Allahabad High Court
Paras Nath vs Vishwanath on 24 August, 2020
Equivalent citations: AIRONLINE 2020 ALL 2086
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED Court No. 66 A.F.R. Case :- SECOND APPEAL No. - 1711 of 1991 Appellant :- Paras Nath Respondent :- Vishwanath Counsel for Appellant :- V.K.Singh,A.L. Tripathi,Ashok Kumar Jaiswal,Bhagwan Dutt Pandey,Dan Bahadur Yadav,N.K. Singh,Neeraj Shukla,S.K.Singh,Siddharth Jaiswal,V.K. Singh Counsel for Respondent :- Sailendra Kumar,Dharmendra Kumar Nirankar,R.P. Ram,Ram Avtar Pandey,Ram Dular Patel,S.M.A Abdy,S.M.A. Abdy,Shailendra Kumar Pandey,Vinod Kumar Maurya Hon'ble J.J. Munir,J.
1. This is a plaintiffs' second appeal arising from a suit for specific performance of contract.
2. Original Suit No. 305 of 1987 was instituted in the Court of the City Munsif, Jaunpur by Parasnath and Smt. Sitawi against Vishwanath. They claimed specific performance of a registered agreement to sell dated 8th March, 1984, executed in favour of the two plaintiffs aforesaid by Vishwanath, the sole defendant. The agreement is about the covenanted sale of an unpartitioned 1/3rd share in agricultural land admeasuring a total of six decimals. The land aforesaid, at the time of execution of the agreement to sell, bore Plot No. 851. During consolidation operations, the plot has been renumbered as 791 with no change to its identity, areas or boundaries. The land, subject matter of agreement, is located at Mauja Deepakpur, Pargana Garhvara, Teshil Machhlishahar, District Jaunpur. One-third unpartitioned share in Plot No. 791, last mentioned, subject matter of agreement to sell dated 08.03.1984 between parties, is hereinafter referred to as ''the suit property'. The suit property shall, however, be referred to, about its details mentioned in the plaint, by its full particulars and boundaries, in schedule ''Aa' and ''Ba' while setting forth the parties' case. The original plaintiffs, who are the two appellants here, died pending appeal. Both the plaintiff-appellants, which includes their respective heirs and legal representatives, shall be referred to hereinafter as ''the plaintiffs', except where an individual reference is made to either of them. Vishwanath, the sole defendant to the suit is the sole respondent to this appeal. He shall hereinafter be referred to as ''the defendant'.
3. The plaintiffs brought this suit with assertions to the effect that property detailed in schedule Aa is a joint property of the defendant and his brothers numbering two, Bahadur and Jangali. The said property is a bhumidhari of the three brothers, held jointly in equal share, antedating the last Chakbandi. During the last Chakbandi, it was settled with the defendant and his two brothers. It is averred that in the property described in schedule Aa to the plaint, the defendant holds a 1/3rd share that works out to two decimals. The plaintiffs and the defendant negotiated terms where the plaintiffs settled with the defendant to purchase the suit property (1/3rd share in the land described in schedule Aa) for a sale consideration of Rs.6000/-. The defendant accepted the terms. In accordance with the terms settled between parties, the defendant executed the suit agreement in favour of the plaintiffs on 08.03.1984, agreeing to convey the suit property for a total sale consideration of Rs.6000/- in favour of the plaintiffs. The defendant received an earnest of Rs.2000/- at the time of execution of the suit agreement, leaving a residue of 4000/- that was agreed between parties to be payable at the time of execution of the sale deed. The suit agreement was registered as document No. 693 in Book No. 1, Volume No. 1187 and recorded at page Nos. 255-256 in the Office of the Sub Registrar. The suit agreement carried a covenant that a sale deed would be executed in favour of the plaintiffs within a period of three years of the date of execution of the agreement under reference.
4. The plaintiffs allege that the defendant asked them to pay varying sums of money out of the residue of Rs.4000/- payable towards the agreed sale consideration, at different points of time, which the plaintiffs paid. These part payments, according to the plaintiffs, aggregate to a sum of Rs.2500/-. This sum of Rs.2500/-, paid by the plaintiffs to the defendant, stands appropriated towards the agreed sale consideration which together with the earnest initially paid, left a residue of Rs.1500/- to be made good at the time of execution of the sale deed. It is then pleaded that in the ensuing Chakbandi, the property shown in schedule ''Aa' of which the suit property is a part, has been renumbered as Plot No. 791 carrying with it no change in identity, location or dimensions. The new number assigned to the plot, of which the suit property is a part, is 791 admeasuring six decimals. It is averred that except for the nominal change of the plot number, the defendant and his two brothers continue to be bhumidhars of the plot which constitutes their Chak. This renumbered plot of the defendant and his brothers, of which the suit property is a part with its new number, has been detailed in schedule ''Ba' to the plaint.
5. It is then averred in the plaint, as originally framed, that the plaintiffs have always been ready and willing and are still ready and willing to perform their part of the suit agreement, by securing execution of a sale deed and its registration in terms of the agreement, last mentioned, upon payment of the balance sum of Rs.1500/- due to the defendant. It is also averred that the remainder four decimals of land comprising property described in schedule Aa to the plaint has been purchased by Smt. Sitawi, plaintiff no. 2 and her son, Shyambihari through a duly executed sale deed. The defendant alone retains the suit property out of the total of six decimals. The defendant is thus left with two decimals. The plaintiffs within the period of three years called upon the defendant, through a notice dated 21.01.1987 sent by registered post, to execute a sale deed in their favour, in accordance with the terms of the suit agreement. The notice aforesaid was served upon the defendant but led to no action on their part; or a reply. The plaintiffs have also pleaded that being cognizant of the defendant's mala fides, the plaintiffs further caused a notice dated 12.03.1987 to be served upon the defendant, through registered post, calling upon him to execute a sale deed in terms of the suit agreement within seven days of receipt. It was indicated that if the demand in the notice was not complied with, they would be compelled to bring action. The notice aforesaid, was served upon the defendant who chose not to respond or comply. The plaintiffs, accordingly, instituted the present suit on 09.04.1987, claiming a decree for specific performance of the suit agreement, upon the defendant, accepting the balance sale consideration of Rs.1500/-, by executing a sale deed in their favour conveying the suit property, out of that described in schedule ''Ba' to the plaint and to put the plaintiffs in ownership possession. It has also been prayed that in the event of default on the defendant's part to comply with the decree, the decree be executed through process of Court.
6. It must be remarked here that a perusal of the relief clause shows that, coupled with the direction sought requiring execution of the sale deed by the defendant in the plaintiffs' favour, there is a specific prayer asking that the defendant be ordered to deliver possession of the suit property to the plaintiffs. A perusal of the description of the suit property (material part) detailed in schedule ''Ba' to the plaint reads to the following effect (translated into English from Hindi vernacular):
"1. Details of land comprising schedule ''Ba' situate at Mauja Deepakpur, Pargana Garhvara, Teshil Machhlishahar, District Jaunpur:
1/3 part, to wit, -02 decimals towards East in plot no. 791 admeasuring -06 decimals boundaries- North field of Ramkuber, South-Pakka Road Balwarganj, Belwar Road, East-field of Kailash Narayan Singh, West- remainder of the plot in question"
7. It must also be remarked here that though in the averments carried in the plaint, the suit agreement is clearly about a 1/3rd share in the property described in schedule Aa, the remainder of which is held by the defendant's brothers, the boundaries of schedule ''Aa' property are the same schedule ''Ba'. The boundaries and the description of the suit property given in schedule Aa, read to the following effect ( translated into English from Hindi vernacular):
"1. Details of property comprising schedule Aa situate at Mauja Deepakpur, Pargana Garhvara, Tehsil Machhalishahar, District Jaunpur:
1/3 part, to wit, two desimals in Arazi No. 851/6/1 towards East, - 06 according to the boundaries indicated in schedule Ba above."
8. The defendant filed his written statement traversing the plaint allegations. It was pleaded that the going price of the suit property is about Rs.50,000/-. The defendant is not a literate man. He can sign his name with great difficulty. The defendant was in need of money and asked the plaintiff to loan him a sum of Rs.2000/-. The plaintiffs agreed to give him on loan the required sum of 2000/-, subject to execution of a document described as a Makfool (an Arabic word for a security or mortgage bond). It is pleaded that the defendant went to the Sub Registrar's office at Machhalishahar in order to execute a security bond and sign the document, that lateron turned out to be an agreement to sell. He signed it believing it to be a security bond. The suit agreement was registered. It is averred that the suit agreement was not read out or explained to the defendant. It was secured through a conspiracy between the plaintiffs and the witnesses. The defendant never signed the suit agreement, understanding it to be an agreement to sell. The defendant never received any notice from the plaintiffs. It is also averred that the defendant was never paid a further sum of Rs.2500/-, in parts or installments, by the plaintiffs. The identity of the suit property which the plaintiffs have detailed, is absolutely incorrect. The suit property, as it exists on the spot, is not at all described in the suit agreement. The suit agreement, therefore, does not create any interests in the suit property and does not attach any obligations to it.
9. It must be remarked here that the defendant described the document that he signed as a Makfool in paragraph 11 of his written statement. The Trial Court in its judgment, that would be alluded to in due course, has also described the defendant's understanding about the character of the document as a Makfool. The lower Appellate Court too has described the defendant's claim, about his understanding of the suit agreement as a Makfool. There is absolutely no explanation in either of the two judgments, or elsewhere, about what a Makfool means. This Court and the learned Counsel for the parties were clueless about the word. After considerable exertions, this Court was able to find the following meaning of the word Makfool in the Urdu-Hindi Shabdkosh, compiled by Mohammad Mustafa Khan ''Maddah' (Second Edition, 1972), published by Hindi Samiti, Hindi Bhawan, Mahatma Gandhi Marg, Lucknow: "मक्फूल (word in Urdu script) अ. वि. - रेहन रखा हुआ, गिरौ, बंधक". This word appears to be one employed in Old Court Language, which has survived in use from the Medieval Era. It is not commonly understood by men of contemporary education. This Court would have appreciated if either of the two Courts below had used a translation of the word, in Hindi or English, or taken care to explain the word, once the defendant had used it in his written statement.
10. The Trial Court on the pleadings of the parties, struck the following issues (translated into English from Hindi vernacular):
"1. Whether the defendant covenanted with the plaintiff to sell the suit property and according to the said covenant executed the agreement to sell dated 08.03.1984?
2. Whether in peformance of the agreement to sell dated 08.03.1984, the defendant received of the plaintiff a sum of Rs.2500/-on different dates piecemeal?
3. Whether the plaintiff has been ready and willing to perform his part of the suit agreement?
4. Whether the plaintiffs got the agreement dated 08.03.1984 executed by the defendant by playing fraud?
5. Whether the suit agreement is not capable of performance in view of the assertions in paragraph 19 of the written statement?
6. Whether the suit is barred by limitation?
7. Whether the suit is barred by Section 16 and 20(2) of the Specific Relief Act?
8. Whether the plaintiffs are entitled to any relief?"
11. It appears that on behalf of the plaintiffs, Parasnath, plaintiff No. 1 entered the witness box and testified as PW-1, whereas one Jumman Khan also testified on behalf of the plaintiffs as PW-2. Documentary evidence was also led on behalf of the plaintiffs that comprises the suit agreement in original, a carbon copy of the notice dated 21.01.1987, a registered postal receipt relative to the said notice, a copy of the notice dated 12.03.1987, a registered postal receipt related to the last mentioned notice, an extract of the Khatauni, a copy of CH Form 41 and an acknowledgment card of delivery by registered post (relative to the notice dated 12.03.1987). On the defendant's side, Vishwanath, the sole defendant entered the box and testified as DW-1. No other evidence, oral or documentary, was led on behalf of the defendant. The Trial Court decided issues nos. 1 and 4, in favour of the plaintiff and against the defendant, in the manner that the execution of the suit agreement was held proved and the case of fraud, on the plaintiff's part in securing the suit agreement, was negated. The second issue was answered against the plaintiff in the negative, holding that the plaintiff had not been able to establish that he paid a sum of Rs.2500/-, from time to time, towards the agreed sale consideration. Issue no. 3 was also decided in the negative, holding that the plaintiff had not proved that he was ready and willing, according to the terms of the suit agreement, to get the sale deed executed. Issue no. 5 was again answered in the negative, against the defendant and in favour of the plaintiff, holding that renumbering of the plot, of which the suit property is a part, did not change its identity at all. It was only a change in its number, with no other change, including boundaries. In answer to issue no. 7 it was held, that plaintiff had not been able to establish his claim to specific performance, in accordance with the Section 16 of the Specific Relief Act. The provisions of Section 20 of the said Act, were not attracted. Issue no. 8 was decided in the manner that the plaintiff was held, not entitled to the relief of specific performance. He was, however, left free to take appropriate proceedings for the recovery of Rs.2000/- paid as earnest. The learned City Munsif, Jaunpur who tried this suit and returned the aforesaid findings, dismissed the suit with costs by his judgment and decree dated 23rd May, 1989.
12. The plaintiffs carried an appeal to the learned District Judge, Jaunpur. The appeal was lodged on 30.05.1989. It was admitted to hearing on the said date and by an interim injunction, the defendant was restrained from transferring the suit property till further orders. The appeal aforesaid was numbered as Appeal No. 136 of 1989 and assigned for determination to the Court of the learned Special Judge/Additional District Judge, Jaunpur. The learned Additional District Judge, Jaunpur proceeded to hear the appeal, framing three points for determination, to wit (translated into English from Hindi vernacular):
"1. Whether the defendant entered into the suit agreement dated 08.03.1984 after understanding its terms?
2. Whether the plaintiff has been ever ready and willing for the performance of his part of his suit agreement?
3. Whether the suit is barred by Section 16 (c) of the Specific Relief Act?"
13. Pending appeal before the lower Appellate Court, the plaintiffs sought amendment to the plaint, seeking to add a case that they claimed was clarificatory of their stand. This case was to the effect that though they paid a sum of Rs.2500/-, piecemeal to the defendant, post execution of the suit agreement, a fact which the defendant has not denied in response to the notice of demand for performance served upon him by the plaintiffs, but the defendant was ready and willing and are still ready and willing to secure execution of the sale deed in their favour, upon payment of the balance sale consideration of Rs.4000/-. This amendment was allowed by the lower Appellate Court vide order dated 03.03.1990. An additional written statement was filed on 22.03.1990. The plaintiffs entered the witness box, before the lower Appellate Court, in order to support the amended plea.
14. The lower Appellate Court determined the first point in favour of the plaintiffs, holding that the defendant had entered into the suit agreement dated 08.03.1984 understanding its terms, and accepted an earnest of Rs.2000/-. He was not defrauded, in any manner, about the character of the document which the defendant got registered. The second and the third point for the determination, however, were both decided against the plaintiff and in favour of the defendant. The lower Appellate Court, in consequence, ordered the plaintiffs appeal to be dismissed with costs.
15. Aggrieved, the present appeal has been filed.
16. This appeal was admitted to hearing, on a substantial question of law that was formulated by this Court, adopting Question No. (iii) framed in the memorandum of appeal. Thus, this appeal was admitted on the following substantial question of law:-
"(iii) Whether the findings given by the Court below about non-readiness and willingness on the part of the plaintiffs, can be legally sustained, in the facts and circumstances of the present case?"
17. This Court, at the time of hearing the appeal, was of opinion that two further substantial questions of law were involved, which ought to be formulated and the parties heard. Accordingly, on hearing learned Counsel for the parties, this court vide order dated 26.02.2020 proceeded to frame two substantial questions of law, in addition to the one already formulated, which read as follows:
"1. Whether failure by the plaintiff to establish that he has paid the claimed sum of money out of the total sale consideration as accelerated payment, leads to an inference about his failure as to readiness and willingness within the meaning of Section 16(c) Specific Relief Act?"
2. Whether an amendment to the plea regarding readiness and willingness made at the appellate stage, notwithstanding the amendment being granted, can be proved in accordance with the requirement of Section 16(c) Specific Relief Act?"
18. This appeal has been heard on all the three substantial questions of law, that is to say, the one formulated vide order dated 01.11.1991 while admitting the appeal, and the two further substantial questions, framed vide order dated 26.02.2020.
19. Heard Sri B.D. Pandey, learned Counsel for the plaintiffs and Sri S.M.A. Abdy, learned Counsel appearing for the defendant.
20. Sri B.D. Pandey, learned Counsel for the plaintiffs submits that substantial question of law no. (iii) ought to be answered in their favour inasmuch as the findings of both courts below, about the plaintiffs failure to establish their readiness and willingness, are perverse. He has urged that the finding proceeds on the reasoning that the plaintiffs having failed to establish payment of Rs.2500/- post execution of the suit agreement, their case about readiness and willingness fails, because the plaintiffs were not ready and willing to secure execution on payment of the balance sale consideration of Rs.4000/-. Rather, they were ready and willing to pay what they assert to be their remainder liability: a sum of Rs.1500/- only. Learned Counsel submits that this perspective of the courts below is inherently flawed. According to him, it is technical and flimsy, rather than being wholesome and substantial. It is urged by Mr. Pandey that the plaintiffs' case is to be judged on the basis of his amended pleadings. The amendment that he sought to the plaint, before the lower Appellate Court, would relate back to the institution of the suit. The amendment is clarificatory in nature and does not introduce a new or inherently inconsistent case. Therefore, according to Mr. Pandey, the amendments to the plaint ought to be read as an integral part of the plaintiffs' case. The Courts below, according to learned Counsel for the plaintiffs, have committed a manifest error of law in looking at the amendment as a changed stand of the plaintiffs from which they have inferred failure to establish readiness and willingness.
21. Repelling the submissions of the learned Counsel for the plaintiffs, Mr. S.M.A. Abdy, learned Counsel for the defendant has submitted that both courts below have concurrently held that the plaintiffs were not ready and willing to perform their part of the suit agreement, so as to entitle them to a decree for specific performance. He submits that the finding about the plaintiffs, not being ready and willing to perform their part of contract within the meaning of Section 16(c) Specific Relief Act, betray no such fallacy of approach that may vitiate that conclusion. According to learned Counsel for the defendant, the findings on the issue proceed on a correct perspective of the law, on the standards whereof evidence has been evaluated, to draw conclusions that are in no way perverse. Learned Counsel submits, therefore, that substantial question of law no. (iii) does not at all arise.
22. It is also argued that grant of relief of specific performance is discretionary and the discretion is to be exercised not arbitrarily. The court is not bound to grant specific performance, merely because it is lawful to do so. In this case, according to learned Counsel for the defendant, the Courts below have rightly exercised that discretion.
23. It is urged that failure of the plaintiffs to establish readiness and willingness, is evident from the fact that all through the trial they set up a case that of the agreed sale consideration of Rs.6000/-, he paid Rs.2000/- at the time of execution of the suit agreement and Rs.2500/- post execution, piecemeal. Lateron, after suffering an adverse judgment in the Trial Court, the plaintiffs amended the plaint before the lower Appellate Court, to plead as an alternative case that they dubbed as a clarification, to show that they were always ready and willing and are still ready and willing to pay the entire balance sale consideration in the sum of Rs.4000/-. This, the learned Counsel for the defendant says, introduces a contradiction in the plaintiffs' stand, rather than clarifying it. It does not show the plaintiffs bona fides which are essential to be proved in order to entitle the plaintiffs to a decree for specific performance.
24. In support of his contention, learned Counsel for the defendant has placed reliance upon the decision of the Supreme Court in Man Kaur (Dead) by LRs vs. Hartar Singh Sangha, (2010) 10 SCC 512. He has drawn the attention of the Court to paragraph 23 of the report, where it is held:
"23. The respondent next relied upon the following observations of this Court in Aniglase Yohannan v. Ramlatha [(2005) 7 SCC 534] : (SCC p. 540, para 12) "12. The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief."
This Court further held that the averments relating to readiness and willingness are not a mathematical formula which should be expressed in specific words and if the averments in the plaint as a whole, do clearly indicate the readiness and willingness of the plaintiff to fulfil his part of the obligations under the contract, the fact that the wording was different, will not militate against the readiness and willingness of the plaintiff. The above observations cannot be construed as requiring only a pleading in regard to readiness and willingness and not "proof" relating to readiness and willingness. In fact, in the very next para, this Court clarified that Section 16(c) of the Act mandates the plaintiff to aver in the plaint and establish the fact by evidence aliunde that he has always been ready and willing to perform his part of the contract. Therefore, the decision merely reiterates the need for both pleadings and proof in regard to readiness and willingness of the plaintiff."
25. Learned Counsel for the defendant has further placed reliance on the decision of the Supreme Court in Dheeraj Developers Private Limited vs. Om Prakash Gupta and others, (2016) 12 SCC 397. He has drawn support from the following remarks of their Lordships of the Supreme Court in Dheeraj Developers Private Limited (supra):
"4. We have referred to the factual matrix only to a very limited extent for the reason that the High Court apparently has gone wrong in decreeing the suit only on the basis of the finding on genuineness of Ext. P-1 document. It should have been borne in mind that the suit was for specific performance and obviously there were also several other aspects of the matter including the aspect of readiness and willingness which required consideration by the High Court."
26. This Court has considered the submissions advanced by learned Counsel and perused the record. The question, about readiness and willingness of the plaintiffs to perform their part of the contract, is a sine qua non for the Court to grant specific performance. The proposition is too well settled to brook doubt that specific performance is not to be granted, merely because it is lawful to do so. This principle of law has developed in the face of a presumption engrafted in explanation (i), appended to Section 10 of the Specific Relief Act, 1963 (as it stood prior to amendment by Act 18 of 2018, which governs this suit). Section 10 of Specific Relief Act (supra), is quoted in extenso:
"10. Cases in which specific performance of contract enforceable.--Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the court, be enforced--
(a) when there exists no standard for ascertaining the actual damage caused by the non performance of the act agreed to be done; or
(b) when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief.
Explanation.--Unless and until the contrary is proved, the court shall presume--
(i) that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money; and
(ii) that the breach of a contract to transfer moveable property can be so relieved except in the following cases--
(a) where the property is not an ordinary article of commerce, or is of special value or interest to the plaintiff, or consists of goods which are not easily obtainable in the market;
(b) where the property is held by the defendant as the agent or trustee of the plaintiff."
27. The principle that holds that specific performance cannot be granted merely because it is lawful to do so, is largely built on the edifice of Section 16 (c) and the explanation (i) appended to Section 10 of the Specific Relief Act. Section 16(c) is extracted infra:
"16. Personal bars to relief.-
(a) x x
(b) x x
(c) [who fails to prove] that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.
Explanation.- For the purposes of clause (c),-
(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;
(ii) the plaintiff [must prove] aver performance of, or readiness and willingness to perform, the contract according to its true construction.
28. The principle engrafted in Section 16(c) has been introduced in the statute as a personal bar to relief. This implies that the bar to relief envisaged under Section 16(c), is something extraneous to the contract and personal to the parties. It is not a bar arising from the terms of the contract per se but about the manner in which the parties act and conduct themselves, in reference to the contract. This statutory feature, that governs the remedy of specific performance, has its origins in equity that was administered at one point of time in England as a separate branch of the legal system with all its Courts and principles different from the common law and the Courts where the latter was administered. Since long, the distinction between law and equity has ceased to exist in England, and so far as our country is concerned, principles, both of common law and equity, are all expressed through statutes enacted by the competent legislature. Nevertheless, like many other telltale watershed, the principles developed in the old equity jurisdiction in England, can be seen peeping behind principles of law, all enmeshed in the same statute. The principles in Section 16(c), or for that matter the remedy of specific performance, have all to be understood as products of the old equity jurisdiction.
29. What the learned Counsel for the plaintiffs here desires to say is that it was their case that out of the agreed total sale consideration minus the earnest of Rs.2000/-, they have paid an additional sum of Rs.2500/- piecemeal. However, implicit in his pleading was his stand that if that case of his be not accepted, he was and is still ready and willing to perform his part of the contract by paying to the defendant the balance sale consideration of Rs.4000/-. He further urges, that in the pleadings initially framed, this implicit stand of the plaintiff was not all that vivid. Therefore, he applied to make it explicit, by introducing it in the plaint through amendment, before the lower Appellate Court. The amendment was granted. The amendment would relate back to the time when he filed his suit. He has also supported the amended plea, by entering the witness box before lower Appellate Court and proving his case regarding readiness and willingness, with reference to the balance sale consideration of Rs.4000/-.
30. Readiness and willingness are no words of art. Both carry different and well acknowledged connotations. Whereas ''readiness' implies the financial capacity to discharge one's part of the contract, ''willingness' refers to the psychological or mental inclination, to go ahead with the contract. Now, the plaintiffs took a clear stand in the plaint, as originally framed, that the total sale consideration was Rs.6000/-. Of this agreed sale consideration, they paid the defendant earnest in the sum of Rs.2000/- at the time of execution and registration of the suit agreement. They further paid a sum of Rs.2500/-, piecemeal, prior to commencement of action. There is not the slightest plea in the plaint expressing a case that if the sum of Rs.2500/- claimed to be paid by the defendant be not held proved, they were and still are ready and willing to pay the balance sale consideration of Rs.4000/- in performance of their part of the contract. If the said plea had been there in the plaint as an alternate plea, it would clearly indicate the bona fides of the plaintiffs about their readiness and willingness. Not only the plaint, the testimony in the dock does not remotely indicate their mind about the alternative above indicated. In his examination-in-chief dated 30.05.1989, PW-1, Parasnath has stated:
"मोयदा के बाद विश्वनाथ को हम लोगो ने २५००/- दो किस्तों में अदा भी किया । अब महज विश्वनाथ को १५००/- देना बाकी है जिसको मैं देने को तैयार हूँ"
31. All through the trial and until judgment, there was not as much as a hint in the plaintiffs' case that they had any time contemplated performing their part of the contract, in any other manner, but by paying the defendant a sum of Rs.1500/-. The plaintiffs, until judgment by the Trial Court never made allowance for the contingency that there claim about further payment of a sum of Rs.2500/-, post execution of the suit agreement and prior to commencement of action, might not be proved. They had in their firm contemplation always, that the part of the contract left to be performed by them was payment of a sum of Rs.1500/-, and may be, their liability towards expenses of execution and registration, whatever it might have entailed. They never had in mind, that in any contingency they were ready and willing to perform their part of the contract that involved payment of the balance of Rs.4000/- to the defendant. Now, this Court may also remark that the plaintiffs believed that their claim about the further payment of a sum of Rs.2500/- was iron cast and all that they need pay the defendant was a sum of Rs.1500/-. The plaintiffs, therefore, harbored and proceeded on the belief that all that they had to do, to perform the substantial part of their contract, was to pay the defendant a sum of Rs.1500/-.
32. This Court must also remark that the belief was based on very flimsy ground. It was not a reasonable belief, looking to the fact that the plaintiffs had no written acknowledgment or receipt to prove that they had paid the defendant a sum of Rs.2500/-, piecemeal. Both the Courts below did not accept if for a fact, in the absence of any evidence produced by the plaintiffs to prove, that they had paid the defendant a sum of Rs 2500/- from time to time. Once the plaintiffs found that their claim had been negatived by the Trial Court, about payment of the further sum of Rs.2500/-, they introduced, through a very clever amendment, a case that notwithstanding their claim about the further payment of Rs.2500/- they were ever ready and willing to perform their part of the contract by paying the balance of Rs.4000/-. They introduced the said amendment, persuading the lower Appellate Court to accept it, as a clarificatory piece of pleading. In the clear opinion of this Court, the pleading was not at all clarificatory; that is what the the lower Appellate Court has also determined, at the hearing of the appeal. It was clearly a plea that was inherently compatible with the plaintiffs' case originally pleaded and on the basis of which, the trial went through. The amended pleading at the appellate stage brings about a fundamental alteration to the plaintiffs' case going to the root of the matter. This plea, which has been introduced through the amendment, as rightly remarked by the lower Appellate Court, ought to have been done at the earliest stage when the suit was before the Trial Court. It could then be regarded as an alternative plea, made bona fide, which had to be supported by evidence in the witness box during trial. Introducing this plea at the appellate stage, shows lack of bona fides on the plaintiffs part.
33. Now, this Court's conclusion, that disinclination of the plaintiffs to pay the balance sale consideration as settled and their insistence upon something lesser as good performance, would countervail a case of readiness and willingness on the plaintiffs' part, finds support in the principle laid down by the Supreme Court in Pramod Building and Developers Private Limited vs. Shanta Chopra, (2011) 4 SCC 741. The facts giving rise to the suit for specific performance in Pramod Building and Developers Private Limited (supra) are succinctly set out in paragraphs Nos. 12 and 13 of the report, that read:
"12. The appellant's case is as under: It is a builder. It agreed to purchase the property for construction of a residential apartment building. The respondent failed to furnish the mutation certificate showing that the property was registered in her name in the records of the Municipal Corporation and failed to produce the up-to-date tax-paid receipts. The appellant therefore demanded that the respondent should give an affidavit and bank guarantee confirming that all municipal taxes had been paid and there were no arrears of municipal taxes. Subsequently, it did not even insist upon the affidavit and required the respondent to give a letter of undertaking and indemnity bond to that effect. The respondent did not comply with the said reasonable demand and refused to clear the tax dues. The respondent was duty-bound to make out a good and satisfactory title and that meant that she had to satisfy the appellant that all municipal taxes had been paid in regard to the property. The respondent failed to discharge this basic obligation and thereby committed breach.
13. The case of the respondent is as under: there was an arbitrary assessment of tax by the municipal authorities in regard to the property and therefore, she had filed a suit (Suit No. 712 of 1976 on the file of the Sub-Judge, First Class, Delhi). The court had decreed the said suit and directed the municipal authorities to make a fresh assessment in the light of its observations. There was no fresh assessment or demand by the Municipal Corporation for payment of tax. Therefore, she could not pay the municipal taxes and produce receipts. She had informed the appellant about the said dispute and had confirmed that in terms of the agreement, if and when the municipal authorities made the final assessment and made a demand in terms of such assessment, she would bear and pay the said taxes up to the date of sale. In this background, the question of her giving any affidavit or other document confirming that all taxes up-to-date were paid did not arise, as the sale agreement itself contained appropriate provision in that behalf. When matters stood thus, though the appellant had secured a demand draft towards the balance price of Rs.34,00,000 and she was ready to attend the Sub-Registrar's office and execute the sale deed by receiving the said sum, the appellant insisted that she should either pay Rs.5,00,000 to it towards municipal taxes or clear all municipal taxes due before the sale, as it apprehended that its construction project was likely to be affected. As she was not agreeable to meet the said illegal demand and pay Rs.5,00,000, the appellant was not ready to proceed with the sale. As the appellant refused to pay the entire balance consideration of Rs.34,00,000 in terms of the agreement and get the sale completed, she had no alternative but to terminate the contract on 22-6-1989."
34. It was in the context of the defendant's stand in Pramod Building and Developers Private Limited (supra), regarding abatement of the agreed sale consideration on account of property taxes due, that their Lordships of the Supreme Court held:
"18. As rightly held by the High Court, it was for the plaintiff who approached the Court to prove that he was ready and willing to perform the contract. The plaintiff in a suit for specific performance, cannot obviously succeed unless he proved that he was ready and willing to perform the contract. The exhaustive correspondence between the parties clearly discloses the respective stands of the parties. Even the prayer in the plaint shows that the appellant was not ready to pay the entire balance of Rs.34,00,000 as agreed under the agreement of sale but that the plaintiff insisted upon the appellant to pay the municipal taxes before the sale, as a condition for sale. If the appellant was not willing to pay Rs.34 lakhs at the time of sale, as specifically agreed under the agreement of sale, the appellant could not claim that it was ready and willing to perform its obligations."
35. The principle discernible in Pramod Building and Developers Private Limited (supra) comes to no more than this that a plaintiff asking for an abatement to the agreed sale consideration, not covenanted between parties to indemnify against a future property tax liability, demonstrates lack of readiness and willingness. In Pramod Building and Developers Private Limited (supra), it was a claimed abatement to the agreed sale consideration on account of the future tax liability that was held to show lack of readiness and willingness. In the present case, the abatement to the agreed sale consideration has been claimed by the plaintiffs on an absolute and positive plea about an accelerated payment of the agreed sale consideration in part, which the plaintiffs have failed to prove. As already noticed, there is no alternate plea initially urged that the plaintiffs would pay the entire unabated balance, in the event of their failure to prove accelerated payment of a further part of the sale consideration. As such, apart from what this Court has said on the strength of the principle in Pramod Building and Developers Pvt. Limited (supra), the plaintiffs must be held to have failed in their endeavor to prove readiness and willingness.
36. It is an accepted principle that an amendment once granted, relates back to the date of commencement of action or whenever the amending pleading was initially put in, depending on the nature of the amendment or the cause that has necessitated it. That is what the principle governing pleadings and amendments to the pleadings say. But, here the issue before the Court is about the statutory requirements of readiness and willingness that the plaintiffs must prove without blemish, in order to entitle them to specific performance. The amendment, though technically relates back to the time when the suit was instituted but, what this Court has already said in much detail, the point in time when it has been made and the manner in which it has been sought, besides the terms of the amendment, clearly show it to be a clever manoeuvre of the plaintiffs. Specific performance requires the plaintiffs to show bona fides vis-a-vis their claim from the date of the contract and throughout trial of the action. Any manoeuvre or a shifting stand like the one that this case presents, undoubtedly excludes bona fides of the plaintiffs, dis-entitling them to specific performance. The view that this Court takes finds support in the authority of their Lordship of the Supreme Court in Aniglase Yohannan vs. Ramlatha and others, (2005) 7 SCC 534. It Aniglase Yohannan has been held in paragraph 12 of the report:
"12. The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief."
37. The question as to whether readiness and willingness has been proved in a particular case, is ultimately a question of fact that has to be judged on the basis of facts, evidence, circumstances and other surrounding factors appearing about the issue. The two Courts of fact below have not gone wrong fundamentally, in applying the law to exclude readiness and willingness. It is not for this Court, therefore, to substitute a possible alternative for what the courts below have concluded. It would be relevant here, again about the principles to judge readiness and willingness to refer to the decision of the Supreme Court in Madhukar Nivrutti Jagtap and others vs. Smt. Pramilabai Chandulal Parandekar and others, (2019) SCC Online SC 1026, where it has been held:
"41. The question as to whether the plaintiff seeking specific performance has been ready and willing to perform his part of the contract is required to be examined with reference to all the facts and the surrounding factors of the given case. The requirement is not that the plaintiff should continuously approach the defendant with payment or make incessant requests for performance. For the relief of specific performance, which is essentially a species of equity but has got statutory recognition in terms of the Specific Relief Act, 1963, the plaintiff must be found standing with the contract and the plaintiff's conduct should not be carrying any such blameworthiness so as to be considered inequitable. The requirement of readiness and willingness of the plaintiff is not theoretical in nature but is essentially a question of fact, which needs to be determined with reference to the pleadings and evidence of parties as also to all the material circumstances having bearing on the conduct of parties, the plaintiff in particular. In view of the contentions urged, we have scanned through the record to examine if the finding of the High Court in this regard calls for any interference."
38. This Court, therefore, answer substantial question No. (iii) in the affirmative, in the terms indicated in the body of this judgment. Substantial question no. 1 (framed on 26.02.2020) is answered in the affirmative in terms that where the plaintiff fails to prove his singular case of accelerated payment of the sale consideration, it would be reasonable to infer his failure to establish readiness and willingness within the meaning of Section 16(c) of the Specific Relief Act. Substantial question no. 2 (framed on 26.02.2020) is answered in the negative, in terms that an amendment to the plea regarding readiness and willingness granted at the appellate stage, if one that lacks bona fides on the plaintiff's part, cannot be proved in accordance with the requirements of Section 16(c), Specific Relief Act.
39. In view of what has been determined by this Court, the plaintiffs have not been able to make out a case entitling them to relief in this appeal from the appellate decree.
40. In the result, this appeal fails and is dismissed with costs in all Courts.
41. Let a decree be drawn up, accordingly.
Order Date :- 24.8.2020 BKM/-