paid to the defendant. It was submitted that the execution of sale-deed by the plaintiff of another land to arrange for the money within the prescribed period of two years was not denied by the defendant rather the defendant admitted this fact during his cross-examination. It was contended that when the sale to Ram Sewak was not disputed, the non-production of sale-deed was irrelevant and, as such, the Court below lost direction when it drew adverse inference against the plaintiff for its non-production. It was contended that when the sale to Ram Sewak was not disputed, the non-production of sale-deed was irrelevant and, as such, the Court below lost direction when it drew adverse inference against the plaintiff for its non-production. It was also contended that the Court below failed to notice the own conduct of the defendant, which clearly demonstrated that he was insisting on payment of interest on the amount of Rs. 6000/-, which lend credence to the claim of the plaintiff that the defendant had demanded an additional sum of Rs. 500/- and had, in fact, refused to execute the sale-deed for Rs. 6000/-. It was also contended that there was no real dispute with regards to the readiness and willingness of the plaintiff, the main thrust of the submission of the defendant was that the deed was mortgage by conditional sale and, therefore, the suit for specific performance was not maintainable inasmuch as a suit for redemption of mortgage ought to have been instituted. In nutshell, the argument of the learned counsel for the appellant is that the view taken by the lower appellate Court that the plaintiff had not offered money to the defendant within the prescribed period of two years, is perverse, inasmuch as no reasonable person would logically arrived at such a conclusion on the basis of proven facts and circumstances and further the finding recorded by it was in ignorance of relevant material. 21. Sri N.B. Nigam, learned counsel for the respondent, supported the reasoning adopted by the trial Court and placed reliance on three Apex Court judgments, which are as follows : (1) Abdul Raheem v. Karnataka Electricity Board and others, AIR 2008 SC 956 ; (2) Smt. Chand Rani v. Smt. Kamal Rani, AIR 1993 SC 1742 and; (3) Gauri Shankar Prasad and Others v. Brahma Nand Singh, (2008) 8 SCC 287 . 22. Sri N.B. Nigam, learned counsel for the respondent, relying on paragraph 11 of the judgment in the case of Abdul Raheem’s case (supra), submitted that the question of readiness and willingness of the plaintiff in a suit for specific performance could not be a substantial question of law, therefore, the second appeal on such question cannot be entertained. 23. 22. Sri N.B. Nigam, learned counsel for the respondent, relying on paragraph 11 of the judgment in the case of Abdul Raheem’s case (supra), submitted that the question of readiness and willingness of the plaintiff in a suit for specific performance could not be a substantial question of law, therefore, the second appeal on such question cannot be entertained. 23. Relying on judgments in the case of Gauri Shankar Prasad and others (supra) and Smt. Chand Rani v. Smt. Kamal Rani (supra), Sri N.B. Nigam submitted that in a case of re-conveyance of property, time is the essence of the agreement and since it could not be proved that the plaintiff had offered Rs. 6,000/- to the defendant within the stipulated period of two years, the decree of specific performance could not have been granted in his favour. 24. From a careful examination of the pleadings of the parties, the issues framed and the findings recorded by the Courts below, as also from the arguments advanced by the counsel for the parties, I am of the view that the substantial questions of law involved for adjudication in this second appeal are : (1) Whether the view of the lower appellate Court that the plaint averments did not sufficiently comply with the requirement of Section 16(c) of the Specific Relief Act, is not legally justified? (2) Whether the grounds on which the appellate Court reversed the finding of the trial Court on Issue No. 1 were legally sound and also whether the appellate Court’s finding on the said issue is vitiated by a manifestly erroneous approach in law as also for non-consideration of the relevant material/evidence/circumstances brought/proved on record? 25. It may be mentioned that at the time of the admission of this appeal, the substantial questions of law formulated for hearing of the appeal were those as mentioned as question Nos. 1 and 2 in the memo of appeal, which are being reproduced below : “(1) Whether it is necessary for plaintiff in a suit for specific performance based on conditional sale with a right of repurchase to specifically plead that he had been ready and willing to perform his part of contract failing which the suit shall fail and it is not sufficient to state that the plaintiff is ready and willing to perform his part of contract. (2) Can the Civil Court refuse to grant decree for specific performance of contract in a suit of conditional sale, for want of plea that plaintiff has not alleged that he had been and is willing to perform his part of contract even when that parties to the suit led evidence that plaintiff had been ready and willing to perform his part of contract and the Court is in a position to decide it on merits.” 26. As the questions that were proposed in the memo of appeal at the time of its admission did not completely cover the issues involved in the appeal and since the counsel for the parties were heard at length on the issues which are covered by the questions that have been framed now and which arise from the judgments of the two Courts below, the decision of this appeal would depend on the answers to the questions, as framed in paragraph No. 24 herein above. 27. With regard to question No. 1 which is as to whether the plaint averments sufficiently complied with the requirement of the provisions of Section 16(c) of the Specific Relief Act, the counsel for the appellant has submitted that the plaint has to be read as a whole. He has drawn the attention of the Court to paragraph Nos. 3 to 6 of the plaint, which are being reproduced below : "(3) That the plaintiff arranged for the money and took Rs. 6,000/- to the defendant for payment and requested him to accept the amount of Rs. 6,000/- and execute the sale-deed in favour of the plaintiff. (4) That the defendant has been putting of the matter of executing the sale-deed in favour of the plaintiff on one pretext or the other and ultimately the defendant informed the plaintiff that he would execute the sale-deed after his return from outside after selling his potatoes. The plaintiff thinks that this is a ruse on the part of the defendant to put off the execution of the sale-deed and to deprive the plaintiff of his valuable property which is worth at least Rs. 25,000/-. (5) That the plaintiff is ready and willing to perform his part of contract but the defendant is not ready to perform his part of the contract and has committed a breach of the contract by not executing the sale-deed in favour of the plaintiff. 25,000/-. (5) That the plaintiff is ready and willing to perform his part of contract but the defendant is not ready to perform his part of the contract and has committed a breach of the contract by not executing the sale-deed in favour of the plaintiff. (6) That the cause of action for the suit arose on 12.3.1976 when the plaintiff offered money to the defendant and requested him to execute the sale-deed and on subsequent dates and when the defendant refused to execute the sale-deed by his conduct on 27.3.1976 at village Khera Jagdishpur, Pargana- Chhibramau, District-Farrukhabad within the jurisdiction of this Court and the Court has jurisdiction to entertain the suit.” It has been submitted by the counsel for the appellant that paragraph Nos. 3, 4, 5 and 6, if read as a whole, would go to show that the plaintiff had arranged for the money and that he was not only ready and willing for the re-conveyance of the property, but he had done what he was required to do, that was to arrange for the money and offer it to the plaintiff within the period of two years, therefore, the view of the Courts below that the plaint did not sufficiently comply with the requirement of the provisions of Section 16(c) of the Specific Relief Act is not justified in law. 28. The question whether the plaint averments are in conformity with the provisions of Section 16(c) of the Specific Relief Act has been a matter of frequent judicial pronouncements. Order VI Rule 3 of the C.P.C provides the forms of pleading. It provides that the forms in Appendix-A would be applicable, and where they are not applicable forms of the like character, as nearly as may be, shall be used for all pleadings. With regards to a suit for specific performance, Appendix-A of the Civil Procedure Code provides two types of forms i.e. Form No. 47 and Form No. 48, which are being reproduced below : Form No. 47. Specific Performance (No. 1) (Title) A. B., the above-named plaintiff, states as follows :- 1. By an agreement dated the ............ day of ............and signed by the defendant, he contracted to buy of [or sell to] the plaintiff certain immovable property therein described and referred to, for the sum of.........rupees. 2. Specific Performance (No. 1) (Title) A. B., the above-named plaintiff, states as follows :- 1. By an agreement dated the ............ day of ............and signed by the defendant, he contracted to buy of [or sell to] the plaintiff certain immovable property therein described and referred to, for the sum of.........rupees. 2. The plaintiff has applied to the defendant specifically to perform the agreement on his part, but the defendant has not done so. 3. The plaintiff has been and still is ready and willing specifically to perform the agreement on his part of which the defendant has had notice. [As in paras 4 and 5 of Form No. 1.] 6. The plaintiff claims that the Court will order the defendant specifically to perform the agreement and to do all acts necessary to put the plaintiff in full possession of the said property [or to accept a transfer and possession of the said property] and to pay the costs of the suit.” ————————————————— Form No. 48. Specific Performance (No. 2) (Title) A. B., the above-named plaintiff, states as follows :- 1. On the........ day of ........19.../20..., the plaintiff and defendant entered into an agreement, in writing, and the original document is hereto annexed. The defendant, was absolutely entitled to the immovable property described in the agreement. 2. On the .........day of........19..../20..., the plaintiff tendered.......... rupees to the defendant, and demanded a transfer of the said property by a sufficient instrument. 3. On the .........day of........19..../20..., the plaintiff again demanded such transfer. [Or the defendant refused to transfer the same to the plaintiff.] 4. The defendant has not executed any instrument of transfer. 5. The plaintiff is still ready and willing to pay the purchase-money of the said property to the defendant. [As in paras 4 and 5 of Form No. 1.] 8. The plaintiff claims—— (1) that the defendant transfers the said property to the plaintiff by a sufficient instrument [following the terms of the agreement]; (2) ..........rupees compensation for withholding the same.” 29. The difference between Form 47 and 48 is visible when the averments made in para 3 of Form 47 is compared with para 5 of Form 48. In the instant case, the plaint averments are to the effect that the plaintiff has performed his part under the contract by making a tender of Rs. The difference between Form 47 and 48 is visible when the averments made in para 3 of Form 47 is compared with para 5 of Form 48. In the instant case, the plaint averments are to the effect that the plaintiff has performed his part under the contract by making a tender of Rs. 6,000/- to the defendant for re-conveyance of the property, which he refused to perform and has thereby committed breach of the agreement. In that scenario, I’m of the view that the plaintiff was not mandated in law to state that he has been ready and willing to perform. The statement that he is ready and willing to perform clubbed with his statement that he has already tendered the amount and demanded for execution of the sale-deed within the prescribed period was sufficient compliance of the requirement of Section 16(c) of the Specific Relief Act, and it appears to be in conformity with para 5 of Form 48, as quoted above. 30. A careful examination of the paragraph Nos. 3,4 5, and 6 goes to show that the plaintiff had arranged for the money and had taken the money to the defendant for payment of the same and had also requested the defendant to accept the amount and execute the sale-deed. Thus, in my view the averments made in the plaint are in conformity with Form 48. 31. Even otherwise, the Apex Court in its judgment in the case of Syed Dastagir v. T.R. Gopalakrishna Shetty, (1999) 6 SCC 337 , in paragraph 9, observed as under : “So whole gamut of issue raised is, how to construe a plea specially with reference to Section 16(c) and what are the obligations which the plaintiff has to comply with reference to his plea and whether the plea of the plaintiff could not be construed to conform to the requirement of the aforesaid Section, or does this section require specific words to be pleaded that he has performed or has always been ready and is willing to perform his part of the contract. In construing a plea in any pleading, Courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of ones case for a relief. In construing a plea in any pleading, Courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of ones case for a relief. Such an expression may be pointed, precise, some times vague but still could be gathered what he wants to convey through only by reading the whole pleading, depends on the person drafting a plea. In India most of the pleas are drafted by counsels hence aforesaid difference of pleas which inevitably differ from one to other. Thus, to gather true spirit behind a plea it should be read as a whole. This does not distract one from performing his obligations as required under a statute. But to test, whether he has performed his obligations one has to see the pith and substance of a plea. Where a statute requires any fact to be pleaded then that has to be pleaded may be in any form. Same plea may be stated by different persons through different words then how could it be constricted to be only in any particular nomenclature or word. Unless statute specifically require for a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16 (c) does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of Readiness and willingness has to be in spirit and substance and not in letter and form. So to insist for mechanical production of the exact words of an statute is to insist for the form rather than essence. So the absence of form cannot dissolve an essence if already pleaded.” 32. So the compliance of Readiness and willingness has to be in spirit and substance and not in letter and form. So to insist for mechanical production of the exact words of an statute is to insist for the form rather than essence. So the absence of form cannot dissolve an essence if already pleaded.” 32. The Apex Court again reiterated the view taken in Syed Dastagir’s case (supra) in its decision in the case of Motilal Jain v. Ramdasi Devi, (2000) 6 SCC 420 , where, in paragraph 10 of the report, it was observed : “If the averments in the plaint as a whole do clearly indicate the readiness and willingness of the plaintiff to fulfil his part of the obligations under the contract which is the subject-matter of the suit, the fact they are differently worded will not militate against readiness and willingness of the plaintiff in a suit for specific performance of contract for sale.” This view of the Apex Court was again reiterated in the case of Sugani v. Rameshwar Das, (2006) 11 SCC 587 . In the case of H.P. Pyarejan v. Dasappa, (2006) 2 SCC 496 , the Apex Court, in para 13 of the report, observed as follows : “The basic principle behind Section 16 (c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the relief of specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief.” 33. Applying the principles laid down by the Apex Court for testing whether the averments made in the plaint sufficiently complied with the requirement of Section 16(c) of the Specific Relief Act, I’m of the view that if the plaint in question is read as a whole it cannot be said that the conduct of the plaintiff, as disclosed in the plaint, did not indicate that he has been ready and willing to perform his part under the contract. There is also a very important feature of the case, that is, that the suit was instituted on 29.3.1976, which was the last day for the performance by the plaintiff. Thus, from the over all conduct of the plaintiff as disclosed from the averments made in the plaint it can safely be held that the averments in the plaint when read as a whole do disclose that the plaintiff has always been ready and willing to perform the essential terms of the contract which were required to be performed by him. Accordingly, it is held that the plaint averments sufficiently complied with the requirement of Section 16(c) of the Specific Relief Act. Thus, the question No. 1 formulated for the decision of this appeal is decided in favour of the plaintiff and against the defendant. 34. As regards the second question i.e. with regards to the validity of the finding recorded by the lower appellate Court on the issue as to whether the plaintiff had proved that he had ready money, which he offered to the defendant within time provided by the agreement, the counsel for the respondent vehemently argued that this finding is a finding of fact and this question would be out of the scope of Section 100 of the Civil Procedure Code. 35. 35. No doubt, whether a person has offered the money or whether a person was in possession of money to make a valid offer is a pure question of fact, but where answer to this question has been arrived at by one of the Courts below in a manner different to that arrived at by the other, whose judgment is under challenge, then it may give rise to a question of law if the finding is challenged on the ground that it is based on misreading of evidence, or is vitiated for non-consideration of admissible evidence, or by consideration of inadmissible evidence, or have been arrived at by adopting erroneous principle of law, or the conclusion drawn from proven facts and circumstances is such which no reasonable person would arrive at or it completely defies logic as to suffer from the vice of irrationality incurring the blame of being perverse (reference may be made to Apex Court’s decisions in the case of Municipal Committee, Hoshiarpur v. Punjab State Electricity Board and others, (2010) 13 SCC 216 ; Chandna Impex (P) Ltd v. Commissioner of Customs, (2011) 7 SCC 289 ; Hero Vinoth (minor) v. Seshammal, (2006) 5 SCC 545 ). 36. In this regard, the counsel for the appellant has pointed out that the trial Court had taken note of a very vital piece of evidence which the appellate Court apparently failed to advert to while reversing the finding of the trial Court. The counsel for the appellant submitted that the plaintiff was able to prove that prior to the deadline i.e. 29.3.1974, he had sold another property for Rs. 6000/- to one Ram Sewak for arranging funds to pay off the defendant for the purpose of re-conveyance, which fact was not denied, but rather admitted by the defendant in his oral deposition before the trial Court. 6000/- to one Ram Sewak for arranging funds to pay off the defendant for the purpose of re-conveyance, which fact was not denied, but rather admitted by the defendant in his oral deposition before the trial Court. The counsel for the appellant brought to the notice of the Court the statement of the plaintiff as well as the defendant made during his oral testimony, which are being reproduced below : Statement of the Plaintiff (P.W.1) : ^^ih0MCyw01 1- eSus viuh tk;nkn dk cSukek txnh’k izlkn izfroknh ds i{k esa fd;k FkkA mldh fy[kki<+h gq;h FkhA mlesa 'krsZ rS Fkh dh ;fn 2 o"kZ esa oknh Áfroknh dks 6000@& :0 ns ns rks og iwjh tk;nkn dk cSukek mlh vof/k esa dj nsxkA og cSukek bDt 1 gSA 25 ekpZ dks N% gtkj :0] ysdj x;k rks Áfroknh ls dgk fd tehu eqrkfcd 'krZ oS dj nks eSa fy[kkus dks rS;kj gw¡ iSlk yk;k gw¡A Áfroknh us 500@& ik¡p lkS :0 vkSj ek¡xkA gekjh o Áfroknh dh tehu ij lk>snkjh FkhA eSus dgk fglkc fdrkc dj yks tks gekjk fudys gesa ns nks rqEgkjk fudys rks gels ysA bl ij izfroknh us N% gtkj :0 ysdj cSuke djus ls bUdkj dj fn;kA rc nkok fd;k ;fn :i;k ysdj cSukek fy[kkus u tkrk o ckn esa nkok u djrk rks fe;kn fudy tkrhA 2- eSus nkok dj fn;k rc ckn esa izfroknh us uksfVl fNcjkem ls fn;k rc eSus mldk tokc fn;kA vc Hkh N gtkj :0 nsus dks eSa rS;kj gwW o cSukek fy[kkus dks rS;kj gWwA x x x x x x x x x 2- [ksr eSa tksrrk FkkA viuk o izfroknh dk Hkkx nksuks tksrrk FkkA le>kSrk Fkk fd nks o"kZ esa N gtkj : nsus ij cSukek djus ij tehu okil gksuk FkkA bl dkj.k dCtk esjk jgkA lk>snkjh dh fy[kki<+h ugh gksxhA [kpZ dk fglkc ugh gSA 3- [ksr ij esjk dCtk vc Hkh gSA ijlky Hkh cks;k FkkA nks o"kZ dh 'krZ ij jgu FkkA C;kt nsuk ugh Bgjk FkkA N gtkj esa lc tqM+k FkkA eSa vui<+ gWwA esjh etnwjh C;kt esa dk j[ksxs ;gh uksfV’k esa fy[kk FkkA Vw dksVZ%& nks o"kZ ds 'krZ ds vuqlkj N gtkj nsus ij cSuke okil djuk FkkA jgu 'kfrZ;k ugh FkkA jgu dh ckr ugh FkhA 4- esjh etnwjh djhc 250@300@& dh gksxhA izfroknh us dsoy :0 3300@& fn;k Fkk C;kt dk tksM+dj 6 gtkj rS FkkA C;kt vyx ls ugh tksM+k tkuk FkkA tks dkxt bDt 1 ij fy[kk x;k mlesa lwn ugh fy[kk FkkA ge nksuks esa vkilh ckr rS gksdj lwn tksM+dj 6 gtkj rS FkkA 5- esjk izfroknh ls vkf[kjh fnu rglhy esa cSukek djkuk ugh rS FkkA tc esjs ikl iSls gks rHkh crk dj tkuk FkkA jkelsod tks Jh jke dk HkkbZ gS mlls 6 gtkj :0 fy;k FkkA os esjh xokgh esa ugh vk;s gSA eSus nwljh tehu dh jftLVh muds gd esa dj ds : fy;k FkkA og jftLVh 25 dh gS 29 dh ugh gSA 500@& Hkwlk dk ekax jgs FksA vyx ls Hkwlk dk fglkc 160 fudyrk gS tks bl tehu ls lEcfU/kr ugh gSA lqudj rlnhd fd;kA g0 viBuh; 28-11-77^^ Statement of the Defendant (D.W.1) : ^^Mh0MCyw01 1- bDt 1 cSukek 'kfrZ;k oknh us fd;k FkkA jguukek oknh us fd;k FkkA crkSj 'kfrZ;k cSukek dk FkkA oknh us 6000@& fy;k Fkk vly] C;kt ugh lkfey FkkA oknh us [ksrksa ij dCtk eq>s ugh fn;kA esjh lk>snkjh esa ugh fd;kA oknh us 29-3-76 dks : nsus dks dgk FkkA ml fnu : ysus eSa rglhy x;k] eSa rglhy oknh dk bUrtkj fd;kA og ugh vk;k rc rglhy fNcjkem ls ,d uksfV’k oknh dks fn;kA oknh ds ikl 6000@& nsus dks ugh FkkA fnukad 25-3-76 dks tkus dh ckr ugh FkhA x x x x x x x x x 2- bDt 1 lqudj le>kdj fy[kk;k FkkA ckrs lHkh tks rS Fkh ogh fy[kh xbZA ;g 'krZ rS Fkh fd 6000@& :0 ysdj nks o"kZ ds vUnj cSuke dj nwaxkA 3- oknh us jkeLo:i ds gd esa cSukek 6000@& esa fd;k ;k ugh eSa ugh tkurkA cSukek fd;k FkkA og cSukek ;k jguukek esjh uksfVl ds igys oknh us fd;k FkkA esjh uksfVl ;gh gS tks eq>s vkt fn[kkbZ xbZA bl ij bDt 2 Mkyk x;kA eS vc Hkh cSukek djus ij rS;kj gwWA eSa 6000@& o C;kt ij d:xkA bDt 1 ij C;kt dh ckr ugh fy[kh gSA lqudj rlnhd fd;kA g0 viBuh; 28-11-77^^ 37. On the strength of the above statements, the counsel for the appellant submitted that once the defendant had not denied the deposition of the plaintiff that he had sold another piece of land to Ram Sewak for arranging of funds and had rather admitted that the said sale was conducted before he had issued notice which was marked as Exibit-2. From the date of the notice, which as per the defendant’s case was 29.3.1976, it was adequately proved on record that prior to 29.3.1976 i.e. the last date for execution of the sale-deed, the plaintiff had arranged for the money. The counsel for the appellant submits that it defies logic that the plaintiff having sold another land and sitting over cash would not have tendered money to the defendant for the purpose of execution of the sale-deed. He, therefore, submits that the finding recorded by the trial Court was based on natural human conduct whereas that of the lower appellate Court is based on a myopic vision, and suffers from the vice of being irrational and it can safely be said that on the proven facts no reasonable person would come to the conclusion as was arrived at by the appellate Court. He has also submitted that the Court below had literally ignored the fact that there was no dispute that prior to the dead line of 29.3.1976, the plaintiff had sold another land and was sitting on cash sufficient to seek execution of the sale-deed in question. 38. The counsel for the appellant further submitted that from the record, it is clear that the plaint was instituted on 29.3.1976, i.e. on the last date fixed for the purpose of seeking re-conveyance. He submits that this fact itself goes to show that the plaintiff not only had money but was ready and willing to get the sale-deed executed at any cost from the defendant. 39. To the aforesaid submissions advanced by the learned counsel for the plaintiff-appellant, Sri N.B. Nigam, learned counsel for the respondent submitted that the very fact that the plaint was instituted on 29.3.1976 goes to show that the plaintiff was not ready and willing inasmuch as he should have been at the Tehsil office for the purpose of registration and not in the Court for verification of the plaint. 40. I do not agree to this submission of the learned counsel for the respondent. 40. I do not agree to this submission of the learned counsel for the respondent. It has not been shown that 29.3.1976 was the date fixed for execution of the sale-deed either under deed of re-conveyance or by any demand notice from either side. The date of 29.3.1976 was only the outer time limit for performance by the plaintiff. As per the agreement, the sale-deed was required to be executed on any date within a period of two years from the date of the sale-deed subject to tender of money amounting to Rs. 6,000/- by the plaintiff. There is also no evidence to show that any notice was given by either party to the other to come to the Registry on 29.3.1976 for the purpose of execution of the sale-deed. The notice, which has been marked as Exibit 2, issued at the instance of the defendant, to the plaintiff, is of the date 29.3.1976, as is clear from the testimony of the defendant. Meaning thereby that this notice cannot be a notice for execution of the sale-deed on a date by or before 29.3.1976. In the given circumstances, if the plaintiff had instituted a suit on 29.3.1976 itself that would not go to show that he was not ready and willing to get the deed of re-conveyance executed in terms of the agreement for re-conveyance. Rather it would point out to the readiness and willingness of the plaintiff to perform the essential terms of the contract on his part. In my view, the institution of the suit on 29.3.1976 is a very important and vital piece of evidence relating to the conduct of the plaintiff, which goes to show that the plaintiff was, in fact, ready and willing to perform his part of the contract. Thus, I’m of the view that non-consideration of this vital aspect of the matter by the lower appellate Court makes its decision vulnerable to challenge. 41. Thus, I’m of the view that non-consideration of this vital aspect of the matter by the lower appellate Court makes its decision vulnerable to challenge. 41. Learned counsel for the respondent submitted that the Court below had disbelieved the case of the plaintiff that he had arranged for the money, and had tendered the money to the defendant, on three grounds : (a) that as per the plaint case, the money was tendered on 12.3.1976, whereas, in the evidence the plaintiff made a statement that the money was tendered on 25.3.1976; (b) that there was no mention in the plaint that any sale-deed was executed on 25.3.1976, in favour of Ram Sewak, so as to arrange for the funds; and (c) that the sale-deed executed in favour of Ram Sewak was not produced in evidence. 42. Relying on the aforesaid reasoning of the appellate Court, the counsel for the respondent submitted that the finding of the lower appellate Court cannot be said to be perverse, as it is based on relevant consideration. 43. I have carefully considered the plaint averments and the evidence led by the plaintiff in support of his case. In paragraph No. 3 of the plaint, the plaintiff has pleaded with regard to arrangement of Rs. 6,000/- as also for the tendering of the money on the defendant with a request to execute the sale-deed in his favour. No date has been mentioned in paragraph No. 3. In paragraph No. 4 the plaintiff states that he has requested the defendant to execute the sale-deed, but the defendant has been putting off the matter on one pretext or the other. In paragraph No. 6 of the plaint, the plaintiff has made a statement that the cause of action arose on 12.3.1976 when the plaintiff offered money to the defendant and requested him to execute the sale-deed and on subsequent dates. Though, the subsequent dates are not given in paragraph 6 of the plaint, but from the averments made in paragraph Nos. 3, 4 and 6, an inference could be drawn of repeated offers made by the plaintiff. Further since the suit itself was instituted on the last date i.e. 29.3.1976, an inference could be drawn that the offers were made prior to the dead line. 3, 4 and 6, an inference could be drawn of repeated offers made by the plaintiff. Further since the suit itself was instituted on the last date i.e. 29.3.1976, an inference could be drawn that the offers were made prior to the dead line. In this view of the matter, there was sufficient pleading so as to enable the plaintiff to lead evidence to prove that an offer was made by him to the defendant before the due date and that the amount was tendered by him. Later, this fact was proved by the plaintiff through his oral testimony, which became believable in view of the admission of the defendant, made during his cross-examination, that the plaintiff had sold another property to Ram Sewak before he had given notice to the plaintiff. Now, the date of the notice by the defendant becomes critical, which as per the record appears to be of the date 29.3.1976. This clearly goes to show that even as per the statement of the defendant the sale to Ram Sewak took place prior to 29.3.1976. Accordingly, I am of the view that there was sufficient pleading of the plaintiff so as to enable him to lead evidence to prove that he had arranged for the money prior to 29.3.1976 by selling off another property. Thus, I’m of the view that the evidence that the plaintiff tendered the money on 25.3.1976 was not at variance with the pleadings so as to render it inadmissible or unacceptable. Accordingly, the reasoning of the lower appellate Court that the evidence led by the plaintiff was at complete variance with the pleading of the plaintiff is not legally justified. 44. It is also interesting to find from the record that the plaintiff and the defendant were both examined before the Court on 28.11.1977, yet in the statement of the defendant there is no denial to the statement of the plaintiff that he had made an offer of Rs. 6000/- to the defendant on 25.3.1976 and had demanded for execution of the re-conveyance deed on which the defendant demanded an additional sum of Rs. 500/-. This was a very vital piece of evidence, which was not considered by the lower appellate Court. 45. 6000/- to the defendant on 25.3.1976 and had demanded for execution of the re-conveyance deed on which the defendant demanded an additional sum of Rs. 500/-. This was a very vital piece of evidence, which was not considered by the lower appellate Court. 45. As regards, the effect of non-mention in the plaint of the fact that a sale was effected in favour of Ram Sewak, I am of the opinion that the view taken by the lower appellate Court in this regard is not legally justified. Order VI Rule 2(1) of the C.P.C provides as under : “2. Pleading to state material facts and not evidence.— (1) Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved.” 46. From Sub-rule 1 of Rule 2 of Order VI, it is clear that the evidence by which the fact is to be proved need not be pleaded. In the instant case the material fact was the arrangement of money by the plaintiff, which he had pleaded. How he had arranged for the money was to be proved by evidence. Accordingly, the execution of the sale-deed in favour of Ram Sewak of another property for arranging the money was a matter of evidence and, as such, it was not required to be pleaded. Accordingly, the second reason adopted by the lower appellate Court in support of its finding is also not sound in law. 47. So far as the effect of non-production of the sale-deed is concerned, I’ am of the view that once the defendant had admitted the execution of the sale-deed and had not denied the sale of another property to Ram Sewak, which the plaintiff claimed that it was made for the purpose of arranging funds for re-conveyance of the property, there was no reason for the lower appellate Court to disbelieve the plaintiff and to non-suit him for non-production of the sale-deed. 48. 48. In the circumstances, I am of the view that the view taken by the trial Court that once the sale of another property was proved there was no reason to disbelieve the plaintiff’s case, is a logical conclusion whereas the finding of reversal recorded by the lower appellate Court is not legally justified. 49. Apart from above, the lower appellate Court failed to draw any inference from the date of the institution of the plaint, which in the instant case was the last day for making a demand for execution of the sale-deed. This conduct of the plaintiff disclosed the bona fides of the plaintiff. The lower appellate Court rather got swayed by irrelevant consideration like the fact that the defendant had sent notice on 29.3.1976. This notice was completely irrelevant inasmuch as there was nothing in the agreement that the sale-deed would be executed on 29.3.1976 nor there was any evidence that any party had, by a prior notice to the other, fixed the said date for execution of the sale-deed. 50. There is another aspect of the matter, which has not been taken note of by the Courts below. That is, the conduct of the defendant. The defendant was not interested in the execution of the re-conveyance deed, as would be apparent from his statement made during oral deposition before the trial Court, where he says that he is prepared to execute the sale-deed for Rs. 6000/- plus interest. In para 11 of his written statement he has sought for interest on Rs. 6000/- at the rate of Rs. 1% p. m. up to the date of payment. Likewise in para 12 of the grounds of appeal he has sought for Rs. 500/-. All these circumstances fortify the stand of the plaintiff that when he had offered money to the defendant, the defendant demanded an additional sum of Rs. 500/-. 51. In the case of Indira Kaur v. Sheo Lal, (1988) 2 SCC 488 , the Apex Court held that in determining the question of readiness and willingness the Court must examine the position of both parties. In that case the Apex Court considering the over all conduct of the parties had decreed the suit of specific performance when it had been dismissed by all the three Courts below. 52. In that case the Apex Court considering the over all conduct of the parties had decreed the suit of specific performance when it had been dismissed by all the three Courts below. 52. Considering the matter in its entirety and for the reasons discussed above I’ am of the considered view that the finding recorded by lower appellate Court to the effect that the plaintiff has not been able to establish that he was ready with the money is vitiated by adopting wrong principles of law while appreciating the evidence as also for non-consideration of the relevant material/evidence and the circumstances brought/ proved on record and, as such, is liable to be set aside. Thus, the question No. 2, as framed in this appeal, is decided against the defendant-respondent and in favour of the plaintiff-appellant. 53. For the answers rendered herein above, the judgment and decree of the lower appellate Court is liable to be set aside. The appeal is, accordingly, allowed. The judgment and decree dated 19.10.1978 passed by 6th Additional District Judge, Farrukhabad in Civil Appeal No. 10 of 1978 is hereby set aside and that the judgment decree dated 9.12.1977 passed by the Civil Judge, Farrukhabad in Civil Suit No. 48 of 1976 is hereby restored. The parties, however, shall bear their own costs. ———————