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2012 DIGILAW 163 (CHH)

BHAGIRATHI DEVANGAN v. JHADURAM

2012-07-03

A.M.SAPRE, G.MINHAJUDDIN

body2012
JUDGMENT As per Hon'ble Shri Abhay Manohar Sapre, J. :- 1. Heard. 2. This is a first appeal filed by the plaintiff (appellant) under Section 96 of the Code of Civil Procedure against the judgment and decree dated 29.03.2005 passed in Civil Suit No. 16A/2004. 3. By the impugned judgment and decree, the learned trial Judge dismissed the appellant's (plaintiff) suit against the respondents (defendants), which was filed for claiming specific performance of a contract in relation to the subject matter of the suit properties. 4. So the short question that arises for consideration in this appeal is whether the learned trial Judge was justified in dismissing the appellant's suit, thereby, justified in declining to grant specific performance of a contract in relation to the suit properties specified in the agreement. 5. We need not burden our order by embarking upon the factual aspects of the case nor it is necessary to undertake the exercise of appreciating the evidence adduced by the parties in support of their case, which eventually led to dismissal of the suit, for the reason that, having heard the learned counsel for the parties and on perusal of the records of the case, we have formed an opinion that the appeal deserves to be allowed and while setting aside of the impugned judgment and decree, remand the case to the trial Court for deciding the suit afresh on merits in the light of our observations made infra. 6. We, however, consider it necessary to mention only those facts, which are necessary to sustain our order of remand and why the remand in this case is called for. 7. As stated supra, the appellant is the plaintiff, whereas, the respondents are the defendants. The plaintiff filed a suit against the defendants, out of which, this appeal arises; claiming specific performance of a contract in relation to the suit land bearing Khasra No.491 area 0.841 hectare situated in village Gogaon. It was the case of the plaintiff that he had entered into a contract with the defendants on 25.07.2002 for purchase of the said land for a total sum of Rs. 14,25,000/-. It was inter alia alleged that since the defendants failed to ensure the compliance of the terms of the contract and hence, the plaintiff was constrained to file a suit against the defendants claiming specific performance of a contract in relation to the suit land. 14,25,000/-. It was inter alia alleged that since the defendants failed to ensure the compliance of the terms of the contract and hence, the plaintiff was constrained to file a suit against the defendants claiming specific performance of a contract in relation to the suit land. The defendants have denied the claim of the plaintiff. 8. The trial Court framed issues arising out of the pleadings followed by the evidence adduced by the parties. As stated supra, the learned trial Judge dismissed the suit and declined to grant any relief to the plaintiff giving rise to filing of this appeal. 9. The trial Court had framed the following issues : Okkn iz’u fu”d”kZ 1- D;k oknh ds i{k esa izfroknh dzekad 1 o 2 ds }kjk fl) ugha 25&7&02 dks lekfJr lafonk fu”ikfnr dj izkIr jde 14]25]000@& :i;s dks 31&12&02 rd okilh dk vuqca/k Fkk \ 2- D;k oknh ds i{k es izfroknh dz- 1 o 2 }kjk 31&12&02 fl) ugha rd 14]25]000@& :i;s okilh uk fd;s tkus ij 31&1&03 rd okn Hkwfe dk iath;u dkjus dk vf/kdkjh gks x;k gS \ 3- D;k oknh izfroknh dz- 1 o 2 ls fodz;&i= fu”ikfnr fl) ugha djus ls badkj dj fn;s tkus ls 12]648@& :i;s dh {kfr LVkai ‘kqYd dk mBkuk iM+k gS \ 4- D;k oknh okn Hkwfe ij 25&7&02 ls dCtk eaas gS \ fl) ugha 5- D;k oknh izfroknh dzekad 1 o 2 ls iath;u djkus ls fl) ugha euk djus ij LVkai okilh ds dkj.k gqbZ {kfr 12]648@& :i;s dks ifudk vf/kdkjh gS \ 6- D;k oknh nkok dk lgh ewY;kadu fd;k gS \ gk¡ 7- D;k izfroknhx.k dh vKkurk dk ykHk mBkdj oknh 50 gk¡ :i;s dksjs LVkai ij NyiwoZd gLrk{kj djok fy;k gS \ 8- D;k izfroknhx.k oknh 2]500@& :i;s {kfriwfrZ jkf’k ikus fl) ugha ds vf/kdkjh gS \ 9- vU; lgk;rk ,oa O;; \ nkok lO;; [kkfjt 10. Mere perusal of the afore-quoted issues would go to show that the trial Court did not frame any issue on the question of readiness and willingness of the plaintiff in performance of the contract in question. Mere perusal of the afore-quoted issues would go to show that the trial Court did not frame any issue on the question of readiness and willingness of the plaintiff in performance of the contract in question. In other words, no issue on the question of readiness and willingness of the plaintiff to perform his part of the contract was framed and nor there was any issue as to who committed breach of contract and if so, of which term and obviously, therefore, no finding could be returned or was possible to have been returned by the trial Court on these material issues which led to dismissal of the suit. 11. Law on the issue of specific performance is well settled. It is governed by the provisions of Specific Relief Act read with Form No.47 of Appendix A appended to the Code of Civil Procedure. So far as requirement of readiness and willingness on the part of the plaintiff is concerned, it is provided in Section 16(c) of the Specific. Relief Act, which reads as under : 16. Personal bars to relief — Specific performance of a contract cannot be enforced in favour of a person. (a) who would not be entitled to recover compensation for its breach; or (b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or willfully acts at variance with, or in subversion of, the relation intended to be established by the contract; (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 of the performance of which has been prevented or waived by the defendant. Explanation - For the purpose of clause (c)— (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court; (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction." 12. Like wise Form No.47 of Appendix A in C.P.C. reads as under : SPECIFIC PERFORMANCE (No.1) (Title) A.B., the above named plaintiff, states as follows:- 1. Like wise Form No.47 of Appendix A in C.P.C. reads as under : 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." 13. It is, therefore, clear on mere perusal of Section 16 (c) read with Form No. 47 sin quo non for the plaintiff in case of claiming specific performance of a contract is to plead and prove that he has performed or has always been ready and willing to perform the essential terms of the contract on which he has filed a suit and which entitles him to claim decree for specific performance of a contract. In the absence of these material pleadings and evidence, issue and lastly the findings, the suit cannot either be dismissed or decreed or rather it cannot proceed. 14. We are constrained to observe that the learned trial Judge though dealt with the issue, but did not give any importance nor took note of these basic requirements of specific performance of a contract specified in Section 16 (c) of the Specific Relief Act coupled with Form No.47 contained in the Code of Civil Procedure. What was more distressing to note, is that the learned trial Judge did not care to frame issues which were required to be framed being the only material issue for deciding the rights of the parties keeping in view the requirement of Section 16 (c) read with Order 14 C.P.C. 15. In substance, in our view, the trial of suit was totally unsatisfactory. In substance, in our view, the trial of suit was totally unsatisfactory. We cannot countenance conducting of a trial, which contains inherent defects causing prejudice to the rights of the parties, because, the very object of framing issues is to allow the parties to know what they have to prove and what they have to disprove. If there was no issue perhaps there can be no finding. This is what has happened in this case. It is for these aforementioned reasons, we are of the considered view that this is a fit case for allowing the appeal, setting aside of the impugned judgment and decree and then to remand the case to the trial Court with a direction to allow the parties to amend the pleadings making proper averments, in case, if they so wish, keeping in view our observations and then, to frame specific issues as are required for deciding the suit for specific performance of a contract on the issue of readiness and willingness and then, commission of breach of terms of conditions and who has committed and also grant of alternative relief as provided in Section 22 of the Specific Relief Act and then, again, allow the parties to lead evidence on such issues, which are framed and then, decide the suit on merits. 16. Learned counsel for the respondents, however, urged that the remand should be limited i.e. only on the issue of readiness and willingness rather than to set-aside the whole decree. 17. We do not agree. 18. Looking to the nature of controversy, the manner in which the suit was decided and the fact that no issues were framed on the question of readiness and willingness, breaches committed by the parties, grant of alternative relief etc., a limited remand on a particular issue would cause further prejudice to the rights of the parties and therefore, this is a fit case where the wholesome remand alone is called for to direct the rights of the parties. 19. Accordingly and in the light of the aforesaid discussions, the appeal succeeds and is allowed in part. The impugned judgment and decree is set aside. The case is remanded to the trial Court for deciding the suit afresh on merits as indicated above. 20. 19. Accordingly and in the light of the aforesaid discussions, the appeal succeeds and is allowed in part. The impugned judgment and decree is set aside. The case is remanded to the trial Court for deciding the suit afresh on merits as indicated above. 20. Needless to observe that the trial Court will decide the suit on merits after taking into account the evidence already led in addition to the additional evidence which the parties would be leading after the remand, as directed above. 21. Since we have remanded the case after allowing the appeal and therefore, the appellant is entitled to claim refund of entire court fees paid by the appellant on the memorandum of appeal as provided by Section 13 of the Court Fees Act. 22. Registry is, therefore, directed to prepare the certificate of refund of entire court fees paid by the appellant in his name under the provisions of the Court Fees Act to enable the appellant to claim refund of the entire court fees. 23. Parties are directed to appear before the trial Court on 13th of August 2012. 24. Registry is directed to send the original records of the suit to the concerned Court below so as to reach the same before 13.08.2012. 25. No cost. Appeal Allowed.