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2023 DIGILAW 1270 (RAJ)

Hari Lal v. Bhoori Devi

2023-07-03

REKHA BORANA

body2023
ORDER : 1. The present regular appeal has been preferred against the judgment and decree dated 30.03.1990 passed by the District Judge, Jalore in Regular Suit No. 02/1982 whereby the suit for specific performance of contract as preferred by the plaintiff respondents had been decreed. 2. The case of the plaintiff was that an agreement to sell dated 29.01.1974 was executed by defendant Dharam Chand in favour of plaintiff Bhuri Devi with respect to two plots at Shivaji Nagar Colony, Jalore. The said plots were agreed to be sold for a consideration of Rs.11,000/- out of which Rs.5,001/- was paid on the date of agreement itself that is, 29.01.1974, as advance. The remaining amount of Rs.5,999/- was agreed to be paid at the time of execution of the sale deed. It was also agreed between the parties that the defendant would get the sale deeds of the plots in question from the Municipal Board, Jalore within a period of six months and thereafter he would execute the sale deeds in favour of the plaintiff on payment of the remaining consideration amount. 3. The sale deeds were issued by the Municipal Board on 25.07.1979 and 26.07.1979 respectively in favour of the defendant but he, thereafter refused to execute the sale deeds in favour of the plaintiff and hence the plaintiff served notice dated 31.05.1980 on him. Despite the notice being served, the defendant failed to execute the sale deeds in her favour and therefore, the present suit for specific performance of contract with a prayer to direct the defendant to execute the sale deeds in her favour and in alternate, with a prayer for refund of the advance amount with interest, has been preferred. 4. Written statement was filed by defendant Dharam Chand wherein the factum of the agreement to sell was admitted but it was averred that the document dated 29.01.74 as placed on record by the plaintiff was a forged one. It was pleaded that the actual agreement was for an amount of Rs.51,000/- and not Rs.11,000/- as averred by the plaintiffs. 4. Written statement was filed by defendant Dharam Chand wherein the factum of the agreement to sell was admitted but it was averred that the document dated 29.01.74 as placed on record by the plaintiff was a forged one. It was pleaded that the actual agreement was for an amount of Rs.51,000/- and not Rs.11,000/- as averred by the plaintiffs. The case of the defendant was that Rs.5,001/- was paid in advance and the remaining amount was to be paid after a period of six months at the time of execution of the sale deeds; the six months' time being accorded by the plaintiffs to the defendant to get the sale deeds issued in his favour from the Municipal Board. However, the sale deeds were not issued by the Municipal Board within a period of six months and therefore, the defendant offered repayment of the advance amount to the plaintiff or in the alternate, it was requested by the defendant that the remaining consideration amount be paid to him else the agreement would be deemed to be cancelled. The plaintiff refused to pay the remaining consideration amount and asked for cancellation of the agreement. Therefore, the agreement stood cancelled on 15.08.1974 and hence the plaintiff was not entitled for performance of any contract in her favour. 5. The plaintiff refused to pay the remaining consideration amount and asked for cancellation of the agreement. Therefore, the agreement stood cancelled on 15.08.1974 and hence the plaintiff was not entitled for performance of any contract in her favour. 5. On basis of the pleadings as made by both the parties, the learned trial Court proceeded on to frame the following eight issues: ^^¼1½ D;k izfroknh us fooknxzLr IykWV :- 11000@& esa oknhx.k dks nsus dk bdjkj dj fnukad 29&1&1974 dks :- 5001@& oknhx.k ls izkIr dj oknhx.k ds gd esa fooknkLin bdjkj ukek laikfnr fd;k\ ¼2½ D;k izfroknh ;g dg dj jftLVMZ cspkuukek oknhx.k ds i{k esa laikfnr djus ls budkj djrk jgk fd uxjikfydk ls fooknxzLr IykWVl ds lEcU/k esa mls iV~Vk izkIr ugha gqvk gS vkSj tqykbZ 1979 esa iV~Vk feyus ij Hkh vafre ckj 5&5&1980 dks cspkuukek jftLVªh djkus ls budkj fd;k vkSj blfy, nkok vof/k vUnj gS\ ¼3½ D;k izfroknh oknhx.k ds i{k esa fooknxzLr IykWV~l ds lEcU/k esa cspku ukek jftLVªh djkus ds fy, ck/; gS\ ¼4½ D;k fooknxzLr IykWV~l oknhx.k dks :- 51000@& foØ; djus dk bdjkj izfroknh us fd;k Fkk vkSj fnukad 29&1&1974 dks oknhx.k ls :- 5000@& izkIr dj ckdh jkf”k N% eghus esa vnk fd, tkus o izfroknh }kjk N% ekg ds uxjikfydk ls iV~Vk izkIr djus ij jftLVMZ cspkuukek laikfnr djkus ds bdjkj ds lkFk fnukad 29&1&1974 dks ,d vU; bdjkjukek fy[kk x;k Fkk\ ¼5½ D;k izfroknh fook|d la[;k 4 eas of.kZr vU; bdjkjukesa dh ikyuk ds fy, Hkh ck/; ugha gS] D;ksafd oknhx.k us N% ekg esa ckdh jkf”k :- 45999@& vnk ugha dh o izfroknh dks uxjikfydk ls N% ekg esa iV~Vk Hkh ugha feyk o bl dkj.k oknh;k Jherh Hkwjhnsoh us vius ifr ihjpUn dh lgefr ls izfroknh dks lkSnk fujLr le>us dks dg fn;k\ ¼6½ D;k og eq[rkjukek ftlds vk/kkj ij ihjpUn us oknhx.k dh vksj ls ;g nkok izLrqr fd;k gS og QthZ vkSj bldk nkos ij D;k vlj gS\ ¼7½ D;k vuqdYi esa oknhx.k :- 5000@& o ml ij 18 izfr”kr okf'kZd dh nj ls C;kt ikus ds vf/kdkjh gSa\ ¼8½ lgk;rk\** 6. The plaintiff examined eight witnesses whereas two witnesses were examined on behalf of the defendant. The plaintiff examined eight witnesses whereas two witnesses were examined on behalf of the defendant. On basis of the evidence as led and after hearing the parties, the learned trial Court proceeded on to decree the suit in favour of the plaintiff and directed the plaintiff to pay/deposit the due consideration of amount of Rs.5,999/- to the defendant/with the Court within a period of one month and on deposition of the same, directed the defendant to execute the sale deed in favour of the plaintiff. Against the said judgment and decree dated 30.03.1990, the present regular appeal has been preferred by the appellants, the legal representatives of the deceased defendant Dharam Chand who expired during the pendency of the suit proceedings. 7. Learned Senior counsel for the appellant Mr. Sandeep Shah raised the following grounds: a. The learned trial Court erred in deciding issue no. 2 pertaining to limitation in favour of the plaintiffs. Counsel submitted that the suit as filed by the plaintiffs was specifically time barred. It has been submitted that time was the essence of the contract in the present matter and the limitation for performance of the contract was specifically provided in the agreement itself to be for a period of six months. The agreements specifically provided for grant of six months time to the defendant to get the sale deeds issued in his favour by the Municipal Board. Admittedly, the sale deeds were not issued in favour of the defendant by the Municipal Board within the said period. In terms of Article 54 of the Schedule to the Limitation Act, 1963, the limitation for specific performance of a contract commences from the date fixed for the performance or if no such date is fixed, when it comes to the notice of the plaintiff that the performance is refused. In the present case the time for performance of the contract was stipulated for a period of six months and therefore, the cause of action/period of limitation would definitely commence after six months from the date of agreement to sell. The agreement to sell was executed on 29.01.1974 and therefore, the limitation would commence from 29.07.1974. Meaning thereby, the limitation, if any, was available to the plaintiff only till 29.07.1977. Admittedly, the suit had been filed on 16.02.1982 and the same was clearly time barred. The agreement to sell was executed on 29.01.1974 and therefore, the limitation would commence from 29.07.1974. Meaning thereby, the limitation, if any, was available to the plaintiff only till 29.07.1977. Admittedly, the suit had been filed on 16.02.1982 and the same was clearly time barred. The learned trial Court erred in holding that the limitation in the present matter commenced from 25.07.1979, the date when the sale deeds were executed by the Municipal Board in favour of the defendant. The said finding of the learned trial Court being totally in contravention to the provisions of Limitation Act, deserves to be set aside and the suit of the plaintiff deserves to be dismissed on this ground alone. b. The basic and the essential requirement for a plaintiff to get a decree for specific performance of contract in his/her favour is to prove that he/she was ready and willing to perform his/her part of the contract. Proof of readiness and willingness is the most essential ingredient in a suit for performance of contract and in the present matter, no issue regarding readiness and willingness was even framed by the learned trial Court. Further, neither any pleadings nor any evidence has been led by the plaintiff to prove her readiness and willingness to perform her part of the contract. It is the settled proposition of law that the readiness and willingness is not only to be proved on the due date of execution of the contract but also during the entire period of the agreement. In the present case, no pleadings qua the plaintiff being in possession of the due consideration amount and she being ready to pay the due consideration amount to the defendant have been made. In absence of any pleadings, readiness and willingness of the plaintiff could not have been concluded to have been proved and moreover, in absence of any issue qua the same, no finding could even have been recorded by the learned trial Court. In support of his submission counsel relied upon the Apex Court judgment in the case of Manjunath Anandappa @ Shivappa v. Tammansa and Ors., (2003) 10 SCC 390 and in the case of V.S. Ramakrishnan v. P.M. Muhammed Ali (Civil Appeal No. 8050-8051 of 2022). In support of his submission counsel relied upon the Apex Court judgment in the case of Manjunath Anandappa @ Shivappa v. Tammansa and Ors., (2003) 10 SCC 390 and in the case of V.S. Ramakrishnan v. P.M. Muhammed Ali (Civil Appeal No. 8050-8051 of 2022). c. The learned trial Court erred in decreeing the suit for specific 2performance ignoring the provision of section 20(2)(a) of the Specific Relief Act, 1963 (hereinafter referred to as 'the Act'). Counsel submitted that the present one was a fit case wherein the court ought to have granted the alternate relief of refund of the advance amount and not a decree of specific performance. Counsel submitted that the agreement to sell was executed in the year 1974 for a meagre sum of Rs.11,000/- (as averred by the plaintiff). The specific performance of the same was sought in the year 1982 and the decree has been granted in the year 1990, that is, after 16 years of the agreement in question. The prices had evidently escalated with efflux of time and the same naturally gave an undue advantage to the plaintiff over the defendant therefore, in terms of Section 20(2)(a) of the Act of 1963, the Court ought to have exercised its discretion and granted the prayer for alternate relief that is for refund of the advance amount. In support of his submission counsel relied upon the Apex Court judgments in the case of M Meenakshi and Ors. v. Metadin Agarwal by Lrs and Ors., (2006) 7 SCC 470 and Ramesh Chand Through Lrs v. Asruddin through Lrs. and Anr., (2016) 1 SCC 653 and the judgment of this Court in the case of Baldev Raj Chopra v. Rakesh Kumar, (2013) 4 WLC (Raj) 220. On the said grounds counsel prayed that the present appeal be allowed and the impugned judgment and decree be set aside. 8. Per contra, counsel for the respondents submitted that: a. The learned trial Court rightly decided issue no. 2 in favour of the plaintiff as where an eventuality is defined in an agreement, no cause of action would deem to arise prior to the said eventuality having been accomplished/complied with. Counsel submitted that the cause of action in the present matter arose to the plaintiff only after the sale deeds being issued in favour of the defendant by the Municipal Board, that is, on 25.07.1979. Counsel submitted that the cause of action in the present matter arose to the plaintiff only after the sale deeds being issued in favour of the defendant by the Municipal Board, that is, on 25.07.1979. The suit had been preferred on 16.02.1982, that is within a period of three years from 25.07.1979 and hence the same was clearly within limitation. b. So far as the readiness and willingness of the plaintiff is concerned, it is clear on record that the performance of the contract in the present matter was dependent on a condition precedent pertaining to the title of the plots in question. Unless and until the same was fulfilled, that is, the sale deed was obtained by the defendant in his favour, no sale deed in favour of the plaintiff could have been executed and therefore, the cause of action, if any, materialized to the plaintiff only after the said condition having been fulfilled. Further, the readiness and willingness to perform her part of the contract was very well proved on record by the plaintiff and therefore, the findings of the learned trial Court cannot be interfered with. Counsel submitted that PW-7 Peer Chand, husband of the plaintiff specifically deposed that the plaintiff was always ready and willing to pay the due consideration amount to the defendant and was even ready and willing on the said date. The readiness and willingness being clearly proved on record, no issue having framed qua the same would be of no consequence as it is the substance that is relevant. In support of his said submission counsel relied upon the judgment in the case of Ramzan v. Smt. Hussaini, AIR 1990 SC 529 . 9. Heard learned counsel for the parties and perused the material available on record. 10. A perusal of the issues as framed by the learned trial Court and reproduced in the preceding paragraph makes it clear that no issue regarding readiness and willingness of the plaintiff to perform her part of the contract was framed by the learned trial Court. In a suit for specific performance of the contract, it is a sine qua non for the plaintiff to prove his/her readiness and willingness to perform his/her part of the contract. In a suit for specific performance of the contract, it is a sine qua non for the plaintiff to prove his/her readiness and willingness to perform his/her part of the contract. Section 16(c) of the Act makes it obligatory to a plaintiff seeking enforcement of the specific performance that he must not only come with clean hands but there should be a plea that he has performed or has been and is ready and willing to perform his part of obligation. Unless this is there, Section 16(c) of the Act creates a bar for grant of this discretionary relief. As held in Pushparani S. Sundaram and Others v. Pauline Manomani James and Others; 2002(9) SCC 582 , merely a plea that the plaintiffs are ready and willing to perform their part of the contract would not itself be sufficient to hold that the appellants were ready and willing in terms of Section 16(c) of the Act. This requires not only such plea but also proof of the same. 11. A fact pleaded in a suit can be said to be proved only when an issue qua the same has been framed, evidence has been led by the parties on the same and on the basis of the evidence led (oral as well as documentary), the Court reaches to a conclusion that the party on whom the burden to prove the said issue was laid, has discharged the said burden and has proved the same in its favour. Admittedly, in the present matter, no issue qua readiness and willingness of the plaintiffs was framed and therefore, the factum of burden of proof of said fact/pleading being discharged by the plaintiffs could not have been and cannot be concluded. In absence of any issue being framed and the burden to prove the same being laid on any of the parties and in absence of finding of such burden having been discharged, it cannot be concluded that the plaintiffs were ready and willing to perform their part of the contract. In absence of any issue being framed and the burden to prove the same being laid on any of the parties and in absence of finding of such burden having been discharged, it cannot be concluded that the plaintiffs were ready and willing to perform their part of the contract. Dealing with similar matter wherein no issue regarding readiness and willingness in a suit for specific performance was framed, the Hon'ble Apex Court in its recent judgment in the case of V.S. Ramakrishnan v. P.M. Muhammed Ali, Civil Appeal Nos.8050-8051 of 2022 (decided on 09.11.2022) held as under: “Now the findings and the reasoning given by the learned Trial Court refusing to pass a decree for specific performance is concerned it appears that though there was no specific issue framed by the learned Trial Court on readiness and willingness on the part of the plaintiff, the Trial Court has given the findings on the same and has non-suited the plaintiff by observing that the plaintiff was not having sufficient funds to make the full balance consideration on or before 12.01.2006. Such a finding could not have been given by the learned Trial Court without putting the plaintiff to notice and without framing a specific issue on the readiness and willingness on the part of the plaintiff. There must be a specific issue framed on readiness and willingness on the part of the plaintiff in a suit for specific performance and before giving any specific finding, the parties must be put to notice. The object and purpose of framing the issue is so that the parties to the suit can lead the specific evidence on the same.” 12. In view of the ratio as laid down by the Hon'ble Apex Court, this Court is also of the specific opinion that the suit in question could not have been decreed in favour of the plaintiffs without a specific issue on the factum of readiness and willingness on the part of the plaintiffs to perform their part of the contract being framed and decided in terms of law. 13. Order XLI Rule 25 of the Code of Civil Procedure provides as under: “25. 13. Order XLI Rule 25 of the Code of Civil Procedure provides as under: “25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from: Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required. And such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor [within such time as may be fixed by the Appellate Court or extended by it from time to time].” 14. Keeping in view the above provision of law, the following issue is framed in the present matter: ^^vk;k oknhuh vuqca/k fnukad 29-01-1974 dh ikyuk dks lnSo rS;kj o rRij Fkh\** 15. The present matter is remitted to the learned trial Court for retrial and decision on the above issue. Learned trial Court shall permit the parties to lead evidence on the said issue and after hearing the parties, proceed to pass a fresh order on the said issue and return the evidence as recorded by it with its findings thereupon to this Court within a period of six months from the date of appearance of the parties before it. 16. Both the parties shall appear before the learned trial Court on 07.08.2023. No fresh notice/summon would be required to be issued and served on the parties by the learned trial Court. 17. Let the present appeal be listed before this Court on 15.02.2024.