Bombay High Court
Rambhau Jagoji Gadre vs Shantabai Wd/O Shankarrao Deshpande ... on 11 June, 2002
Equivalent citations: (2002)3BOMLR463, 2003(1)MHLJ791
Author: D.Y. Chandrachud
Bench: D.Y. Chandrachud
JUDGMENT D.Y. Chandrachud, J.
1. By the impugned judgment and decree dated 4-3-1989, the learned Additional District Judge, Amravati, has allowed an appeal against the judgment and order dated 31-3-1984 of the learned Joint Civil Judge, Jr. Dn., Amravati, decreeing the suit for specific performance of contract instituted by the appellant against the predecessor-in-title of the respondents. This second appeal was admitted on 16-6-1989 and the substantial question of law which has been raised is as to whether the averment contained in the plaint to the effect that the appellant was "ever ready and willing to execute the sale-deed in his favour after making a payment of Rs. 200/-" would amount to compliance with the requirement that the plaintiff must plead that he has been ready and willing to perform the essential terms of contract which are putforth by him.
2. The suit for specific performance was instituted on 16-4-1982 before the learned Civil Judge, Jr. Dn., Amravati. According to the appellant-plaintiff, an agreement to sell was executed between the parties on 24-11-1979 under which the appellant agreed to purchase from the predecessor-in-title of the respondents, one Shankarrao, an immovable property bearing plot No. 55, Nazul sheet No. 67D, situated at Mudholkarpeth, Amravati, at and for a consideration of Rs. 3,000/-, The agreement which was exhibited in evidence as Ex. 19 records that an amount of Rs. 2000/- was paid on 24-11-1979; that an amount of Rs. 800/- was to be adjusted as against certain outstandings due and payable to the original plaintiff by the defendant and that the balance of Rs. 200/- would be paid at the time of the execution of the sale-deed. The sale-deed was to be executed on 25-1-1980. On 21-1-1980 the appellant sent a telegram to the vendor for the execution of the sale-deed (Ex. 20). As the vendor did not enter into the sale-deed as agreed, it was the case of the appellant that he thereupon caused to be addressed an advocate's notice dated 12-1-1981 (Ex. 21) after which the suit came to be instituted. The notice addressed by the appellant was duly replied to by the original defendant by a letter which was marked in evidence as Ex. 22. The suit came to be decreed by the learned 2nd Joint Civil Judge, Jr. Dn., Amravati, on 31-3-1984. The Judgment and order of the learned trial Judge has been reversed in appeal by the learned Additional District Judge, Amravati, on 4-3-1989.
3. Insofar as the substantial question of law which has been framed is concerned, the learned counsel appearing on behalf of the appellant urged that the statement contained in paragraph 4 of the plaint was sufficient compliance with the requirement of Section 16(c) of the Specific Relief Act, 1963 which is to the effect that the plaintiff must aver that he has performed or that he has always been ready and willing to perform the essential terms of the contract which are to be performed by him.
4. As already noted, the case of the appellant is that there was an agreement dated 24-11-1979 and an amount of Rs. 2,000/- was paid in cash to the original defendant; of the balance consideration which was due and payable, an amount of Rs. 800/- was to be adjusted against the dues which were outstanding and payable to the appellant by the original defendant, and that an amount of Rs. 200/- was to be paid at the time of the execution of the sale-deed. In paragraph 4 of the plaint, the appellant avers that he was "ever ready and willing" to get executed the sale-deed in his favour after making a payment of Rs. 200/- and that the appellant requested the defendant time and again to perform his part of the contract. Then it has been averred that the original defendant avoided the execution of the sale-deed and consequently a telegram dated 21-1-1980 was sent by the original plaintiff to the original defendant for execution of the sale-deed. This was followed by the notice dated 21-1-1981 despite which, since the defendant refused to execute the sale-deed, the suit for specific performance was instituted. There is merit in the contention of the learned counsel appearing for the appellant that insofar as the aspect of pleading is concerned, the averments which have been made in paragraphs 3 and 4 of the plaint, would constitute sufficient compliance with the requirement contained in Section 16(c) of the Specific Relief Act which is to the effect that specific performance of a contract, cannot be enforced in favour of a person who fails to aver that he has performed or has always been ready and willing to perform the essential terms of the contract. Section 16(c) also requires, besides the averment in the pleadings, proof of the readiness and willingness of the plaintiff and that is a separate matter which will have to be considered independently. However, the learned Additional District Judge, held in paragraph 10 of the impugned judgment, that the averments contained in paragraph 4 of the plaint did not meet the requirement of Section 16(c) on the ground that there is no averment in the plaint that the appellant is ready and willing to perform his part of the contract "continuously" and "on all material occasions." This part of the finding is clearly unsustainable and in fairness it must be stated that the learned counsel appearing for the respondents has accepted the position, in the course of submissions, that the aforesaid finding in paragraph 10 of the judgment of the learned Additional District Judge is clearly unsustainable.
5. There are two other areas in which the learned Additional District Judge has, however, committed a fundamental error, which would now need to be referred to. The first aspect is the finding in paragraph 8 of the judgment which is to the effect that the original document was not produced and that the appellant had remained content only in producing a Xerox copy of the agreement. The related finding in paragraph 12 of the impugned order is that the document itself had not been proved according to law and that the mere proving of the signature thereon would not amount to proof of the document. Now, insofar as the first aspect of the matter is concerned, the attention of the Court has been drawn to the deposition of the appellant in his examination-in-chief which clearly shows that the original of the agreement dated 24-11-1979 was produced and that a photocopy of the original was verified with reference to the original and found to be correct. It was, in these circumstances, that the photocopy was taken on record and marked as Ex. 19. Therefore, the finding of the learned Additional District Judge that the original of the agreement of sale had not been produced at all is ex facie incorrect. Even on this aspect of the matter, the learned counsel appearing on behalf of the respondents has not disputed the position that the learned Additional District Judge had erred in coming to the conclusion that the original of the agreement of sale had not been produced. Then on the question of the execution of the document, it would be material to note that in paragraph 2 of the written statement, the original defendant had averred that there was never any agreement nor "consensus of the mind of plaintiff and defendant and there was no agreement of sale". The defendant stated that except the execution of the document he denied the contents, consideration, operative nature and enforceability of the document for the purposes intended by the plaintiff. The case of the defendant in paragraph 7 of the written statement is that the plaintiff-appellant had taken on lease an open space for the purpose of running a vegetable shop from the original defendant but the payment of rent had been in arrears right from 1967. The business was carried on by the plaintiff along with his brother and there were disputes between the plaintiff and his brother. According to the original defendant, the plaintiff had assured him that he would pay the arrears of rent himself in case the defendant was willing to assist him in his family dispute. The arrears of rent were stated to be to the tune of Rs. 800/- and according to the defendant the appellant-plaintiff insisted that the defendant execute an earnest note in his favour in the form of a sale agreement. According to the defendant, the appellant paid an amount of Rs. 800/- on 24-11-1979 which was payable on account of arrears of rent for the open space taken on lease. The defendant, it was his case, had agreed to the execution of the document dated 24-11-1979 on the assurance that it was not intended to be acted upon.
6. In the course of his evidence, the original defendant stated that he had executed Ex. 19, an agreement to sell in favour of the plaintiff, but he sought to contend that this was because the appellant had requested him to intervene in the quarrel which had taken place between the appellant and his brother. A perusal of the written statement as also the evidence of the original defendant would show that the defendant neither denied his signature on the document at Ex. 19 nor did he deny the execution of the document. The contention of the defendant, however, was that this document was a nominal document which was not intended to be acted upon.
7. The question which arose before the trial Court and in appeal before the appellate court, was, whether this defence had been sufficiently sustained. The learned Additional District Judge has relied upon the alleged delay on the part of the appellant as a ground for non suiting him. The suit which was instituted by the appellant was admittedly within the period of limitation. The agreement was entered into on 24-11-1979 and the date which was fixed for the execution of the sale-deed was 25-1-1980. The suit was instituted on 16-4-1982. The suit was filed within the period of limitation prescribed in Article 54 of the Schedule to the Limitation Act, 1963. The learned Additional District Judge, however, has relied on the circumstance that the appellant had sent a telegram to the original defendant only on 21-1-1980 (wrongly referred to as 12-1-1981 in paragraph 9 of the judgment and order of the appellate Court) and that thereafter a legal notice was sent only on 12-1-1981. The suit was thereafter instituted on 16-4-1982. That is the delay which the learned Additional District Judge adverts to. If the appellant had otherwise established the ingredients required to be made out in a suit for specific performance, I am of the view that this delay by itself was not sufficient to non suit the plaintiff. The suit, it is an admitted position, was instituted within the period of limitation.
8. Having regard to the aforesaid circumstances, I am of the view that the approach of the learned Additional District Judge in critical areas of the matter was vitiated which would require interference of this Court in second appeal. The learned Additional District Judge, it must be noted, has commented upon the fact that whereas the agreement to sell was scribed on 24-11-1979, the stamp paper was purchased on 28-11-1979. Similarly, it has been observed by the learned Additional District Judge that no attesting witness in support of the agreement to sell has been examined. In my view, it would not be appropriate for this Court to reappreciate the evidence on this point and to determine whether these findings, which have been arrived in paragraphs 8 and 11, would in themselves have been regarded by the Appellate Court as sufficient to warrant the dismissal of the suit for specific performance. The defence of the Respondent that the alleged agreement was only a nominal document which was never intended to be acted upon will have to be duly assessed on the evidence and that is not something which this Court should do in a Second Appeal. Similarly, all other questions including the question of whether the readiness and willingness of the Appellant to perform his part of the Contract has been proved, as required by Section 16(c) of the Specific Relief Act, 1963, will have to be considered by the Appellate Court afresh.
9. In the circumstances, I am of the view that the proper course of action would be to direct the learned Additional District Judge, Amravati, to reconsider the matter, by remanding the matter for fresh consideration. The learned Additional District Judge is directed to do so on the basis of the material on record. It is clarified that this Court has expressed no opinion on the question as to whether on the evidence that was led, a case for the grant of the relief of specific performance has been established. This will be entirely within the jurisdiction of the appellate Court to consider on the basis of the evidence and the material on record.
10. This second appeal is accordingly allowed and the impugned judgment and order of the learned Additional District Judge, Amravati, dated 4-3-1989 is quashed and set aside. Regular Civil Appeal No. 176 of 1984 is accordingly restored to the file of the Additional District Judge, Amravati. However, having regard to the long pendency of the matter, the Additional District Judge is directed to dispose of the appeal within a period of three months from the date on which an authenticated copy of this judgment is received or produced by either of the parties. Record and proceedings be sent immediately to the Additional District Judge, Amravati.