Patna High Court
Badru Nisha @ Madhuri Devi vs Yogendra Prasad Sinha on 7 February, 2006
Equivalent citations: AIR2006PAT71, AIR 2006 PATNA 71, 2006 (4) ALL LJ NOC 707, 2006 (4) ABR (NOC) 668 (PAT), 2006 (2) AIR JHAR R 681, 2006 (3) AKAR (NOC) 411 (PAT), 2006 AIHC NOC 227, (2006) 4 CIVLJ 787, 2006 BLJR 1 637, (2007) 1 CURCC 331
Author: Syed Md. Mahfooz Alam
Bench: Syed Md. Mahfooz Alam
JUDGMENT Syed Md. Mahfooz Alam, J.
Page 637
1. This second appeal has been preferred against the judgment and decree dated 26th May, 1986 passed by Ist Additional District Judge, Begusarai in S.J.T.A. No. 8 of 1981 / 14 of 1982 whereby the learned Additional District Judge has been pleased to set aside the judgment and decree dated 1.4.1981 and 14,4.1981, respectively, passed by Sri Nagendra Narayan Singh, 3rd Additional Subordinate Judge, Begusarai in Title Suit No. 100 of 1977 / 17 of 1981 decreeing the suit of the plaintiff for specific performance of the contract.
2. The brief facts of the case are that the plaintiff-appellant has brought a suit for specific performance of contract against the defendant-respondent claiming relief Page 638 for issuing direction to the defendant-respondent to execute a sale deed in favour of the plaintiff-appellant in respect of 10 dhurs of land and the house standing thereof appertaining to Khesra No. 87 Khata No. 96 situated in Mohalla Lohianagar, Begusarai.
3. The case of the plaintiff-appellant is that in the year 1,974 the defendant-respondent approached and requested the plaintiff-appellant to purchase a portion of his land measuring 10 dhurs with the house standing thereon situated in Mohalla Lohianagar appertaining to Khata No. 96 Khesra No. 87 for a consideration of Rs. 7,000/- as the defendant was in urgent need of money. The plaintiff accepted the proposal and agreed to purchase the land and the house standing thereon and accordingly, an agreement to sell (Mahadanama) was executed on 19.12.1974 after payment of Rs. 3500/- towards part consideration money. The plaintiff-appellant agreed and promised to pay the rest amount (Rs. 3500) at the time of execution of the sale deed. The defendant-respondent promised to execute the sale deed by 30th Baisakh 1382 Fasli corresponding to 25.6.1975 after receiving the rest amount from the plaintiff. It was also stipulated that in case of failure to execute the sale deed, the defendant-respondent will return back the advance money forthwith. Further case is that after execution of the Mahadanama, the defendant delivered the possession of the land and the house to the plaintiff and since then the plaintiff was residing in the said house. Further case is that the plaintiff-appellant through her husband repeatedly requested the defendant-appellant to execute the sale deed but the defendant-respondent on one pretext or the other remained postponing the issue then the plaintiff-respondent sent a lawyer's notice through Shri Brijnandan Rai, Advocate upon the defendant for execution of the sale deed but he refused to receive the same. From the action. conduct, manner and behaviour of the defendant, the plaintiff could understand that the defendant was not ready to execute the sale deed. It is further stated that the plaintiff was always ready and willing to pay rest of the consideration money and to get the sale deed executed but the defendant was never ready and willing to perform his part of the contract and so necessity of filing of the suit arose and the plaintiff-appellant filed the suit against the defendant for specific performance of the contract.
4. From perusal of the record it appears that the defendant appeared in the suit and by filing written statement, controverted the Claim of the plaintiff. The case of the defendant, in short, is that it is true that on 19.12.1983 a Mahadanama was executed by the defendant whereby the defendant agreed to sell the suit land along with the house standing thereon for a valuable consideration of Rs. 7000/- and in token of Mahadanama the plaintiff also paid Rs. 3500/- to the defendant and it was agreed that the rest amount will be paid at the time of execution of the Sale deed which was to be executed by 30th Baisakh 1382 Fasli corresponding to 25.6.1975. It is further stated that after execution of the Mahadanama the defendant was always ready and willing to execute the sale deed on receipt of the balance consideration money but the plaintiff always put off the matter due to which the sale deed could not be executed within the stipulated period. Further case of the defendant was that from much before the date of execution of Mahadanama, the plaintiff was residing in the suit house as tenant of the defendant on monthly rental of Rs. 25/- only and after execution of the Mahadanama she was allowed to continue in the said house as tenant but thereafter the plaintiff stopped the payment of rent of the suit house and became defaulter and so she is liable to be evicted from the suit house. The prayer was to dismiss the suit of the plaintiff.
Page 639
5. On the basis of the pleadings of both the parties the trial court framed as many as eight issues and after making discussions on the issues the trial court decreed the suit of the plaintiff-appellant and directed the defendants-respondent to execute the sale deed within 60 days from, the date of the order on payment of Rs. 3500/- the balance consideration amount by the plaintiff. The trial court further ordered that it the defendant fails to execute the sale deed within the stipulated period, the plaintiff will be entitled to get the sale deed executed through process of court.
6. Against the said judgment and decree, the defendant-respondent preferred appeal which was disposed of by the Ist Additional District Judge, Begusarai on 26th May, 1986 whereby the learned, Ist Additional District Judge reversed the findings of the trial court and held that the plaintiff was not entitled to get a decree for specific performance of contract. Against the said judgment of reversal this second appeal has been preferred by the plaintiff-appellant.
7. From perusal of the record of this second appeal it appears that while admitting the appeal for hearing on 4.8.1987, the following substantial questions of law were formulated for determination in this appeal:-
(i) Whether the court of appeal below was correct in holding that the time was the essence of contract?
(ii) Whether the court of appeal below was correct in law in holding, while reversing the finding of the trial Court that the plaintiff was not always ready and willing to perform her part of the contract ?
Thus, before this Court there are two substantial questions of law which should be answered.
Substantial Question of Law No. (i)
8. It has been submitted by the learned Advocate of the appellant that while considering the point as to whether the plaintiff is entitled to a decree for specific performance of contract, the learned first appellate court has arrived at a finding that time was the essence of the contract and it was the duty of the plaintiff-appellant to get the sale deed executed by the date fixed. The learned Advocate of the appellant submitted that this finding of the first appellate court is erroneous and cannot be sustained under law. Before referring the submission of the learned Advocate of the appellant and the decisions referred by him, I would like to refer the findings of the learned first appellate court in this regard. The learned first appellate court has discussed this point in paragraphs 9, 10 and 11 of his judgment. I would like to quote his observation at para-11 of his judgment in this regard which is as follows :-
11) Thus, in order to consider the case of the parties it is essential to determine first whether in Ext. 5 the Mahdanama, the parties intended to make the time an essence of the contract. On perusal of the recitals in the Mahdanama it appears that the executant appellant (defendant) was in pressing need for money to pay off his liabilities. He decided to sell his residential building including the house. There is nothing on the record to show that the defendant appellant had any other residential building and as such the sale of his only building will clearly indicate some urgent purpose for which the money was to be raised by selling the building, It is further recited in the Mahadnama that, the appellant-defendant promised to execute the sale deed by 30th Mah Baisakh 1982 and to realise the balance consideration money. Recital further indicated that it Page 640 was made obligatory on the part of the plaintiff respondent to get the sale deed executed and if she could not get the sale deed executed by the date fixed, in that eventuality the appellant-defendant will return the entire consideration money and in which none of the parties will make any objection and if any objection will be raised that will be illegal and not binding. The Mahdanama leads to only conclusion that the time was the essence of the contract and it was the duty of the plaintiff respondent to get the sale deed executed by the date fixed.
9. The above referred paragraph from the appellate court's judgment show that the learned appellate court after making discussion on the recital of: Mahadnama (Ext. 5) came to the conclusion, that the Mahadnama was to be executed within the stipulated period i.e. 25th May 1975 and so, the learned first appellate court held, that the time was the essence of the contract. The submission of the learned Advocate of the appellant is that this finding of the learned appellate court is erroneous and against law. In this regard he has, placed reliance upon the decision reported in AIR 1981 Patna 69. He referred paragraph 10 of the said decision and I would like to quote the said para :-
So far the legal position is concerned the rule of equity which is now the, general rule of English Jurisprudence, is to look at the whole scope of the transaction to see whether the parties really meant the time named to be the essence of the contract. This principle is fully engrafted in Section 55 of the Indian Contract Act. The position in law is that even where the time is not of the essence of the contract, the court may after that in the circumstances of the case it has to ' be performed within a reasonable time, and it will depend upon the intention of the parties which has to be, ascertained (1) from the expressed stipulation of the contract; (2) from the nature of the property ; arid (3) from the surrounding circumstances, I may at this stage itself observe that there are a large number of decisions to hold that where there is nothing in the' surrounding circumstances from which such an intention can be inferred, the fact that the contract is for the sale of land does not import such an intention and the mere fact that a date has been mentioned for the purpose of the agreement does not conclusively prove that time was intended to be of the essence of the contract. Further, whether time is of the essence of the contract or not, very much depends upon the nature of the property, upon the construction of the contract and upon the objects which the parties had in entering into it. In equity, if the contract relates to sale of immovable property, it would normally be presumed that time was not of the essence of the contract. Mere incorporation in the written agreement of a clause imposing penalty in case of default, does not by itself evidence an intention to make time of the essence. Reference in support of these propositions can be at once made to a decision of the Supreme Court in the case of G. Pilial v. Pulani Swami . It is in this background that the case in hand has to be examined.
Then there are also two well settled propositions in law, namely, (1) When the time was not originally of the essence of the contract, it could be made so by a later Page 641 notice, either before or after the day named in the contract requiring completion by a particular day if time allowed is reasonable. The question of reasonableness, however, must be determined as on the date when the notice is given as the time specified by the notice must be reasonable to the sense that enough time should be given to the other party for the doing of the things required in a proper manner. (2) If time is of the essence of the contract, that may be waived by the conduct of the parties.
10. Relying upon the abovementioned decision, the learned Advocate of the appellant submitted that there is settled law that if a contract relates to sale of immovable property then in that case normally it should be presumed that the time was not the essence of the contract. In this regard he also placed reliance upon the decision (P. Purushottam Reddy and Anr. appellants v. Protap Steels Ltd. Respondent). He quoted some lines from paragraph 8 of the decision which are as follows :-
It is a well-settled principle that in the case of sale of immovable property, time is never regarded as the essence of the contract. In fact, there is a presumption against time being the essence of the contract. This principle is not in any way different from that obtainable in England. Under the law of equity which governs the rights of the parties in the case of specific performance of the contract to sell real estate, law looks not at the letter but at the substance of the agreement. It has to be ascertained whether under the terms of the contract the parties named a specific time within which completion was to take place, really and in substance it was intended that it should be completed within a reasonable time. An intention to make time the essence of the contract must be expressed in unequivocal language.
xxx xxx xxx ...in the case of sale of immovable property there is no presumption as to time, being the essence of the contract. Even if it is not of the essence of the contract the Court may infer that it is to be performed in a reasonable time if the conditions are:
1. From the express terms of the contract;
2. from, the nature of the property; and
3. from the surrounding circumstances, for example : the object of making the contract.
11. According to the argument of the learned Advocate of the appellant, the finding of the learned first appellate court is against the settled principle of law according to which in a contract relating to immovable property the general principle is that the time is not the essence of the contract.
12. The contention of the learned Advocate of the respondent is that the facts of both the decisions " referred by the learned Advocate of the appellant are different from the facts of this case. He submitted that in the case reported in AIR 1981 Patna 69, the time fixed for execution of the sale deed was 31.12.1963 and before expiry of the said period, the plaintiff sent a registered notice as well as Page 642 telegram on 30.12.1963 asking the defendant to execute the sale deed but so far this case is concerned, it is the admitted case of the plaintiff that he sent the notice to the defendant after expiry of the stipulated period within which the sale deed was to be executed. He further submitted that so far the fact of the case reported in AIR 2002 Supreme Court 771 is concerned, it is also different from the facts of this case and according to the terms of contract of the said case, time fixed for execution of the sale deed could be extended by mutual consent of the parties but so far as this case is concerned, there is nothing to show that as per the terms of the contract, time could have been extended and so, both the decisions, referred above, do not apply in this case. The learned Advocate of the respondent further argued that there is nothing in the decisions referred above that in the case of contract of sale of immovable property no time can be fixed for execution of the sale deed or for fulfilling obligation of the parties under the terms of the contract within a certain period. What the decision says is that the intention to make time the essence of the contract should be and must be expressed and in unequivocal language. I am also of the view that although the general principle is that in the case of sale of immovable property time is never regarded as the essence of the contract as there is a presumption against time being the essence of the contract but if under the terms of the contract the parties intended to fix certain date for completion of the contract, such intention to make time the essence of the contract must be expressed and in unequivocal language. In the background of my above, I would like to see - whether the finding of the first appellate court that the time was the essence of the contract is correct or not. The deed of agreement is Ext. 5 in this case and the learned appellate court while making discussion on the deed of agreement (Ext. 5) has quoted certain lines from the said deed which is at para-11 of his judgment. I could also like to quote these lines:-
It was further recited...that the appellant-defendant promised to execute the sale deed by 30th Mah Baisakh 1982 and to realise the balance consideration money, Recital further indicated that it was made obligatory on the part of the plaintiff respondent to get the sale deed executed and if she could not get the sale deed executed by the date fixed in that eventuality the appellant defendant will return the entire consideration money and in which none of the parties will make any objection.
This recital of the deed of the agreement (Ext. 5) establishes beyond doubt that there was clear and unequivocal intention of the parties to get the sale deed executed by 30th Baisakh 1982 Fasli corresponding to 25th 1975 and in case of failure, there was clear understanding/stipulation that in that event the plaintiff will be entitled to get back the entire money paid by her to the defendant: by way of advance and neither party will have any grievance against each other. This goes to show that there was clear intention on the part of the parties that the contract was to be performed within a fixed period. This intention was further made clear by adding additional clause for penalty, that is, in case of failure to perform the contract within the stipulated period, the result will be that in that event the plaintiff will be entitled to get back the money paid by her to the defendant by was advance i.e. Rs. 3500/-, Besides that the conduct of the plaintiff also establishes that of the sale deed was knowing full well that the execution of the sale deed was to be made by 30th Baisakh 1982 Fasli responding to 25th May, 1975 and that is why she sent the lawyer's notice to the defendant on 26th May 1975 i.e. immediately after expiry of the stipulated Page 643 period, for performing his part of contract. I am of the view that although this notice was sent for the purpose of this suit after expiry of the time within which the contract should have been performed but the notice is important for coming to the conclusion that the plaintiff was fully aware of the fact that the sale deed was to be executed by 25th May, 1975 and that is why she gave lawyer's notice to the defendant immediately after the expiry of the stipalated period. In such view of the matter. I am of the opinion that the learned first appellate court has rightly held that the time was the essence of the contract. Accordingly, this substantial question of law is answered against the appellant.
Substantial Question of Law No. (ii)
13. It has been argued on behalf of the appellant that as per the finding of the trial court, the plaintiff was always ready and willing to perform her part of the contract but this finding of the trial court was reversed by the first appellate court which is against the material available on record. From perusal of paragraph 21 of the judgment of the first appellate court it appears that on this point the finding of the first appellate court is as follows :-
Thus on a careful perusal of the entire evidence available on the record I come to a finding that the plaintiff respondent was not ready and willing to execute her part of the contract and it was due to laches on her part that the sale deed could not be executed within the stipulated period. In this view of the matter, the plaintiff respondent was not entitled to get a decree for specific performance of the contract. The learned lower court was in error in decreeing the suit as aforesaid and directing the defendant for execution of the sale deed.
The submission of the learned Advocate of the appellant is that this finding of the learned appellate court is not based on the oral as well as documentary evidence available on record and the learned first appellate court has not correctly appreciated the oral as well as documentary evidence available on record in this regard. Against the said argument of the learned Advocate of the appellant, the learned Advocate of the respondent argued that in second appeal this Court is not empowered to re-appreciate the evidence available on record and in this regard he has placed reliance upon the decision reported in (2001) 9 Supreme Court Cases 521 (Pakeerappa Rai, appellant v. Seethamma Hengsu (Dead by LRS.) and Ors. respondents) He referred red following lines from paragraph 2 of the said decision which is as follows :-
But the High Court in exercise of: power under Section 100 CPC cannot interfere with the erroneous finding of fact howsoever gross the error seems to be.
As against this, the learned Advocate of the appellant has argued that the court of first appeal being the final court of fact is bound to look into the evidence of the parties from all aspects and a mechanical reference to the oral evidence cannot be held to be a consideration of the: evidence in the eye of law and, therefore, this Court is empowered, to look into the matter as to whether the first appellate court has properly appreciated the evidence available on record or not and if the Court comes to the conclusion that the first appellate court has not properly appreciated the evidence available on record, in that circumstance the proper course will be to remand the suit for proper appreciation of the evidence available on record and in Page 644 this regard he placed reliance upon the decision reported in 1979 BBCJ 585 (Bibi Tahzibunissa, appellant v. Dr. Syed Azizur Rahman, respondent).
14. It is settled principle of law that as per the provision of Section 100 CPC in second appeal this Court is not entitled to re-appreciate the evidence adduced on behalf of the parties unless it is found that the finding of the first appellate court is perverse and not based on the evidence available on record and in this regard I place reliance upon the decision of the Hon'ble Supreme Court reported in 2005 (2) BBCJ (IV) (Manicka Possali (D) by Lrs. and Ors. appellants v. Anjalai Ammai and Anr. respondents). The relevant paragraph from the said decision is quoted below :-
Paragraph - 17 of the Judgment :-"This judgment was followed by this Court in Civil Appeal No. 2292 of 1989 Govindaraju v. Marriamman , In Govindaraju case (supra) it has been held that the High Court while, exercising its powers under Section 100 of the Code of Civil Procedure on re-appreciation of the evidence cannot, set aside the findings of the fact recorded by the first appellate court unless the High Court comes to the conclusion that the findings recorded by the first appellate court were perverse i.e. based on misreading of evidence or based on no evidence.
15. Let me see - whether the learned first appellate court has properly appreciated the evidence adduced on behalf of the parties or not. At paragraph 12 of his judgment, the first appellate court has discussed this point. In this connection he has observed at paragraph 12 of his judgment that in a suit for specific performance of an agreement the plaintiff has not only to aver that he was ready and willing to perform his part of the contract from the date of the contract to the time of the hearing of the suit; but he has also to prove the same if that averment is contravened. Failure to make such an averment and to prove it, would bring with it the inevitable, dismissal of the suit. I am of the view that this observation of the first appellate court is in accordance with law.
16. From perusal of the plaint it appears that although at para 9 of the plaint the plaintiff has averred that she was and is always ready and willing to pay the rest consideration money and to get the sale deed executed but the defendant never became ready and willing to perform the rest part of contract to execute the sale deed. At para 5 of the plaint the plaintiff has averred that the plaintiff through her husband repeatedly requested the defendant to execute sale deed in her favour but he went on postponing the matter of execution of sale deed on some pretext or the other.
17. It appears that plaintiff Bedru Nisha @ Madhuri Devi has been examined in the suit as P.W. 8 and at para 6 of her deposition she has deposed that after the execution of Mahadanama she asked the defendant on several occasions to execute the sale deed but on one pretext or the other the defendant postponed the matter. In paragraph 12 of her cross-examination on this point she deposed that she asked the defendant about 20-25 times to execute the sale deed but when she was confronted to give any exact date she said that she did not remember any date, month or year of making the demand for execution of the sale deed. This goes to show that her statement that she was repeatedly; asking the defendant for execution of the sale deed is untrue, Like P.W. 8 (plaintiff), her husband Basudeo Choudhary, Page 645 who has been examined as P.W.7 in the suit, has also failed to give any specific date on which date he went to the house of the defendant for making payment of part consideration money and asking him to execute the sale deed rather his evidence at para 5 shows that when he went to the house of defendant Yogendra Prasad Sinha for making payment of part consideration money, the defendant refused to accept the money and also refused to execute the sale deed. At para 6 P.W. 7 (the husband of the plaintiff) has further deposed that when the defendant refused to execute the sale deed he sent pleader's notice to the defendant asking him to execute the sale deed which was not accepted by the defendant. Admittedly, the pleader's notice was sent to the defendant on 26.6.1975 meaning thereby that on that very date the plaintiff and P.W. 7. Who is the husband of the plaintiff, had knowledge that the defendant had refused to accept the part consideration amount and to execute the sale deed but even then the plaintiff did not file suit immediately thereafter for specific performance of contract rather the plaintiff filed the suit in the year 1977 after expiry of the period of more than two years from the date of giving pleader's notice. This fact establishes that the plaintiff has no money with her to make payment of the remaining amount of Rs. 3500/- and as such she was not in a position to perform her part of the contract and, therefore, the averment made in the plaint and the evidence that the plaintiff was always ready and willing to perform her part of the contract, appears to be not believable. I am, therefore, of the opinion that the first appellate court has rightly held that the (sic) was not always and willing to perform (sic) part of the contract. Accordingly, this (sic) question of law is answered.
17. In the result, I do not find any merit in the second appeal and as such, the same is hereby dismissed and the judgment and decree of the first appellate court whereby the first appellate court has dismissed the suit of the plaintiff for specific performance of contract are hereby upheld. However, in the circumstances of the case, there will be not order (sic).