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2015 DIGILAW 1816 (HP)

Ganga Ram v. Luharu Ram

2015-12-08

RAJIV SHARMA

body2015
JUDGMENT : RAJIV SHARMA, J. 1. This Regular Second Appeal is directed against the judgment and decree dated 17.2.2005 rendered by the District Judge, Kullu in Civil Appeal No. 85 of 2004. 2. “Key facts” necessary for the adjudication of this appeal are that respondentplaintiff (hereinafter referred to as the “plaintiff” for convenience sake) filed a suit against the appellant-defendant (hereinafter referred to as the “defendants” for convenience sake) for specific performance. According to the averments made in the plaint, defendant was recorded as owner in possession of land measuring 1 bigha 14 biswansis being 4/5 share in Khasra No. 786/3. He agreed to sell his share for consideration of Rs. 1,15,000/- to the plaintiff. He received a sum of Rs. 1,10,000/- as earnest money. He executed agreement on 6.2.2003 in the presence of the witnesses. It was agreed that sale deed would be executed on or before 6.5.2003 on receipt of balance amount of Rs. 5,000/- from the plaintiff. Plaintiff was always ready and willing to perform his part of the agreement. He tendered Rs. 5,000/- to the defendant for execution of sale deed. However, he delayed the matter. Plaintiff issued notice to the defendant on 28.4.2003 requiring him to execute sale deed on 6.5.2003. Plaintiff was present in the office of Sub Registrar, Kullu on 6.5.2003. However, defendant did not come. 3. Suit was contested by the defendant. Defendant has admitted that he was owner of the suit property. He has denied that he had agreed to sell the suit land to the plaintiff for consideration of Rs. 1,15,000/-. He has also denied that he received Rs. 1,10,000/- from the plaintiff. 4. Issues were framed by the Civil Judge (Senior Division), Kullu on 8.1.2004. He decreed the suit on 23.9.2004 for possession by way of specific performance of agreement Ex.PW-2/A. Defendant filed an appeal before the District Judge, Kullu against the judgment and decree dated 23.9.2004. He dismissed the same on 17.2.2005. Hence, the present appeal. It was admitted on 22.8.2005 on the following substantial questions of law: 1. Whether the courts below are justified in granting a decree in favour of respondent/plaintiff in the absence of requisite pleadings and proof about readiness and willingness to perform part of the alleged contract at all material times by the respondent/plaintiff? 2. Whether the Ld. It was admitted on 22.8.2005 on the following substantial questions of law: 1. Whether the courts below are justified in granting a decree in favour of respondent/plaintiff in the absence of requisite pleadings and proof about readiness and willingness to perform part of the alleged contract at all material times by the respondent/plaintiff? 2. Whether the Ld. Trial court has failed to appreciate that consideration is passed whereas endorsement acknowledging the receipt of amount was not signed by the defendant? 3. Whether the transaction on the face of it is fictitious? 5. Mr. Ravinder Thakur, learned counsel for the appellant, on the basis of the substantial questions of law framed, has vehemently argued that the plaintiff has failed to prove that he was ready and willing to perform his part of contract. He has also contended that his client has never received earnest money. The transaction on the face of it was fictitious. 6. Mr. Sunil Mohan Goel, learned counsel for the respondent has supported the judgments and decrees passed by both the courts below. 7. I have heard the learned counsel for the parties and have gone through the records carefully. 8. Since all the substantial questions of law are interconnected and interlinked the same are taken up together for determination to avoid repetition of discussion of evidence. 9. Plaintiff has appeared as PW-1. According to him, defendant agreed to sell the suit land in the sum of Rs. 1,15,000/-. He executed agreement to sell. The agreement to sell was scribed by Sita Ram, Document Writer in the presence of Bhoop Singh and Nirat Ram, which was admitted to be correct by both the parties and after admitting the contents of the agreement as true and correct both the parties signed the same. A sum of Rs. 1,10,000/- was paid to the defendant in presence of witnesses. The defendant agreed to execute and register the sale deed within three months. He was ready and still ready and willing to make the payment of remaining amount of sale consideration to get the sale deed executed in his favour. He also deposited Rs. 5,000/- in the court vide challan Ex.PA. 10. PW-2 Sita Ram is the Document Writer. He has scribed the agreement to sell Ex.PW-2/A on 6.2.2003. It was scribed at the instance of defendant. The defendant agreed to sell the suit land in the sum of Rs. He also deposited Rs. 5,000/- in the court vide challan Ex.PA. 10. PW-2 Sita Ram is the Document Writer. He has scribed the agreement to sell Ex.PW-2/A on 6.2.2003. It was scribed at the instance of defendant. The defendant agreed to sell the suit land in the sum of Rs. 1,15,000/- in favour of the plaintiff. The agreement was scribed by him and the contents of the same were read over and explained to the parties. The plaintiff paid a sum of Rs. 1,10,000/- as earnest money and promised to pay remaining amount of sale consideration of Rs. 5,000/- at the time of execution of sale deed. Defendant singed the agreement to sell on 6.2.2003 in the presence of Bhoop Singh and Nirat Ram and Loharu Ram also signed the agreement. The agreement to sell was entered by him in the register kept and maintained by him. 11. PW-3 Bhoop Singh is one of the attesting witnesses to the agreement to sell Ex.PW-2/A. He has supported the version of PW-1 Loharu Ram and PW-2 Sita Ram. According to him, defendant agreed to sell the suit land in the sum of Rs. 1,15,000/- to the plaintiff. Agreement was written by PW-2 Sita Ram. The contents of the same were read over by PW-2 Sita Ram. The parties, after admitting the same to be correct, signed the agreement to sell. Defendant received a sum of Rs. 1,10,000/- as earnest money. The agreement was scribed at the instance of defendant. 12. Defendant has appeared as DW-1. In his cross-examination, he has admitted that he has no enmity with PW-2 Sita Ram and PW-3 Bhoop Singh. He has not led any evidence to show that the agreement to sell Ex.PW-2/A was forged or fictitious. Rather, agreement to sell Ex.PW-2/A also bears endorsement regarding receipt of Rs. 1,10,000/-. 13. It has also come on record that the plaintiff always remained ready and willing to perform his part of contract. Notice was also issued to the defendant to execute sale deed on or before 6.5.2003. A sum of Rs. 5,000/- was deposited in the court. The plaintiff was present in the office of Sub-Registrar, Kullu but the defendant did not come to execute the sale deed. Defendant had agreed to sell the suit land for a consideration of Rs. 1,15,000/-. He had received a sum of Rs. 1,10,000/- as earnest money, as per endorsement. A sum of Rs. 5,000/- was deposited in the court. The plaintiff was present in the office of Sub-Registrar, Kullu but the defendant did not come to execute the sale deed. Defendant had agreed to sell the suit land for a consideration of Rs. 1,15,000/-. He had received a sum of Rs. 1,10,000/- as earnest money, as per endorsement. The plaintiff has also averred and proved that he was ready and willing to perform his part of contract. 14. Their Lordships of the Hon'ble Supreme Court in Sukhbir Singh and others vs. Brij Pal Singh and others Bihar, AIR 1996 SC 2510 have held that law is not in doubt and it is not a condition that the respondent should have ready cash with him. The fact that he attended the Sub-Registrar's office to have the sale deed executed and waited for the petitioner to attend the office of the Sub-Registrar is a positive fact to prove that he had necessary funds to pass on consideration and had with him the needed money for payment at the time of registration. Their Lordships have held as under: “[5] Law is not in doubt and it is not a condition that the respondents should have ready cash with them. The fact that they attended the Sub-Registrar's office to have the sale deed executed and waited for the petitioners to attend the office of the Sub-Registrar is a positive fact to prove that they had necessary funds to pass on consideration and had with them the needed money with them for payment at the time of registration. It is sufficient for the respondents to establish that they had the capacity to pay the sale consideration. It is not necessary that they should always carry the money with them from the date of the suit till date of the decree. It would, therefore, be clear that the courts below have appropriately exercised their discretion for granting the relief of specific performance to the respondents on sound principles of law.” 15. Their Lordships of the Hon'ble Supreme Court in Motilal Jain vs Smt. Ramdasi Devi and others, AIR 2000 SC 2408 have held that an averment of readiness and willingness in the plaint is not a mathematical formula which should only be in specific words. Their Lordships of the Hon'ble Supreme Court in Motilal Jain vs Smt. Ramdasi Devi and others, AIR 2000 SC 2408 have held that an averment of readiness and willingness in the plaint is not a mathematical formula which should only be in specific words. If the averments in the plaint as a whole do clearly indicate the readiness and willingness of the plaintiff to fulfill his part of the obligations under the contract which is subject matter of the suit, the fact that they are differently worded will not militate against the readiness and willingness of the plaintiff in a suit of specific performance of contract for sale: “[9] That decision was relied upon by a three Judges Bench of this Court in Syed Dastagir's case (1999 AIR SCW 2959 : AIR 1999 SC 3029 ) (supra), wherein it was held that 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 one's case for a relief. It is pointed out that in India most of the pleas are drafted by counsel and hence they inevitably differ from one to the other; thus, to gather true spirit behind a plea it should be read as a whole and to test whether the plaintiff has performed his obligations, one has to see the pith and substance of the plea. It was observed "Unless a statute specifically requires 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) of the Specific Relief Act, 1963 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." It is thus clear that an averment of readiness and willingness in the plaint is not a mathematical formula which should only be in specific words. If the averments in the plaint as a whole do clearly indicate the readiness and willingness of the plaintiff to fulfill his part of the obligations under the contract which is subject-matter of the suit, the fact that they are differently worded will not militate against the readiness and willingness of the plaintiff in a suit of specific performance of contract for sale.” 16. Both the courts below have correctly appreciated the oral as well as documentary evidence led by the parties and there is no need to interfere with the well reasoned judgments and decrees passed by both the courts below. 17. The substantial questions of law are answered accordingly. 18. In view of the analysis and discussion made hereinabove, there is no merit in the present appeal and the same is dismissed. Pending application (s), if any, also stands disposed of. There shall, however, be no order as to costs.