Patna High Court
Bishwanath Mahto vs Srimati Janki Devi on 6 January, 1978
Equivalent citations: AIR1978PAT190, 1978(26)BLJR620, AIR 1978 PATNA 190
Author: Lalit Mohan Sharma
Bench: Lalit Mohan Sharma
JUDGMENT Lalit Mohan Sharma, J.
1. The plaintiff filed a suit for specific performance of a contract of sale alleging that the defendants agreed orally on 28-6-1959 to execute a sale deed in his favour transferring the suit land for a sum of Rs. 7,200/-and that a sum of Rs. 200/- was paid by the plaintiff to the defendants. The parties agreed that the remaining amount of Rs. 7,000/- would be paid at the time of the execution of the sale deed. The plaintiff repeatedly requested the defendants to execute the documents but they put off the matter. A notice was ultimately sent formally requesting the defendant in that regard and a copy thereof has been admitted in evidence as Ext. 1. The plaintiff received a reply from the defendants through a lawyer which is Ext. 1/a denying the allegation made in Ext. 1 and asserting that the defendants were ready to perform their part of the contract and it was the plaintiff who was the defaulter. The plaintiff's statement about payment of a sum of Rs. 200/- to the defendants was mechanically denied in Ext. 1/a. The plaintiff thereafter filed the suit out of which this second appeal arises.
2. There were originally two defendants : Smt. Nageshwari Kuer and Smt. Janki Devi, the widow and daughter of late Shri Lakshmi Prasad. The suit land admittedly belonged to them. During the pendency of the case before the lower appellate court, Smt. Nageshwari Kuer died leaving behind her daughter Smt. Janki Devi, the present respondent, as her sole heir and legal representative. The suit was contested in the trial court jointly by the two defendants. They pleaded that the consideration for the sale deed was fixed at Rs. 17,200/- and it was the plaintiff who was avoiding to get the sale deed executed. Certain other pleas were also raised in the written statement and it does not appear essential to state them in view of the scope of the second appeal excepting one matter. The defendants denied to have received the sum of Rs. 200/- alleged by the plaintiff to have paid.
3. The trial court held that the consideration of the sale-deed was fixed at Rs. 7,200/- only, but the case of the plaintiff about the payment of a sum of Rs. 200/- out of it was incorrect. The court also, rejected the evidence led on behalf of the plaintiff for proving that a sum of Rs. 2,400/- payable to a mortgagee of the land was included in the price of Rs. 7,200/-. The court rejected the other pleas raised on 'behalf of the defence and decreed the suit holding that the plaintiff was entitled to get a sale deed executed in respect of the suit land by the defendants on payment of Rs. 7,200/- in cash, besides Rs. 2,400/-
payable by the plaintiff to. the prior mortgagee. Necessary directions were given in this regard.
4. The defendants appealed and the plaintiff-respondent filed a cross-objection challenging the finding of the trial court on the question of payment of the sum of Rs. 200/-. The lower appellate court agreed with the findings of the trial court that the price of the land had been fixed at Rs. 7,200/- besides the mortgage money and that the plaintiff had not made any part payment. The court further held that the plaintiff has been changing his stand from time to time about the consideration and other details of the agreement and his conduct was not fair; and that in the circumstances of the case, the defendants could not be considered to be dishonest. Proceeding further, the court held that the plaintiff was not ready and willing to perform his part of the contract and he was, therefore, not entitled to a decree in the suit. The appeal was accordingly allowed and the suit and cross-objection dismissed. The plaintiff has now come to this Court in second appeal.
5. Mr. Tara Kant Jha, learned counsel for the appellant, contended that the court was utterly wrong in thinking that the conduct of the defendants was not dishonest. They falsely claimed that the consideration for the sale deed had been fixed at an inflated amount and attempted to prove it by leading tainted evidence. On the other hand, the plaintiff was not guilty of a serious misconduct Although the plaintiff pleaded to have made a part payment of Rs. 200/-m he deposited the entire amount of Rs. 7,200/- in the trial court after the judgment was delivered. It is true that the plaintiff filed and pursued a cross-objection in the lower appellate court challenging the finding of the. trial court on the question of part payment but the plaintiff was ready and willing to pay the entire amount of Rs. 7,200/-, as. is evident by the fact of deposit. Mr. Jha submitted that in these circumstances the Court should exercise its discretion in favour of the plaintiff. He attempted to distinguish the judgment of this Court given on 9-4-1971 in S. A. 703 of 1968, produced and relied upon by the defendants before the lower appellate court.
6. The question which has been canvassed before me is whether the suit should be dismissed on the ground that the plaintiff has failed to aver and prove that he has been always ready and pilling to perform the essential terms of the contract which are to be performed by him. It has been a well established rule that a plaintiff in a suit for specific performance of an agreement must plead and prove that he was ready and willing to perform his part of the contract continuously between the contract and the date of hearing of the suit A reference may be made in this connection to the observations of the Privy Council in Ardeshir H. Mama v. Flora Sassoon (AIR 1928 PC 208 (216)) and by the Supreme Court in Gomathinayagam Pillai v. Palaniswami Nadar (AIR 1967 SC 868, para 6). This rule founded on the principle that he who seeks equity must do equity has been insisted upon by Courts with great rigor and has been included expressly by the legislature in Clause (c) of Section 16 of the Specific Relief Act. 1963. The readiness and willingness of the plaintiff to carry out his parts of the agreement must refer to the real agreement and the correct terms and he cannot be relieved of the responsibility and escape the consequences by pleading falsely.
7. In the present case, it has been concurrently found that the plaintiff did not make any part payment and it follows that he should have been ready and willing to pay that total amount of Rs. 7,200/- to the defendants. In the notice (Ext. 1) sent to the defendants before the filing of the suit, he falsely asserted in paragraph 3 to have paid a sum of Rs. 200/- and in paragraph 6 it was mentioned that the plaintiff was ready to pay the balance consideration money, that is, Rs. 7,000/- only. He made a similar assertion in para 12 of the plaint. The irresistible conclusion is that the plaintiff was ready and willing to pay a sum of Rs. 7,000/- only as the consideration for the sale deed when he sent the notice and when he filed the suit. His false pretence of having made part payment cannot help him in this regard. During the trial, the unwillingness of the plaintiff to pay the stipulated consideration money was emphasised, when he took the stand that the consideration money of Rs. 7,200/- included the amount of Rs. 2,400/- payable to a prior mortgagee. 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 and it is evident that the appellant was, in reality, unwilling during this period, I, therefore, agree with the court below that the suit must be dismissed. The observations made in the penultimate para of the judgment in S. A. 703/68 appear to support my view and it is not necessary to consider whether the said decision can be distinguished as I have come to my conclusion against the appellant independently.
8. The appellant also relied upon the decision in Tandra Venkata Subrahmanayam v. Vegesana Viswanadharaju (AIR 1968 Andh Pra 190) before the lower appellate court and also before me, but the learned single Judge who decided the case does not appear to have considered the point discussed above.
9. In the result, I hold that the plaintiff was not ready and willing to perform the terms of the agreement which are to be performed by him and he is, therefore, not entitled to a decree for specific performance. The appeal is accordingly dismissed with costs. Hearing fee is assessed at Rs. 100/-.