Andhra HC (Pre-Telangana)
Sakamuri Sivarambabu And Anr. vs Parasad Sunjan Raju on 17 February, 1992
Equivalent citations: 1992(1)ALT583
JUDGMENT Bhaskar Rao , J.
1. The plaintiff-appellants preferred this C.M.A. against an order of the Subordinate Judge, Guntur, returning the plaint in C.F.R. No. 11515 of 91 (Unnumbered Original Suit) with a direction to deposit the balance sale-consideration for purposes of entertaining the suit for specific performance of the agreement of sale.
2. The brief facts relevant for the present purpose are: On 10-12-1990 the defendant-respondent executed an agreement of sale in respect of plaint 'A' schedule properties in favour of the plaintiffs for a total consideration of Rs. 6,40,000/- and received on the very same day an amount of Rs. 50,000/-(Rs. 25,000/- in cash and the balance of Rs. 25.000/- through cheque) towards advance purchase money agreeing to execute the regular sale-deed in the names of the plaintiffs or their nominees. Subsequently, the plaintiffs also paid Rs. 90,000/- on 22-12-90 and Rs. 20,000/- on 20-4-'91. They also made arrangements for payment of the balance through the Life Insurance Corporation of India and that in fact the LIC had sanctioned a loan of Rs. 3,10,000/- to the 1st plaintiff and Rs. 1,70,000/- to the 2nd plaintiff. Inasmuch as the defendant was not co-operating with the plaintiffs in the execution of the regular sale-deed, they were forced to issue a registered notice on 12-7-'91 and ultimately file the present suit for specific performance of the agreement of sale.
3. The plaint was filed with the requisite stamps representing Court-fee and after complying with the other formalities. However, the Court below through the orders under appeal returned the plaint with a direction to the plaintiffs to deposit the balance of sale-consideration. Hence this miscellaneous appeal assailing the said order.
4. The main contention of the learned counsel for the appellant-plaintiffs is that the Court below has no jurisdiction to direct deposit of the balance sale-consideration for purposes of registering the plaint and entertaining the suit. He submitted that to establish bona fides and readiness to perform their part of the contract, it is not necessary that the plaintiffs should deposit the balance of sale-consideration. He also submitted that Section 16(c) of the Specific Relief Act does not contemplate depositing of the balance sale-consideration for purposes of entertaining the suit. The learned counsel for the respondent, on the other hand, contended that the Court below has ample power to direct depositing the balance sale-consideration, more so, when it is heavy running in lakhs, and therefore no interference of this Court is called for. He also contended that the order is only returning the plaint, against which no appeal lies under Order 43. On this count, according to the learned counsel, the appeal is liable to be dismissed.
5. In view of these contentions, the main question for consideration is, whether the Civil Court has got jurisdiction to return the plaint with a direction to deposit the balance of sale-consideration for purposes of entertaining the suit filed for specific performance of the agreement of sale.
6. Section 26 of the Civil Procedure Code dealing with the institution of suits prescribes that every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. Order VII, Rule 1 speaks of the particulars a plaint is to contain. Rule 3 deals with suits subject-matter of which is immoveable property. It states: "Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. Rule 5 prescribes that the plaint shall show that the defendant is or claims to be interested in the subject-matter, and that he is liable to be called upon to answer the plaintiff demand. Rule 10 refers to the Return of plaint. It states that the plaint shall at any stage of the suit be returned to be presented to the Court m which the suit should have been instituted. These are the rules relevant for the present purpose governing the entertaining and return of the plaint. Again rule 20 of the Civil Rules of Practice, dealing with Presentation of Proceedings' states:
"(1) All plaints, written statements, applications, and other proceedings and documents may be presented to or filed in court by delivering the same by the party in person or by his recognised agent or by his Advocate or by a duly registered clerk of the Advocate to the Chief Ministerial Officer of the Court or such other officers as may be designated for the purpose by the Judge before 4-00 p.m. on any working day.
Provided that in case where the limitation expires on the same day they may be received by a Judge even after 4-00 p.m. (2) The Officer to whom such documents were presented shall at once endorse on the documents the date of presentation, the value of the stamp fixed, and, if the proceedings, are thereby instituted, shall insert the serial number.
(3) In case of paper bearing court fee stamps, he shall, if required issue a receipt in form No. 17 in Appendix III-L to these rules.
(4) Every plaint or proceeding presented to or filed in Court shall be accompanied by as many copies on plain paper of the plaint or proceeding and the document referred to in Rule 16, as there are defendants or respondents unless the Court otherwise dispenses with such copies of the documents by reason of their length or for any other sufficient reason."
Rule 22 of the Civil Rules of Practice, prescribing the procedure on presentation, runs thus:
"(1) On presentation of every plaint the same shall be entered in Register No. 17 in Appendix II, Part II, Volume II and examined by the Chief Ministerial Officer of the Court.
(2) If he finds that the plaint complies with all the requirements, he shall make an endorsement on the plaint 'Examined and may be Registered' with the date and his signature and placed before the Judge. The Chief Ministerial Officer shall also endorse on the plaint or proceedings if any caveat has been filed. If he thinks that the plaint shall be returned for presentation to the proper Court or be rejected under Order VII, Rule 11 or for any other reason, he shall place the matter before the Judge for orders.
(3) Subject to the provisions of Sub-rule (2), any non-compliance with these rules or any clerical mistake may be required by the Chief Ministerial Officer to be rectified. Any rectification so effected, shall be initialled and dated by the party or his advocate making the same and the Chief Ministerial Officer shall note the number of corrections in the margin and shall initial and date the same.
In the event of such rectification not being made within the time specified, the Chief Ministerial Officer shall place the matter before the Judge for Order's."
Rule 23 is in respect of registration of plaint and it says that on examination, where the plaint is found to be in order, it shall be entered in the register of suits, and the Judge shall pass orders as to the issue of summons or otherwise.
7. It needs to be pointed out here itself that it is not the case on hand that any one of the referred provisions of the Civil Procedure Code or of the Civil Rules of Practice are not complied with or followed. It is also not the case that there are any other provisions on the aspect that in a suit for specific performance, the plaintiff in order to prove his readiness and willingness to fulfil his part of the contract has to deposit the balance consideration of the sale even for purposes of instituting the suit. In the case on hand the matter was at the threshold and not even registration of the plaint as a suit has taken place. Further Section 16(c) of the Specific Relief Act says:
"16. Personal bar to relief: Specific performance of a contract cannot be enforced in favour of a person-
(a)...
(b)...
(c) who fails to aver and 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 purpose 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 aver performance of, or readiness and willingness to perform, the contract according to its true construction."
Explanation (i) as extracted states that in cases where payment of money is involved, it is not that essential for the plaintiff to actually tender or deposit the money, except when so directed by the Court. The direction to deposit the money is as a matter of exception, the general rule being that there is no necessity of the money being deposited in order to prove one's own readiness or willingness to perform his part of the contract. Further the direction envisaged by the explanation as a measure of exception cannot be understood as one at the inception stage of the suit for purposes of registering the plaint and entertaining the suit. Even the decisions relied upon by the Court below, viz., 1974 (2) MLJ page 62 and 1976 (2) MLJ page 397, clearly lay down that it is not essential to the plaintiff to actually tender the money involved or deposit the money in the Court, except when so specifically directed by the Court. This exception does not mean that the Court has jurisdiction to issue direction for deposit of balance consideration even at the inception stage of the proceedings, i.e., at the stage of registering and entertaining the suit. What all required by Section 16(c) of the Specific Relief Act is that the plaintiff should aver performance of, or readiness and willingness to perform, his part of the contract. Admittedly, there is such an averment and in fact certain money was paid even at the time of entering into the agreement, some more later on, and the balance money is obtained by the plaintiffs as a loan sanctioned by the Life Insurance Corporation and there are specific averments in this behalf made in the plaint.
8. In a matter similar to the one on hand, this Court in C.R.P.902/91 dated 20-3-1991 set aside the order of the lower court directing deposit of the balance consideration and directed the lower Court to register the plaint and pass appropriate orders, subject of course complying with formalities other than this. In view of all this, we find that the order under appeal is one made without jurisdiction and accordingly it is liable to be set aside.
9. Now, turning to the other contention that the order under appeal is not one covered by Order 43 C.P.C., and therefore the present appeal is not maintainable. True, Order 43, Rule 1 (a) of the Code of Civil Procedure speaks, of only orders passed returning a plaint to be presented to the proper Court and does not envisage a return with a direction to deposit the balance consideration. Dealing with a similar question, the Madras High Court in Somasundaram v. Muthumanicka, AIR 1932 Madras 714 held that even in matters where the order passed by the trial Court is not appealable and still the appeal happened to be entertained the High Court in a revision can revise the original order of the trial Court by setting aside the appellate order. While so holding the Madras High Court referred to the decision in Andrew Anthony v. Dupant, (1882 (4) Mad. 217) rendered by Sir Charles Turner C.J., and Kindersley, J. The Madras High Court extracted the observations of the learned Judges thus:
"The High Court can interfere under Section 622 (equivalent to Section 115 of the present C.P.C) of the Code without an application made to it by a party to the suit: See also Batcha Saheb v. Abdul Gany (AIR 1914 Mad. 675), Bai Kanta Nath v. Sita Nath (1911 (38) Cal. 421) and Fisher v. Kanakasabapathy (1910 (5) I.C. 742) (under Small Causes Courts Act), Debt Das v. Ejaz Hussain (1905 (28) All. 72) and Puran Mal v. Janaki Pershad Singh (1901 (28) Cal. 680)"
Apart from all this, under Article 227 of the Constitution of India, as held in Waryam v. Amar and Banerjee v. P.R. Mukherjee (1953 SCR 302), it is settled law that the power of superintendence conferred upon this Court by Article 227 is not confined to administrative superintendence only, but includes the power of judicial revision also even where no appeal or revision lies to the High Court under the ordinary law. In view of this case law, even assuming that no appeal is provided to this Court against orders of return of the plaint with a direction to deposit the balance sale-consideration, still not only as an inherent nature of power but also under Article 227 of the Constitution of India this Court can set aside erroneous orders passed by the subordinate Courts.
10. In the result, the order impugned in this appeal is set aside and the Court below is directed to register the plaint, if otherwise in order, and proceed ahead according to law. No costs.