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Madhya Pradesh High Court · body

2012 DIGILAW 990 (MP)

Seeta Devi Soni v. Sharad Kant Soni

2012-10-04

PRAKASH SHRIVASTAVA

body2012
JUDGMENT : Heard finally with consent. This second appeal under Section 100 of the CPC is at the instance of, defendant No. 1 in the suit challenging the judgment of the First Appellate Court dated 25-8-99 dismissing the Civil Appeal No. 33-A/99 and affirming the judgment of the Trial Court. The Trial Court by judgment dated 9-2-99 had decreed the suit for specific performance being Civil Suit No. 89-A/98 filed by the respondent No. 1. 2. The respondent No. 1 (plaintiff) had filed suit for specific performance pleading that the appellant had executed an agreement dated 26-7-91 for sale of the suit plot for a consideration of Rs. 21,000/- and had received 10,000/- in advance and the sale deed was to be executed within four months, but the appellant did not execute the sale deed and on 12-12-91 had declined to execute the sale deed. The notice dated 23-12-91 was given, but in spite of that the appellant did not appear before the Registrar to execute the sale deed. The appellant demanded the consideration amount @ Rs. 25/- per sq. ft. The respondent No. 1 was ready and willing to perform his part of the contract, but the appellant on 9-1-92 had given reply to the notice that she did not want to sell the said suit plot and stated that the agreement to sell was forged document, which was not signed by her. 3. The suit was opposed by the appellant denying the execution of the agreement and receipt of any advance consideration amount. It was stated that the relations between the appellant and respondent No. 1 are that of brother and sister and either respondent No. 1 fraudulently obtained her signature on the agreement or the signature are forged. 4. The Trial Court by the judgment dated 9-2-99 had decreed the.suit filed by the respondent No. 1 holding that appellant had executed the agreement dated 24-7-91 for sale of the suit plot and that the appellant with a view to obtain higher price, had not executed the sale deed. The First Appellate Court has affirmed the findings recorded by the Trial Court and dismissed the appeal. 5. The First Appellate Court has affirmed the findings recorded by the Trial Court and dismissed the appeal. 5. This Court vide order dated 28-8-2000 had admitted the present second appeal on the following substantial question of law :- "Whether in the absence of a finding that the plaintiff/respondent was ever willing and ready to perform hfs part of the contract, decree for specific performance of the contract passed in his favour, is bad in law and liable to be set aside." 6. - Learned Counsel appearing for the appellant submits that Trial Court had not framed any issue on readiness and willingness to perform the contract, therefore, no evidence was led by the parties and no finding has been recorded in this regard. The suit has not been decreed keeping in view of the requirement of provisions contained in Section 16 (C) of the Specific Relief Act. 7. Learned Counsel for the respondent supporting the impugned judgment submitted that Courts below have decreed the suit on the basis of the pleadings and evidence led by the parties, therefore, framing of issue is not necessary. He further submits that pleading relating to readiness and willingness is not specifically denied by the appellant in the written statement, which amounts to admission, therefore, I no issue and finding in this regard was required. 8. I have heard learned Counsel for the parties and perused the record. 9. A perusal of the judgment of the Trial Court indicates that Trial Court had neither framed any issue in respect of readiness and willingness on the part of the respondent No. 1 to perform his part of the contract nor the Trial Court he is recorded any finding in this regard. So far as the First Appellate Court is concerned, it has affirmed the judgment of the Trial Court without notice in the aforesaid aspect. Though, the First Appellate Court has made observation that respondent No. 1 was ready to perform his part of the contract, but the said observation is not in accordance with Section 16 (C) of the Specific Relief Act, nor it is supported by the evidence and there is no finding for willingness to perform the contract. 10. The Supreme Court in the matter of J.P. Builders Vs. 10. The Supreme Court in the matter of J.P. Builders Vs. A. Ramadas Rao, reported in (2011) 1 SCC 429 , while considering the requirement of Section 16 of the Specific Relief Act has held that in terms of Section 16 (C) of the Act, person seeking specific performance must prove that he has performed or has been ready and willing to perform the essential terms of the contract, which are to be performed by him. The distinction between readiness and willingness is that the former refers to financial capacity and the latter to the conduct of the plaintiff wanting performance. Section 16 (C) envisages that the plaintiff must plead and prove that he had performed or always been ready and willing to perform the essential terms of the contract. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance and while adjudging the same, Court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit alongwith other attending circumstances. It is also settled by the Supreme Court in the case of J.P. Builders (supra), even in the absence of the specific plea by.opposite party, it is the mandate of the statute that plaintiff has to comply with Section 16 (C) of the Act. Supreme Court in the matter of J.P. Builders (supra), has held as under :- "22. The words "ready" and "willing" imply that the person was prepared to carry out the terms of the contract. The distinction between "readiness" and "willingness" is that the former refers to financial capacity and the latter to the conduct of the plaintiff wanting performance. Generally, readiness is backed by willingness. 23. In N.P. Thirugnanam Vs. Dr. Jagan Mohan Rao, this Court held :- '5.......Section 16 (C) of the Act envisages that the plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms if the contract which are to be performed by him, other than those terms, the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the Court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the Court must take into consideration the conduct of the plaintiff prior and subsequent to-the filing of the suit along with other attending circumstances. 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 execution till date of the decree, he. must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The Court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract.' 24. In P. D'Souza Vs. Shondrilo Naidu, this Court observed that :- '19. It is disputable that in a suit for specific performance of contract the plaintiff must establish his readiness and willingness to perform his part of contract. The question as to whether the onus was discharged by the plaintiff or not will depend upon the facts and circumstances of each case. No straitjacket formula can be laid down in this behalf...... 21........The readiness and willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether the defendant did everything which was required of him to be done in terms of the agreement for sale.' 25. Section 16 (C) of the Specific Relief Act, 19'63 mandates "readiness and willingness" -on the part of the plaintiff and it is a condition precedent for obtaining relief of gram of specific performance. It is also clear that in a suit for specific performance, the plaintiff must allege and prove a continuous "readiness and willingness" to perform the contract on his part from the date of the contract. The onus is-on the plaintiff. It is also clear that in a suit for specific performance, the plaintiff must allege and prove a continuous "readiness and willingness" to perform the contract on his part from the date of the contract. The onus is-on the plaintiff. 26. It has been rightly considered by this Court in R.C. Chandiok Vs. Chuni Lal Sabharwal, that "readiness and willingness" cannot be treated as a straitjacket formula. This has to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned. 27. It is settled law that even in the absence of specific plea by the.opposite party, it is the mandate of the statute and the plaintiff has to comply with Section 16 (C) of the Specific Relief Act and when there is non-compliance with this statutory mandate, the Court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. "Readiness and willingness" to perform the part of the contract has to be determined/ascertained from the conduct of the parties." 11. It has also been settled by this Court that in a suit for specific performance, it is the statutory requirement and the duty of the Court to frame issue and address itself to the issue of readiness and willingness. Even if the defendant had not taken the defence, it is mandatory to the Court to frame issue with reference to Section 16 and decide it. The Division Bench of this Court in the matter of Sitararn Madanlal Saraogi Vs. Hemchand Bhagwandas Jain, reported in 1998 (1) MPLJ 561 , has held as under :- "8.. It was' incumbent on the plaintiff to state the readiness and willingness as that is the mandate of the law. This being the statutory requirement, the Court has a duty to frame an issue and address itself to the same. In the case of Surajsingh Vs. Sohanlal, reported in AIR 1981 All 330 , it has been held that even though the defendant has not taken the defence, it is mandatory that the Court should frame an issue with reference to Section 16 and decide the issue of readiness and willingness. The plaintiff has to succeed on such averments and proofs." 12. Sohanlal, reported in AIR 1981 All 330 , it has been held that even though the defendant has not taken the defence, it is mandatory that the Court should frame an issue with reference to Section 16 and decide the issue of readiness and willingness. The plaintiff has to succeed on such averments and proofs." 12. In the present case, the Trial Court has failed to frame any issue in respect of readiness and willingness on the part of the plaintiff to perform his part of the contract, though it was necessary for the Trial Court in view of the aforesaid judgment to frame such an issue. It is also found that the Trial Court has completely ignored the said aspect of the matter in as much as the Trial Court has also not; discussed the evidence and has not recorded any finding in respect of readiness and willingness. The observation of the First Appellate Court in respect of the readiness is not as per the requirement of Section 16 (C) of the Act. 13. Learned Counsel appearing for the respondent referring to Order 14 Rule 1 of the CPC has submitted that since the plea of readiness and willingness has not specifically denied, therefore, it was not necessary to frame the issue in this regard. Such a submission cannot be accepted in view of the judgments of the Supreme Court as well as judgment of this Court noted above. Even otherwise, contents of Para 3 of the plaint, which contained the pleading of readiness and willingness have been denied in written statement, therefore, it was necessary for the Courts below to consider the effect of such a denial. 14. Learned Counsel for the respondent has placed reliance upon the Single Bench judgment of this Court in the matter of Ganpat Rao Vs. 14. Learned Counsel for the respondent has placed reliance upon the Single Bench judgment of this Court in the matter of Ganpat Rao Vs. Ashok Rao, reported in 2004(4) M.P.H.T. 101 = 2004 (4) MPLJ 571 , by raising the plea that the trial will not be vitiated for not framing specific issue if parties understood each other's case and led evidence and contested the matter on that particular issue, but in the present case, there is no discussion of evidence led by the parties on this aspect of the matter in the judgments of the Courts below and there is no finding recorded by the Trial Court in respect of readiness and willingness, which could show that parties had understood each other's case and led evidence on the issue. 15. Learned Counsel for the respondent has further submitted that the plaint averments were not specifically denied by the appellant, therefore, that amounts to admission. In this regard, he has placed reliance upon the judgment of Supreme Court in the matter of Gautatn Samp Vs. Leela Jetly, reported in 2008 (4) MPLJ 113, but that was a case of clear admission was made by the respondent and, thereafter, an amendment was sought in the pleadings to resile from the admission, but that is not the present case. Even otherwise, in the suit for specific performance of the contract even in the absence of any defence by the defendant, plaintiff has to prove the statutory requirement contained in Section 16 (C) of the Act. For the same reason, it is found that the reliance of the Counsel for the respondent on the judgment of this Court in the matter of Mohd. Syed Vs. M/s Hindustan Petroleum -Corporation, reported in 2003(2) M.P.H.T. 145 (DB) = 2003 (II) MPJR 117 , is misplaced. 16. Learned Counsel for the respondent referring to the Division Bench judgment of this Court in the matter of Mohd. Naved Vs. M/s Hindustan Petroleum Corporation, reported in 2004(1) M.P.H.T. 16 , has submitted that the un-crossed examination-in-chief of the witness should be accepted, but such a submission at the stage of second appeal cannot be accepted specially when no issue was framed and by examining the evidence of the parties, the Trial Court has not recorded any finding on the issue of readiness and willingness. 17. 17. In view of the aforesaid analysis, the question of law framed by this Court is answered in favour of the appellant. Since, hi terms of the judgment in the matter of J.P. Builders (supra) and Sitaram Madanlal Saraogi (supra), the Trial Court has failed to comply with the mandatory requirement of framing of issue of readiness and willingness, therefore, the matter is remitted back to the Trial Court to frame an issue on the question of readiness and willingness and permitted the ' parties to lead evidence on that issue and to decide the said issue. The other findings, which are recorded" by the Courts below, will remain undisturbed and the Trial Court will pass the judgment and decree afresh after recording the finding on the issue of readiness and willingness. The judgments of the Court below are accordingly set aside and this second appeal is allowed to the above extent. No costs.