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2018 DIGILAW 375 (RAJ)

Brij Mohan Divedi S/o Shri Jeewan Lal v. Shikhar Chand S/o Shri Laddulal

2018-02-01

ALOK SHARMA

body2018
JUDGMENT : ALOK SHARMA, J. 1. Under challenge in this second appeal at the instance of the petitioner-defendant- subsequent purchaser (hereafter the defendant-subsequent purchaser) is the judgment and decree dated 26.9.1994 passed by Civil Judge (Sr. Division), Sawai Madhopur in Civil Regular Appeal No. 5/1991 (64/1980) affirming the judgment and decree dated 22.5.1980 passed by Munsiff, Sawai Madhopur in Civil Suit No. (186/71) 24/1980 by which the suit for specific performance of the agreement to sell dated 8.6.1968 executed by Kalyanmal and Chhitar Mal the respondents-defendants (hereafter defendant-vendor) in favour of Shikhar Chand, the respondent-plaintiff-vendee (hereafter the plaintiff-vendee) was decreed. 2. The facts of the case are that the plaintiff as the vendee under the agreement to sell dated 8.6.1968 on 8.9.1971 filed a suit for specific performance of the agreement to sell allegedly executed by the defendant-vendor in respect of agricultural land in khasra no. 1183, 1370 and 1372 agreegating to 7 bighas 19 biswas for a consideration of Rs. 3000/-. The plaintiff’s case was that he was a money lender and an amount of Rs. 4,000/- under pro-note dated 20.8.1968 and a further amount of Rs. 1730/- under pro-note dated 21.8.1968 were due and owing against the defendant-vendor. It was stated that as against the aforesaid outstanding amount of Rs. 5730/- the defendant had agreed to sell by a registered sale deed his 7 bighas 19 biswas of land under the agreement to sell dated 8.6.1968 and also share the standing crop in equal measure or pay the plaintiff a sum of Rs. 500/- in lieu thereof. It was stated by the plaintiff-vendee that the defendant-vendor however despite the agreement to sell dated 8.6.1968 refused to execute the requisite registered sale deed. Hence the suit for specific performance which be decreed. 3. The defendants-vendors Kalyan and Chhitar Mal filed their written statement of denial. It was stated that purported agreement to sell dated 8.6.1968 was deceptively obtained as Kalyan had only signed certain documents pertaining to a loan transaction with the plaintiff-vendee admittedly a money lender. 4. It appears that during the pendency of the suit, one Brijmohan Divedi (now appellant before this Court) purchased the said land and was impleaded as a party defendant in the suit. Kalyan expired during the pendency of the suit and was substituted by his legal heirs, albeit his son Chhitar was already on record as defendant no. 2 in the suit. Kalyan expired during the pendency of the suit and was substituted by his legal heirs, albeit his son Chhitar was already on record as defendant no. 2 in the suit. 5. The trial court framed 10 issues and considering the competing evidence of the plaintiff and the defendants vide its judgment and decree dated 22.5.1980, decreed the suit for specific performance of the agreement to sell dated 8.6.1968. It held that the agreement to sell dated 8.6.1968 had been signed by Kalyan in the capacity as Karta and was also binding on his son Chhitar and his other children. 6. Aggrieved of the judgment and decree dated 22.5.1980 passed by Munsiff, Sawai Madhopur in Civil Suit No. (186/71) 24/1980, three appeals were filed. One by Chhitarmal and Others, the other by Shikhar Chand and the third by the appellant Brij Mohan as the subsequent purchaser. The LRs of Kalyan including Chhitar were impleaded as proforma-respondents in the appeal of the subsequent purchaser. The first appellate court vide its judgment and decree dated 22.5.1980 has affirmed the judgment passed by the Munsiff, Sawai Madhopur but holding that even though Chhitar had not signed the agreement to sell dated 8.6.1968, yet it was of no consequence as in the khasra girdawari, the sole possession was of Kalyan and having been impleaded in the proceedings as Kalyan’s LR following his death, Chhitar was bound to execute the sale deed and have it registered in terms of the agreement to sell dated 8.6.1968, as had been decreed by the trial court. 7. Hence this second appeal under Section 100 CPC at the instance of Brij Mohan, the subsequent purchaser. 8. On 24.3.2006, the appeal was admitted and the following substantial questions of law framed:- “Whether in the absence of readiness and willingness and non-appearance of plaintiff in the witness box, the decree of specific performance could have been passed in favour of plaintiff? 9. Mr. M.M. Ranjan, Sr. Counsel appearing with Mr. Rohan Agarwal for the appellant emphatically submitted that apart of proof of the agreement to sell having lawfully been executed, in a suit for specific performance, the readiness and willingness of a vendee has to be proved right from the date of execution of the agreement to sell till the date of passing of the decree by the court. Mr. Rohan Agarwal for the appellant emphatically submitted that apart of proof of the agreement to sell having lawfully been executed, in a suit for specific performance, the readiness and willingness of a vendee has to be proved right from the date of execution of the agreement to sell till the date of passing of the decree by the court. Mr. M.M. Ranjan, submitted that in proof of his readiness and willingness, the plaintiff himself has to enter the witness box and cannot be substituted by his power of attorney for the purpose of proof of readiness and willingness. In support of his contention, Mr. M.Mr. Ranjan relied upon the judgment of Apex Court in the case of Man Kaur (Dead) by LRs. vs. Hartar Singh Sangha, (2010) 10 SCC 512 particularly on paragraphs 14 to 24 thereof to submit that the status of plaintiff in a suit for specific performance is like that of a landlord in an eviction suit filed inter-alia on the ground of bona-fide and reasonable necessity. Mr. Ranjan submitted that for such suits, it is essential for the plaintiff to prove/establish his state of mind. In a suit for specific performance, with regard to his readiness and willingness to abide by the terms of an agreement to sell qua the immovable property and in an eviction suit with regard to his bona-fide and reasonable necessity. It was submitted that the Apex Court has held that for this the plaintiff necessarily has to enter the witness box and be subjected to cross-examination as to his readiness and willingness. Authorizing a power of attorney to do so is of no avail and evidence of such power of attorney cannot be substituted for that of the vendee’s in proof of his readiness and willingness. Mr. M.M. Ranjan conceded that it is indeed true that the rule against taking on record the evidence of power of attorney for the plaintiff in a suit for specific performance is not an absolute rule and such evidence can be taken on record in exceptional cases if the power of attorney is from the immediate family of the plaintiff such as husband/wife, exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad who have been involved in the transaction from the very inception. Further, Mr. M.M. Ranjan pointed out that evidence of the power of attorney on the donor’s state of mind can be admissible as held by the Apex Court where the power of attorney belongs to the immediate family of the plaintiff such as husband/wife exclusively managing the affairs of his/her spouse. Mr. M.M. Ranjan submitted that however in the instant case, Duli Chand, the power of attorney of the plaintiff Shikhar Chand was his brother and with no proof of his exclusively managing Shikhar Chand’s affairs. In fact contrary to such claim, the agreement to sell dated 8.6.1968 was signed by Shikhar Chand himself and NOT Duli Chand on his behalf. Mr. M.M. Ranjan submitted that yet admittedly Shikhar Chand the plaintiff did not enter the witness box and therefore failed to prove his readiness and willingness for performance of the conditions of the agreement to sell dated 8.6.1968, as statutorily warranted under Section 16(c) of the Specific Relief Act, 1963. The suit for specific performance thus could not have been decreed, he submitted and the courts below erred in yet exercising their jurisdiction and declaration in so doing. 10. Mr. M.M. Ranjan, further submitted that in any event even the pleadings of the plaintiff in his suit for specific performance were not in conformity with Order 6 Rule 3 CPC. He submitted that Order 6 Rule 3 CPC provides that when applicable, forms of Appendix-A are to be used for pleadings. From here, drawing the court’s attention to Form 47 in Appendix-A to CPC, Mr. M.M. Ranjan submitted that it was essential for the plaintiff to aver in his plaint that he had approached the vendors in the agreement to sell dated 8.6.1968 and notified them of his readiness and willingness to have the sale deed qua the agreement to sell dated 8.6.1968 executed/registered on his costs. Mr. M.M. Ranjan submitted that in fact in the entire plaint, no averment was at all made that the plaintiff was ready and willing to perform his part of the contract under agreement to sell dated 8.6.1968. Mr. M.M. Ranjan submitted that in fact in the entire plaint, no averment was at all made that the plaintiff was ready and willing to perform his part of the contract under agreement to sell dated 8.6.1968. He submitted that the Apex Court in the case of Padmakumari and Others vs. Dasayyan and Others, (2015) 8 SCC 695 has held that where the plaint does not disclose compliance with the legal requirement, which is mandatory under Section 16(c) of the Specific Relief Act, 1963 in terms of Form 47 in Appendix 1 of the CPC, a decree of specific performance cannot be granted and where it is yet so, it would be an error of jurisdiction, erroneous in law and liable to be set-aside. 11. Mr. M.M. Ranjan then submitted that aside of a decree for specific performance in respect of an agreement to sell without requisite pleadings and proof not being sustainable, even otherwise such a decree cannot be issued as a matter of course even on evidence being on record but instead lies in the discretion of the trial court to so do with reference to the surrounding fact and circumstance of the case. Mr. M.M. Ranjan submitted that on the plaintiff’s own admission in the suit, he was engaged in the business of money lending, the defendant a marginal farmer was indebted to him for a sum of approximately Rs. 5730/- and it was towards the discharge of the aforesaid debt that the agreement to sell dated 8.6.1968 had come to be executed. Mr. M.M. Ranjan submitted that from the plaintiff’s own case, it thus apparent that the agreement to sell, even if taken at its face value, was in pursuance of a distress sale by a marginal farmer and that fact by itself ought to have been sufficient for the trial court and the appellate court to not exercise their discretion and eschew decreeing the suit of specific performance of the agreement to sell by the defendants of their agricultural land which was their sole source of sustenance. In support of his contention, Mr. In support of his contention, Mr. Ranjan relied upon the judgment of Apex Court in the case of Jayakantham and Others vs. Abaykumar, (2017) 5 SCC 178 where Apex Court after taking into consideration of its earlier multiple judgments, held that where an agreement to sell immovable property is an outcome of the vendor’s distress which entails an unfair advantage to the vendee, it would be inequitable to decree a suit laid for specific performance of such an agreement to sell and hence court’s discretion to so do under section 20 of the Specific Relief Act, 1963 (Act of 1963) should not be exercised. Mr. M.M. Ranjan submitted that in Jayakantham and others (supra), it was proved that the plaintiff who laid the suit for specific performance was carrying on the business of money lending, the defendant a borrower in distress and on this count, the suit for specific performance was not decreed in the discretion of the court. 12. Per Contra, Mr. Shashi Kant Saini appearing for the plaintiff, however, supported the judgment and decree dated 22.5.1980 passed by the trial court and affirmed by the appellate court on 26.9.1994. He emphatically submitted that for one it is not open for the defendant in the facts of the case to set up a case of the plaintiff’s suit for specific performance being liable to fail on count of readiness and willingness not being pleaded. Mr. Shashi Kant Saini submitted that in-fact no issue as to the readiness and willingness of the plaintiff to execute his part / obligations under the agreement to sell dated 8.6.1968 was even framed as it was not required in view of the entire consideration for the purchase of the suit land having admittedly passed to the defendant under the agreement to sell dated 8.6.1968 which by itself was indicative of the plaintiff’s readiness and willingness. On the issue of the plaintiff not entering the witness box and instead his power of attorney so doing in support of the plaint, relying on the judgment of Apex Court in the case of Damodar Lal vs. Sohan Devi and Others, (2016) 3 SCC 78 . Mr. On the issue of the plaintiff not entering the witness box and instead his power of attorney so doing in support of the plaint, relying on the judgment of Apex Court in the case of Damodar Lal vs. Sohan Devi and Others, (2016) 3 SCC 78 . Mr. Shashi Kant Saini submitted that where a fact is not in the exclusive personal knowledge of the plaintiff, it can be brought on record as evidence laid by a power of attorney holder, who is conversant with the facts of the transaction on which a case is founded. It was submitted that in the instant case, Duli Chand, power of attorney holder of the plaintiff Shikhar Chand who entered the witness box in lieu of the plaintiff Shikhar Chand was his real brother, both being sons of Laddu Lal, was in the know of the business transactions of Shikhar Chand and hence his evidence on his behalf qua the agreement to sell dated 8.6.1968 before the trial court on the plaintiff’s readiness and willingness was admissible. Mr. Shashi Kant Saini relied upon the judgment of the Apex Court in the case of Man Kaur (Dead) by LRs (supra) to submit that in para 18 (g) thereof the Apex Court has contemplated the situation of a Power of Attorney Holder, who is a close family member entering the witness box on behalf of the plaintiff even in a suit for specific performance. 13. Mr. Shashi Kant Saini, then submitted that this appeal at the instance of the appellant, admittedly a subsequent purchaser during the pendency of the suit is not maintainable. He submitted that the plea of alleged non readiness and willingness of the plaintiff to perform his part of an agreement to sell, qua immovable property on which the defence in a suit for specific performance is founded, is personal to the vendor and cannot be appropriated by the subsequent purchaser, whose only defence in such a suit can be is that he had no prior knowledge of the vendor’s alleged agreement to sell with the plaintiff and purchased the property without notice of such agreement for valuable consideration. 14. Mr. 14. Mr. M.M. Ranjan counsel for the defendant, however, submitted that the contention of the counsel for the plaintiff as to the non maintainability of the appeal at the instance of the subsequent purchaser appears to be based on the two Judge Bench judgment of the Apex Court in the case of Jugraj Singh vs. Labh Singh, AIR 1995 SC 945 , which has been held to be erroneous by a three Judge Bench judgment of the Apex Court in the case of Ram Awadh (dead) by LRs. and Others vs. Achhaibar Dubey and Another, AIR 2000 SC 860 . It was submitted that the Apex Court in Ram Awadh (dead) by LRs (supra) held that it was open to any defendant in a suit for specific performance to contend that the mandatory requirement of Section 16(c) of the Specific Relief Act, 1963 had not been complied with. Mr. M.M. Ranjan submitted that all grounds in defence to a suit for specific performance are thus open to a subsequent purchaser impleaded as a defendant in a suit for specific performance. This second appeal at his instance is thus maintainable, he submitted. 15. Heard. Considered. 16. At the outset objection of counsel for the plaintiff-vendee as to the maintainability of the second appeal at the instance of subsequent purchaser impleaded as defendant in the underlying suit for specific performance deserves to be rejected in view of the judgment of the Apex Court in the case of Ram Awadh (dead) by LRs and Others vs. Achhaibar Dubey and Another (supra). It is so. 17. Admittedly in the plaint, no averment of readiness and willingness has been set-out by the plaintiff nor it has been stated that the defendant had notice of the readiness and willingness of the plaintiff to perform his part of agreement to sell dated 8.6.1968 i.e. towards execution and registration of the sale deed at his cost. It is so. 17. Admittedly in the plaint, no averment of readiness and willingness has been set-out by the plaintiff nor it has been stated that the defendant had notice of the readiness and willingness of the plaintiff to perform his part of agreement to sell dated 8.6.1968 i.e. towards execution and registration of the sale deed at his cost. I am of the considered view that this flaw in the pleadings of the plaintiff is fatal in view of the judgment of the Apex Court in the case of Kumar and Others vs. Dasayyan and Others (supra) where it has been held with reference to Order 6 Rule 3 CPC readwith Form 47 of Appendix A of CPC that in a suit for specific performance, not only the plaintiff has to categorically plead his readiness and willingness to perform his part of the agreement to sell, but also plead that the defendant had notice thereof. Besides, this fatal flaw in the plaintiff’s pleadings, in the instant case he did not even enter the witness box to prove his purported readiness and willingness, if at all he could so do without the requisite averments in the plaint. Instead the plaintiff’s power of attorney stood on his behalf in the witness box. That evidence of the power of attorney holder in respect of matter of the plaintiff’s state of mind i.e. of his readiness and willingness to perform the agreement to sell dated 8.6.1968 at all times could not be admissible. To this conclusion, the judgments of the Apex Court in the case of Man Kaur (Dead) (supra) attracts on all fours. Hence neither readiness and willingness having been averred in the plaint, nor plaint stating that the defendant had notice of the tenant’s readiness and willingness nor the plaintiff entering the witness box to prove his state of mind as to his readiness and willingness nor being available to be cross-examined thereon, I am of the considered view that the suit for specific performance was liable to be dismissed. 18. Besides and most importantly, from the facts of the case and evidence on record, it is evident that the defendant a marginal farmer was indebted to the plaintiff, who was admittedly a money lender. The agreement to sell dated 8.6.1968 was under distress evidently executed for partly discharging the debt of the defendant vendor to the plaintiff vendee. 18. Besides and most importantly, from the facts of the case and evidence on record, it is evident that the defendant a marginal farmer was indebted to the plaintiff, who was admittedly a money lender. The agreement to sell dated 8.6.1968 was under distress evidently executed for partly discharging the debt of the defendant vendor to the plaintiff vendee. This situation therefore evidently gave the plaintiff vendee an unfair advantage over the defendant-vendor. As held in the case of Jayakantham and Others (supra) decided by the Apex Court a money lender having an unfair advantage over the borrower and having entered into an agreement to sell qua immovable property with him cannot in the discretion of the court be entitled to a decree of specific performance. 19. The upshot of the above discussion is that the judgment and decree dated 26.9.1994 passed by Civil Judge (Sr. Division), Sawai Madhopur in Civil Regular Appeal No. 5/1991 (64/1980) affirming the judgment and decree dated 22.5.1980 decreeing the plaintiff’s suit for specific performance of the agreement to sell dated 8.6.1968 is set-aside. However to compensate the respondent-plaintiff-vendee, Mr. Ranjan, counsel for the defendant on instructions has agreed that the defendant-subsequent purchaser, the appellant herein shall pay Rs. 3.00 lakh (Rs. Three Lakh) in aggregate to the plaintiff-vendee within three months from today as compensation in lieu of the amount of Rs. 3000/- paid to the defendants Kalyan (now deceased) by the plaintiff and accrued interest thereof. It is accordingly directed. It is further directed that in the event of non payment of Rs. 3.00 lakhs as recorded above within three months from today, the aforesaid amount thereafter shall carry interest @ 12% p.a. compounded yearly and the suit property remain charged to this obligation till the date of payment of the amount due as above. 20. Second appeal filed by the defendant is disposed of accordingly.