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2012 DIGILAW 943 (PAT)

Bhigunath Tiwari v. Bishundeo Tiwari

2012-07-06

MUNGESHWAR SAHOO

body2012
ORDER Heard the learned senior counsel Mr. Vishnu Dev Narayan on behalf of the appellant under Order 41 Rule 11 C.P.C. 2. The defendant appellant appellant has filed this second appeal against the judgment and decree of both the courts below decreeing the suit for specific performance of contract filed by the plaintiff respondent. 3. It appears that the plaintiff respondent instituted Title Suit No. 128 of 1987/ 152 of 2000 for specific performance of contract Ext.2 dated 9.5.1980 alleging that the suit property was sold to the defendant by terms of conditional sale dated 9.5.1980 Ext.-A. On the same date registered agreement was executed wherein it was agreed by the appellant that the property shall be re-transferred to the plaintiff within 7 years i.e. 30th Jeth 1987. The plaintiff always tendered the amount and requested the appellant to re-convey the property in favour of the plaintiff but he refused then he filed the suit. The defendant filed contesting written statement alleging that in fact the sale deed is out and out sale and the agreement to re-convey has not been signed by the plaintiff. The agreement to sale has already been signed by the appellant therefore, it is unilateral document which will not constitute contract under Section 10 of the Contract Act which cannot be enforced. 4. Both the courts below after trial held that the sale deed is conditional sale deed. Both the courts below held that the plaintiff was ready and willing to perform his part of the contract and the suit has been filed within time. Accordingly, it is not barred by law of limitation as such decreed plaintiff’s suit. 5. The learned counsel for the appellant raised three grounds. Firstly, that both the courts below have misinterpreted the sale deed and recorded a wrong finding that in fact it is a conditional sale. Secondly, although the document of re-conveyance is signed by the appellant only but then both the courts below held that it is enforceable specifically. Thirdly, the learned counsel submitted that in original plaint there was no mention about the statutory requirement under Section 16(C) of the Specific Relief Act but subsequently amendment was made which was allowed by the trial court. According to the learned counsel this amendment order is illegal which can be set aside. 6. Thirdly, the learned counsel submitted that in original plaint there was no mention about the statutory requirement under Section 16(C) of the Specific Relief Act but subsequently amendment was made which was allowed by the trial court. According to the learned counsel this amendment order is illegal which can be set aside. 6. It may be mentioned here that the appellants case is that the sale deed i.e. Ext. A in favour of him is out and out sale. Now therefore, even if it is accepted to be out and out sale then also because the agreement to re-convey has been executed on the same date and that there is condition about re-conveyance. In such view of the mater, whether the plaintiff will be entitled to decree for specific performance of contract will not be barred even if it is held that sale deed is out and out sale. In the present case, from perusal of the judgment of both the courts below it appears that none of the courts below have held that the sale deed is a mortgage by conditional sale. However, the finding has been recorded by both the courts below that it is conditional sale. In the case of Raj Kishore Vs. Prem Singh and others (2011) 1 SCC 657 the Apex Court has held that a bare reading of Section 58(C) of Transfer of Property Act would show that for a transaction to constitute mortgage by conditional sale it is necessary that the condition is embodied in the document that purports to effect the sale. That requirement is supported by proviso which admits of no exception. The sale deed executed by the plaintiff in that case before the Apex Court did not embodied any condition like the one referred to in Section 58 (C). In the present case also there is no such condition embodied. In the sale deed therefore, admittedly, the sale deed is not a mortgage by conditional sale in such view of the matter, the question raised by the learned counsel for the appellant has already been settled by the Apex Court but merely because the sale deed is out and out sale deed it will not bar the suit filed by the plaintiff for specific performance of the contract. So far the agreement is concerned the submission of the learned counsel for the appellant is that it is not signed by the plaintiff rather it has been signed by the appellant only and, therefore, the same cannot be enforced specifically. So far this submission is concerned the Apex Court in the case of Aloka Bose Vs. Pramatma Devi AIR 2009 SC 1527 has held that it cannot be said that unless agreement is signed by both the vendor and purchaser, it is not a valid contract. Even an oral agreement to sell is valid. If so the written agreement signed by one of the parties, if its evidences such an oral agreement will also be valid. Moreover, in India an agreement of sale signed by the vendor alone and deliver to the purchaser and accepted by the purchaser has always been considered to be a valid contract. Therefore, this point raised by the appellant is not substantial question of law because for being substantial a question of law must be debatable one and has not been settled by any statue or any binding precedent. Here this question has already been settled by the Apex Court. Therefore, the same needs no further decision. 7. So far the submission of the learned counsel that subsequent amendment was made regarding 16(C) of the Specific Relief Act. According to the learned counsel the amendment could not have been allowed because right had already accrued in favour of the defendant. It is well settled that the courts have unfettered power to allow amendment in the pleading at any stage. This unfettered power of the courts have been restricted by amendment of the Code of Civil Procedure in the year 2002 by providing a proviso to Order 6 Rule 17. That proviso will not be attracted in the present case because the suit has been filed in the year 1987 and amendment came in the year 2002. In such circumstances by reason of Section 16 Clause b of the Amendment Act 22 of 2002 the proviso will not be attracted as has been held by the Apex Court in (2009) 12 SCC 689 . Therefore, once the amendment is allowed the same will relate back to the date of filing of the suit vide (2009) 5 SCC 713 . In my opinion, therefore, the amendment order at this stage cannot be said to be illegal. Therefore, once the amendment is allowed the same will relate back to the date of filing of the suit vide (2009) 5 SCC 713 . In my opinion, therefore, the amendment order at this stage cannot be said to be illegal. In my opinion, therefore, it is also not a substantial question of law. 8. In view of the above discussion, in my opinion, there is no substantial question of law involved in this second appeal. Accordingly, this second appeal is dismissed.