Patna High Court
Nawal Kishore vs Smt. Kauleshwari Devi And Anr. on 10 October, 1985
Equivalent citations: AIR1986PAT301, 1986(34)BLJR418, AIR 1986 PATNA 301, (1986) BLJ 268, (1986) PAT LJR 431, 1986 BLJR 418
JUDGMENT Satya Brata Sanyal, J.
1. This second appeal arises out of a suit for specific performance of contract. The defendant purchaser has preferred this second appeal against the judgments of affirmance.
2. At the time of the admission of the appeal, the substantial question of law framed is as hereunder :
"Whether in absence of any finding to the effect that the plaintiffs have performed and have always been ready and willing to perform their part of the contract, the lower appellate court was right in granting a decree for specific performance of the contract in favour of the plaintiffs-respondents specially when the plaintiffs did not deposit the money even after direction given by the two courts below?"
3. The disputed property relates to municipal holding No. 35 of Ward No. 1, Mohalla Maharani Road Pahai, Gaya. It is said that the said property belonged to one Santoo Thakur, husband of defendant Pachia Devi. The property was gifted away to defendant Pachia Devi under a registered deed of gift dt 26-7-66. It is said that the defendant contracted with the plaintiffs to- sell the property in suit for a sum of Rs. 9,500/- under a contract of sale dt. 10-9-69 on receiving a sum of Rs. 5,000/- as earnest money. According to the terms of the said contract, Pachk Devi was required to execute the sale deed by 31-12-69 on receipt of the balance sum of Rs. 4,500/-. On 13-12-69 the plaintiffs purchased stamps for execution of the sale deed and it is said that the plaintiffs approached the defendant several times to perform the contract but the defendant went on putting off the matter on some pretext or other. In para 7 of the plaint it has been stated that ultimately the plaintiffs sent a notice under registered post dated 26-12-69 to the defendant through their lawyer calling upon her to perform the contract and the sale deed by 30-12-69 as promised and receive the consideration money of Rs. 4,500. The said notice is said to have been received by defendant Pachia Devi on 29-12-69. It is further stated in para 8 of the plaint that the plaintiffs again sent their agent to the defendant but she did not turn up although the due date for performance of the contract had expired and, therefore, the plaintiffs were constrained to institute the suit. In para 9 of the plaint it has been stated that the defendant was avoiding to perform the contract voluntarily as promised and therefore the plaintiffs are entitled to enforce the contract and get the same specifically performed through the Court on payment of the balance sum of Rs. 4,500/-. It has been averred that the plaintiffs have come to learn that the defendant is negotiating for sate of the holding in dispute with other persons and, therefore, the defendant be restrained from alienating the holding in dispute. The plaintiffs prayed for a decree for specific performance of the contract against the defendant by issuance of a direction to execute the sale deed and deliver possession on acceptance of the amount due and to any other relief to which the plaintiffs be entitled to.
4. The defendant specifically pleaded in para 2 of the written statement that the plaintiffs had got no cause of action for the suit and they were not entitled to any decree as the plaintiffs had come with unclean hands. They were not entitled to the relief of specific performance of contract because they had played fraud. It is said that there was a talk with the plaintiffs to sell the house standing on plot No. 6569 Ka and Kha measuring 0.19 decimals and 0.8 decimals respectively and not the house standing on municipal survey plot No. 6568 measuring 24 decimals which the defendant wanted to keep herself for her own residence. The contract was not read over and explained to the defendant. She being an illiterate woman, ignorant of the ways of the Courts, could not read the contents thereof herself. The defendant was only paid a sum of Rs. 1000A before the Sub-Registrar. The defendant learnt about the fraud when the suit was instituted. She never agreed to sell holding No. 35 nor there was any contract for the same. She was only paid a sum of Rs. 1,000 at the time of the agreement to sell and she never received the sum of Rs. 4,000A. In para 22 of the written statement the allegations made in para 7 of the plaint have been totally denied as being false and imaginary. The defendant is said to have received no notice. It has further been averred in para 23 that assuming though not admitting that the plaintiffs had sent any notice then also it cannot be considered as a valid offer as the plaintiffs were ready to pay Rs. 4500/- only and not Rs. 8500/-. In para 25 of the written statement it has also been averred that the plaintiffs were not willing and ready to perform their part of the contract; rather they always tried to take illegal advantage of their own fraud
5. It may be stated here that on the death of the defendant Pachia Devi, wife of Sontoo Thakur, Mosst. Jamuni Thakurain was substituted on 8-3-1973.
6. The trial Court held that the contract for sale was with respect to the disputed property and Pachia Devi executed the agreement for sale with full knowledge and on receipt of an earnest money of Rs. 5000/-. The agreement for sale is not vitiated by any fraud and the plaintiffs are found not to have defaulted, in performing their pan of the contract. It has also been found that Pachia was called upon to execute the sale deed by issuance of a notice duly served upon her. It was held that during the pendency of the suit Jamuni Thakurain, the substituted heir of the defendant, sold the property to the appellants but she is not entitled to retain possession of the disputed property. The plaintiffs were directed to deposit the balance sum of Rs. 4,500/- within a month from the passing of the decree and on deposit of the said money in favour of Jamuni Thakurain the plaintiffs shall be entitled to get a sale deed executed in their favour. On Jamuni Thakurain's failure to do so, the plaintiffs shall have the right to get the sale deed executed through" the agency of the Court.
7. The lower appellate Court affirmed the findings of the trial Court with respect to the payment of Rs. 5000/- by way of earnest money and there was no fraud in the execution of the agreement to sell. In para 18 the lower appellate Court further observed that stamps were purchased and pleaders notice was duly served on Pachia to execute the sale deed but she did not turn up to perform her part of the contract. She defaulted in performing the contract which she had agreed to perform. The agreement to sell was found to be legal, valid and enforceable. The lower appellate Court's judgment is dt. 12-2-77 and it also contained a direction for the payment of Rs. 4,500/-, the balance amount of the consideration money as agreed to between the parties.
8. Mr. Sudhir Chandra Ghose, learned lawyer for the appellant, contended that the suit itself is not maintainable. There has been no averment in the whole of the plaint that the plaintiffs were at all time ready and willing to perform the contract. This averment, according to learned lawyer, is a cause of action for the suit. He further submitted that none of the two Courts below has rendered any finding that the plaintiffs were ready and willing to perform the contract at all relevant time even in course of hearing of the suit. The very fact that the plaintiffs needed one month's time to perform the contract negates their readiness. They even did not deposit the money within the time schedule of the trial Court nor thereafter. The judgments of the two Courts below, therefore, are per se illegal and fit to be set aside.
9. Mr. Shreenath Singh, learned counsel 'appearing for the respondents, contended that it is not at all necessary to quote the provisions of Section. 16 of the Specific Relief Act -- See(ii). Willingness and readiness is a matter of inference for which necessary facts have been laid out in paras 7, 8 and 9 of the plaint He further submitted that the case of the plaintiffs stands admitted in para 23 of the written statement which I have already extracted above. Learned counsel contended that since both the Courts below have found the agreement to be genuine and valid and that notice for the performance of the contract was served upon the defendant, the admission that the plaintiffs were only ready to pay Rs. 4,500/- and not Rs. 8,500/-, according to the defenant's case, is enough for the suit being decreed on such admission. As to the question of the failure of the Courts below to record a finding as to readiness and willingness on the part of the plaintiffs to perform the contract, it can be culled out from the following finding of the lower appellate Court;
"Thus from the evidence discussed above it is quite clear that Mosst. Pachia was served with a notice to execute the sale deed before filing of the present suit and that Mosst Pachia had defaulted in performing the contract which she had agreed to perform."
Learned counsel, however, admitted that the deposit was not made in Court but the plaintiffs made an application on 14-9-1974 to deposit the amount before the Registrar of the Registration Office.
10. It appears that Jamuni Thakurain also died and a substitution petition filed on 6-8-1982 has been ordered to be considered at the time of the hearing of the appeal but notices of appeal were directed to be served on the heirs. Mr. Shreenath Singh submits that the appeal has abated as no step for substitution was taken within time and it is not a fit case where the delay should be condoned and abatement set aside. He contended that if the appeal abates against the vendor then the entire appeal will abate since the vendor is a necessary party in a suit for specific performance of contract as held in the case of Smt. Manni Devi v. Ramayan Singh, AIR 1985 Pat 35. I will, therefore, dispose of this point first. This appeal was filed on 27-6-1977 impleading Jamuni Thakurain as the defendant On 23-10:1981 the Court was communicated that Jamuni Thakurain was dead. The Court ordered that the appellant should take necessary steps for substitution. The Court noticed the submission of Mr. S. C. Ghose, learned counsel appearing for the appellant, that an enquiry would be made whether respondent No. 3 is dead or alive and if she is alive then steps for service of notice will be taken. On 10-11-1981 a petition in the nature of substitution was filed under Chapter VI Rule 4 of the Patna High Court Rules stating that according to the appellant's enquiry Jamuni Thakurain died in the lower appellate Court itself. Therefore, the judgment of the lower appellate Court is a nullity. It was also stated that the appellant had no knowledge about the date of death. A counter-affidavit was filed on behalf of the respondents on 30-3-1982 stating that Jamuni Thakurain died on 8-3-1978. Thereafter on 6-8-1982 another application for substitution was filed under O. 22, R. 4 read with Rules 9 and 11 of the Civil P. C along with a death certificate which shows that respondent No. 3 died on 10-11-1977 at village Yogia and not at Motibagh as stated in the counter affidavit. Whereas the appellant submits that he came to know about the death of respondent 3 from the statement of the respondents as noticed on 23-10-1981 but since she did not die in her village and he was further misled by the respondents' counter-affidavit showing a different date of death as well as the village where she died, Mr. Shreenath Singh, on the other hand, contended that a valuable right has accrued to the respondents and the appellant has to explain every day's delay for setting aside the abatement Learned counsel particularly emphasised that there is no explanation for the period from 30-3-1982, when the counter-affidavit was filed, till the appellant obtained a copy of the death certificate on 11-7-1982 and further from 11-7-82 to 6-8-1982 when the actual application for substitution was filed.
11. Having heard learned counsel for the parties, I am of the opinion that the appellant took steps at the earliest opportunity from the date of knowledge of death when he filed his application within 17 days of the said knowledge i.e. 10-11-1981. It may be noticed that the application under Chapter VI, Rule 4 was made as he was not knowing the actual date of death and the respondents further misled him by filing a wrong counter-affidavit on 30-3-1982 stating the date of death to be 8-3-1978 in some other village to mislead the enquiry to be made by the appellant It was their duty to disclose the correct date of death on 23-10-81 itself and if thereafter the appellant would have delayed in taking steps for substitution the question could have been altogether different and I could have called upon the appellant to explain every day's delay. In the facts and circumstances of this case, particularly in view of the steps taken by the appellant on 10-11-1981, I hold that there has been no negligence on the part of the appellant in substituting the heirs of the deceased respondent The delay in filing the substitution petition is, therefore condoned the abatement is set aside and the heirs of Jamuni - Thakurain are directed to be substituted.
12. Coming to the contention of Mr. Ghose that the suit itself is not maintainable, he had drawn my attention to the decision of this Court in the case of Nandlal Sah v. Pawan Devi, 1979 BBCJ (HC) 599 where H. L. Agrawal, J., after referring to two decisions of the Supreme Court in Ouseph Varghese v. Joseph Aley, (1969) 2 SCC 539 and Prem Raj v. D. L. Housing & Constructions Pvt. Ltd., AIR 1968 SC 1355, observed that it is essential to plead that the plaintiff has been and is still ready and willing to specifically perform his part of the contract. Unless that averment is made the plaintiff shall have no cause of action so far as the relief for specific performance is concerned. It was further observed that even an averment made by the plaintiff to the effect that the plaintiff has been ready to perform his part of the contract does not indicate his willingness to do so as the plaintiff intended to perform his part only when the sale deed is executed and its execution is admitted at the time of registration, etc. In the case of Bishwanath Mahto v. Smt Janki Devi, 1978 BLJ 243 : (AIR 1978 Pat 190) Lalit Mohan Sharma, J., after referring to the decision of. the Privy Council in Ardeshir H. Mama v. Flora Sassoon, AIR 1928 PC 208 and the decision of the Supreme Court in Gomathinayagam Pillai v. Palaniswami Nadar, AIR 1967 SC 868 held that the readiness of the plaintiff to perform his part of the agreement must continue from the date of the contract till the hearing of the suit. In the said case the Court held that from the facts it is evident that the appellant was, in reality, unwilling to perform his part of the contract during this period, that is, from the date of the contract till the hearing of the suit. In the case of Ram Singhasan v. Sudama Prasad, AIR 1982 Patna 200 this Court following a decision of the Supreme Court in Ganesh Trading Co. v. Moji Ram, AIR 1978 SC 484 as well as a Division Bench decision of the Allahabad High Court in Mahmood Khan v. Ayub Khan, AIR 1978 All 463 observed that the said averment being in the nature of cause of action, the amendment application for amending the plaint cannot be allowed to rectify the said defect as that would be taking away a valuable right which has accrued. Mr. Shreenath Singh, on the other hand, referred to certain decisions of the Allahabad High Court in Anwarul Haq v. Nizam Uddin, AIR 1984 All 136, Dhian Singh v. Tara Chand, AIR 1984 All 4, Prag Datt v. Saraswati Devi, AIR 1982 All 37 and Bijai Bahadur v. Shri Shiv Kumar, AIR 1985 All 223 as also to the decisions in Raminder Singh v. Sham Lal, AIR 1984 Punj and Har 145 and Ramesh Chandra v. Chuni Lal, AIR 1971 SC 1238 in order to impress upon me that it is not necessary that there should be an averment in the plaint according to Forms 47 and 48 of Appendix A of the Code of Civil Procedure nor there is any necessity to quote Section. 16, Explanation (ii), of the Specific Relief Act. In. Bijai Bahadur's case (supra) it was held that mere proof of readiness and willingness where the essential ingredients are absent in the pleadings must be deemed to be an exercise in vain. Proof in such cases cannot be regarded as substitute for averments which were absent in the pleadings. It was also observed that "what is essential is that the core allegations must find place in the pleadings. Even though the narration of facts and other allegations lead to the conclusion that the plaintiff was doing all within his powers to have the sale deed executed in terms of the agreement, yet this by itself may not be sufficient to spell out an averment of his willingness and readiness." In the said case on the totality of the averments the Court took the view that the plaintiff was ready and willing at all relevant time to perform his part of the contract. In the case of Anwarul Haq (supra) it was observed that there is no requirement of a literal compliance to the language in Forms 47 and 48 of Appendix-A of the Code of Civil Procedure but it should be adjudged in the particular perspective since the substantive provision contained in Section. 16(c) does not insist upon a particular set of words to be used but the averment must in substance indicate the continuous readiness and willingness on the part of the person suing. In Dhian Singh's case (supra) it was further observed that the form prescribed is procedural; it is a rule of pleading; this has for its object the advance of the cause of justice and is not intended to short-circuit decision on merits. It is procedure, something designed to facilitate justice and further its end, not a penal enactment. In Prag Datt's case (supra) it was held that the substance of the matter and the surrounding circumstances are required to be considered to find out whether the plaintiff was and remained throughout ready and willing to perform his part of the contract and it would not be proper to non-suit him on a verbal omission here and there. My attention has also been drawn to Ramesh Chandra's case (supra) where their Lordships have said that readiness and willingness cannot be treated as a strait-jacket formula, These have to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned.
13. The ratio of the decisions relied upon by both the parties, to my mind, is that there ought to be an averment of the plaintiffs willingness and readiness to perform his part of the contract. This may not be in the exact words used by the Legislature. The substance of it, however, must be there as required under Section 16 of the Specific Relief Act The surrounding circumstances must also indicate that the readiness and willingness continued from the date of the contract till the hearing of the suit. It is true that the plaint cannot be construed in a pedantic manner to non-suit the plaintiff. In the instant case the plaintiffs relied upon the averment that they purchased stamp papers prior to the execution of the sale deed as well as issuance of notice calling upon the defendant to execute the sale deed on acceptance of a sum of Rs. 4,500/-. This read with the averment in para 23 of the written statement that the plaintiffs were ready to pay a sum of Rs. 4,500/- even assuming constitutes the requirement of law with respect to averment in my opinion, the plaintiffs have failed to prove that they remained throughout ready and willing to perform their part of the contract. This is manifest from the fact that the plaintiffs required one month's time from the date of the judgment of the trial Court to perform their part of the contract and they failed to deposit the said sum in the Court below within the said time. As a matter of fact, they never deposited in Court the balance amount. Can it be said that they were always ready and willing to perform their part of the contract throughout? It is evident that the plaintiffs, in reality, were unwilling to pay the balance money even during the hearing of the suit and they needed a month's time from the Court which also they failed to fulfil. The Courts below have not at all applied their mind to this aspect of the matter which is the real question they were called upon to decide. On the contrary, the finding is that Mosst. Pachia had defaulted in performing the contract which she had agreed to perform. The Courts below, therefore, have completely misdirected themselves in law in decreeing a suit for specific performance of contract.
14. In the result, me appeal filed by the purchaser is allowed and the judgments of the two Courts below are set aside. There will, however, be no order as to costs.