Rajasthan High Court - Jaipur
Dinesh Kumar Saxena S/O Shri Mohan Lal vs Vikas Priya S/O Shri Vishwa Priya ... on 26 May, 2023
Author: Mahendar Kumar Goyal
Bench: Mahendar Kumar Goyal
[2023/RJJP/010945]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 189/2020
Dinesh Kumar Saxena S/o Shri Mohan Lal, Retired Employee,
Instrumentation Limited, Kota. R/o House No. 367, Karballa
Road, Ladpura Kota.
--Defendant-Appellant
Versus
Vikas Priya S/o Shri Vishwa Priya, Earlier Minor Through His
Guardian And Next Friend Mukut Behari Sharma Now Major, R/o
Bhatapada, Rampura Kota Raj.
--Plaintiff-Respondent
For Appellant(s) : Shri A.K. Sharma, Sr. Advocate with Shri V.K. Sharma For Respondent(s) : Shri N.K. Maloo, Sr. Advocate with Shri Vishnu Bohra HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL Judgement Reserved on : : 02.05.2023 Judgement Pronounced on : : 26.05.2023 The civil suit no.65/1993 filed by the respondent-plaintiff (for brevity-`the plaintiff') seeking specific performance of the agreement dated 26.2.1989 came to be decreed by the learned Civil Judge, Junior Division, Kota (for brevity-`the learned trial court') vide judgement dated 1.9.2005 and the civil regular appeal no.21/2005 (CIS 113/2005) preferred thereagainst by the appellant/defendant (for brevity-the defendant') has been dismissed by the learned Additional District Judge No.2, Kota (for brevity-`the learned appellate court') vide judgement and decree dated 20.2.2020.
(Downloaded on 11/11/2023 at 05:37:03 PM) [2023/RJJP/010945] (2 of 22) [CSA-189/2020] The relevant facts in brief are that the plaintiff filed a suit stating therein that vide sale agreement dated 26.2.1989, the defendant agreed to sell his agricultural land comprising of khasra nos.156 and 157 measuring 0.74 hectares and 0.64 hectares respectively situated in Naya Nohra, Tehsil Ladpura, District Kota to him for a sale consideration of Rs.50,000 out of which the defendant received a sum of Rs.25,000 in cash and a sum of Rs.6,000 through cheque no.CA 188/47 on that very day and possession of the subject property was handed over to him. It was stated that despite repeated requests and service of notices upon the defendant, he avoided execution of the sale deed whereas, the plaintiff was always ready and willing to perform his part of the agreement. Therefore, the decree of specific performance was prayed for.
The defendant in his written statement admitting the receipt of cheque worth Rs.6000 and possession of the subject land being with the plaintiff, submitted that it was not in pursuance of subject agreement. In special plea, it was submitted that he has received no consideration under the sale agreement dated 26.2.1989. It was averred that under an agreement executed in the year 1986, he agreed to sell the subject land in favour of wife of Shri Mukut Bihari, the guardian of the plaintiff and prior thereto, possession of the subject land was already handed over by him to Shri Mukut Bihari for cultivation for a consideration of Rs.2,000 per year. It was stated that since the agreement was not complied with by Shri Mukut Bihari, it came to an end. Execution of any sale agreement in between the parties was specifically denied by the defendant.
(Downloaded on 11/11/2023 at 05:37:03 PM) [2023/RJJP/010945] (3 of 22) [CSA-189/2020] On the basis of pleadings of the parties, the learned trial court framed six issues including relief. After recording evidence of the respective parties, the learned trial court decreed the suit vide judgement dated 1.9.2005. The civil first appeal preferred thereagainst by the defendant was dismissed by the learned appellate court vide judgement and decree dated 19.8.2006; but, the matter was remanded back to it by this Court vide judgement dated 18.7.2017 in S.B. Civil Second Appeal No.430/2006 to decide it afresh. Thereafter, the civil first appeal has again been dismissed by the learned appellate court vide judgement and decree dated 20.2.2020.
Assailing the impugned judgement and decree, Shri A.K. Sharma, learned senior counsel for the defendant made two fold submissions; (1) despite it being a suit for specific performance, no issue was framed with regard to readiness and willingness of the plaintiff to perform his part of agreement and (2) even otherwise also, the plaintiff could not prove the same.
Elaborating his submissions, Shri Sharma submitted that in a suit filed for specific performance, it is imperative for the plaintiff to plead and establish his readiness and willingness to perform his part of contract and a specific issue must be framed in this regard. Inviting attention of this Court towards the judgement dated 1.9.2005, he submits that since no such issue was framed therein, the findings recorded on this aspect by the learned courts against him without putting him to its notice, cannot be sustained in the eye of law. He further submits that had such specific issue been framed, the appellant could have proved by leading evidence that the plaintiff was not continuously ready and willing to perform his (Downloaded on 11/11/2023 at 05:37:03 PM) [2023/RJJP/010945] (4 of 22) [CSA-189/2020] part of the contract. Learned senior counsel in this regard relied upon the judgement of Hon'ble Apex Court in V.S. Ramakrishnan vs. P.M. Muhammed Ali-
MANU/SC/1465/2022 and a coordinate bench judgement of this Court in the case of Karan Singh Vs. Ram Lal-2014 (2) WLC (Raj.) 252.
Shri Sharma, learned senior counsel further submitted that even otherwise also, the learned courts did not appreciate that the plaintiff was not able to establish his readiness and willingness to perform his part of contract from the evidence on record. He submits that the learned courts have erred in relying upon the Under Postal Certificate (UPC) receipts submitted by the plaintiff to show that he has served several notices upon the defendant requiring him to execute the sale deed in absence of production of copy of letters sent through such UPCs which, otherwise also, have no evidentiary value. He in this regard, referred to a judgement of Hon'ble Apex Court in the case of Shiv Kumar vs. State of Haryana-(1994) 4 SCC 445.
He contended that under the said agreement dated 26.2.1989, the period fixed for getting the sale deed registered was one year, i.e., upto 25.2.1990; however, for almost three years, the plaintiff did not take any step to perform his part of the contract.
The learned senior counsel, inviting attention of this Court towards the Ex.3, amended parcha lagan, would submit that the subject land was mortgaged with the Bank of India and without getting it redeemed, the same could not have been transferred. (Downloaded on 11/11/2023 at 05:37:03 PM) [2023/RJJP/010945] (5 of 22) [CSA-189/2020] He contended that the plaintiff did not take any step to repay the loan amount in spite of admission in the legal notice dated 21.9.1992 that he has received a sum of Rs.4,000 from the defendant to repay the bank loan. Shri Sharma asserted that despite having a power of attorney (Ex.2) executed by him in the plaintiff's favour, he did not take any step to execute the sale deed. He submits that in the aforesaid circumstances, it is established that the plaintiff was never ready and willing to perform his part of the contract. He, therefore, submits that the civil second appeal be allowed, the judgement and decree dated 20.2.2020 be quashed and set aside and the suit filed by the plaintiff be dismissed.
Per contra, Shri N.K. Maloo, learned senior counsel submits that even if no issue with regard to readiness and willingness of the plaintiff to perform his part of the contract was framed, it caused no prejudice to the defendant. He contended that there were specific pleadings of both the parties in this regard and evidence was also led on this issue by both of them conscious of its involvement in the case.
Learned senior counsel submitted that the defendant has taken no such objection previously at any stage of proceeding. Referring to the judgement of this Court dated 18.7.2017 in S.B. Civil Second Appeal No.430/2006 preferred against the dismissal of his first appeal by the learned appellate court vide judgement and decree dated 19.8.2006, he submitted that the appeal was admitted formulating two substantial questions of law out of which one question was as under:
(Downloaded on 11/11/2023 at 05:37:03 PM)
[2023/RJJP/010945] (6 of 22) [CSA-189/2020] "Whether the plaintiff has been able to establish a legal evidence about the readiness and willingness to perform his part of contract?"
Learned senior counsel submitted that therein also, the defendant did not make any such submission that non-framing of issue in this regard has prejudiced his case. Shri Maloo in this regard also referred to an application filed by the defendant under Order 14 Rule 5 CPC before the learned trial court after the trial was over wherein, he prayed for framing an issue with regard to readiness and willingness of the plaintiff to perform his part of the contract which came to be dismissed by the learned trial court vide order dated 3.12.2003 which has attained finality.
He submits that in the aforesaid circumstances, it does not lie in the mouth of the defendant to contend that non-framing of the issue on this aspect caused prejudice to him. He in this regard placed reliance on the judgement of the Hon'ble Supreme Court of India in P. Purshottam Reddy and & Anr. vs. Pratap Steels Ltd.-(2002) 2 SCC 686 and coordinate bench judgements of this Court in Kirpal Singh vs. Mst. Kartaro & Ors.-AIR 1980 Rajasthan 212 and Ramratan vs. Bulkidas through His L.Rs.-(2001) 1 RLW 194. Distinguishing the judgement of the Hon'ble Supreme Court in the case of V.S. Ramakrishnan (supra), learned senior counsel submitted that since the burden of proof to establish his readiness and willingness in a case for specific performance is always upon the plaintiff, their Lordships have held that its non-framing caused (Downloaded on 11/11/2023 at 05:37:03 PM) [2023/RJJP/010945] (7 of 22) [CSA-189/2020] prejudice to him; whereas, in the present case, it is the defendant who has come with the plea of prejudice on account of non-framing of the issue.
Referring to the cross examination of Shri Mukut Bihari Sharma (PW1), he submitted that he has stated therein that in absence of registration of the power of attorney, he could not get the sale deed registered on its strength. He, therefore, prayed that the second appeal be dismissed.
Heard. Considered.
The first submission made by learned senior counsel for the defendant is with regard to non-framing of issue pertaining to readiness and willingness of the plaintiff to perform his part of the contract. Section 16(c) of the Specific Relief Act, 1963 (for short-`the Act of 1963') reads as under:
"16. Personal bars to relief-Specific performance of a contract cannot be enforced in favour of a person-
(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 performance of, or readiness and willingness to perform, the contract according to its (Downloaded on 11/11/2023 at 05:37:03 PM) [2023/RJJP/010945] (8 of 22) [CSA-189/2020] true construction."
The Hon'ble Supreme Court has, in the case of U.N. Krishnamurthy (since deceased) through L.Rs. vs. A.M. Krishnamurthy-AIR 2022 SC 3361 underlying the importance of this issue, held as under:
"33. In a suit for Specific Performance of a contract, the Court is required to pose unto itself the following questions, namely:-
(i) Whether there is a valid agreement of sale binding on both the vendor and the vendee and
(ii) Whether the Plaintiff has all along been and still is ready and willing to perform his part of the contract as envisaged under Section 16(c) of the Specific Relief Act, 1963.
46. It is settled law that for relief of specific performance, the Plaintiff has to prove that all along and till the final decision of the suit, he was ready and willing to perform his part of the contract. It is the bounden duty of the Plaintiff to prove his readiness and willingness by adducing evidence. This crucial facet has to be determined by considering all circumstances including availability of funds and mere statement or averment in plaint of readiness and willingness, would not suffice."
From the aforesaid statutory provision and judicial precedent, it is established that in a suit for specific performance, the petitioner has to plead and prove his readiness and willingness to perform his part of the contract.
The question now arises is whether non-framing of this issue is fatal. A three-Judges Bench has held in the case of (Downloaded on 11/11/2023 at 05:37:03 PM) [2023/RJJP/010945] (9 of 22) [CSA-189/2020] Nedunuri Kameswaramma vs. Sampati Subba Rao-AIR 1963 SC 884, as under:
"6. On the first point, we do not see how the suit could be ordered to be dismissed, for, on the facts of the case, a remit was clearly indicated. The appellant had already pleaded that this was jeroyti land, in which a patta in favour of her predecessors existed, and had based the suit on a kadapa, which showed a sub-tenancy. It was the respondent who had pleaded that this was a Dharmila inam and not jeroyti land, and that he was in possession of the kudiwaram rights though his predecessors for over a hundred years, and had become an occupancy tenant. Though the appellant had not mentioned a Karnikam service inam, parties well understood that the two cases opposed to each other were of Dharmila Sarvadumbala inam as against a Karnikam service inam. The evidence which has been led in the case clearly showed that the respondent attempted to prove that this was a Dharmila inam and to refute that this was a Karnikam service inam. No doubt, no issue was framed, and the one, which was framed, could have been more elaborate; but since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mis-trial which vitiates proceedings. We are, therefore, of opinion that the suit could not be dismissed on this narrow ground, and also that there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion. Neither party claimed before us that it had any further evidence to offer. We therefore, proceed to consider the central point in the case, to which we have amply referred already."
In the case of P. Purshottam Reddy and & Anr. (supra), (Downloaded on 11/11/2023 at 05:37:03 PM) [2023/RJJP/010945] (10 of 22) [CSA-189/2020] the Hon'ble Supreme Court, held as under:
"12. Assuming that there was any deficiency in the pleadings and also an omission on the part of the trial court to frame a specific issue, the present one is a case where the applicability of the law laid down by this court in Nagubai Ammal & Ors. vs. B. Shama Rao & Ors.-AIR 1956 SC 593, was squarely attracted. In Nagubai case this court was called upon to examine if the plea of lis pendens was not open to the plaintiff on the ground that it had not been raised in the pleadings. Neither the plaint nor the reply statement of the plaintiff contained any averment that the sale was affected by the rule of lis pendens. There was no specific issue directed to that question. However, evidence was adduced by the plaintiff on the plea of lis pendens and not objected to by the defendants. The question was argued and tested by taking into consideration the evidence that the proceedings were collusive in character with a view to avoid operation of Section 52 of the T.P. Act. This court felt satisfied that the defendants went to trial with full knowledge that the question of lis pendens was in issue, had ample opportunity to adduce then evidence thereon, and fully availed themselves of the opportunity. This court formed the opinion that in the circumstances of the case, absence of a specific pleading on the question was a mere irregularity which resulted in no prejudice to the defendants. After having noticed the rule of pleadings as applicable to civil law that "no amount of evidence can be looked into upon a plea which was never put toward", this court held:
"The true scope of this rule is that evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present in the minds of the parties and on which they had no (Downloaded on 11/11/2023 at 05:37:03 PM) [2023/RJJP/010945] (11 of 22) [CSA-189/2020] opportunity of adducing evidence. But that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon and adduce evidence relating thereto".
A Division Bench of this Court has in Lallu Narayan vs. Ratan Chand Lunia-RLR 1989 (1) 475 while answering the following question no.1 as referred to it, held as under:
(1) Whether the landlord can seek eviction of the tenant on the ground mentioned in Sec.13(1)(f) of the Act in the absence of specific pleading, issue and evidence in that regard and for that purpose the ground set out in Sec.13(1)
(f) of the Act stands on a different footing from the other grounds of eviction contained in Sec.13(1) of the Act?"
37. Answer to Question No.1 has to be found on the basis of case law discussed and considered above. Normally and generally, there should be a clear and specific pleading and there should be issue thereon and the parties should have full opportunity to adduce evidence. The same is true with regard to the grounds mentioned in Sec.13(1) and the ground set out in Sec.13(1)(f) does not stand on a different footing, from the other grounds. However, looking to the nature of the ground, under Section 13(1)(f), if the same is not pleaded and specific issue is not framed, still, if the parties went to trial in the suit and had led evidence and no real prejudice is shown to have been caused, then, the court is competent and is entitled to consider and decide as to whether the ground mentioned in Section 13(1)(f) is proved or not and decree for eviction can be passed, if the same is found in favour of the plaintiff-landlord. If no prejudice is shown to have been caused to the tenant, the merit of the plea based on Sec.13(1)(f) can be examined (Downloaded on 11/11/2023 at 05:37:03 PM) [2023/RJJP/010945] (12 of 22) [CSA-189/2020] by the Court when the parties have gone to trial on that plea. Rule propounded in Nagu Bai Ammal's case (supra) and followed in Bhagwati Prasad's case (supra) is salutary in character and it appears to be based on the principle that the dispute between the parties should see its end by granting or refusing the relief as the case may be, when the parties had already gone to trial on the dispute. It would be unjust to drive the parties, in further litigation, when the parties in fact, have joined the issue at the trial. It appears that the earlier unreported decisions of this Court and the law propounded by their Lordships of the Supreme Court as considered above were not brought to the notice of the learned Judge, in Bhinwaram's case (supra). We do not agree with the view taken by the learned Judge that if the landlord on account of denial of title in the written statement by the tenant, wants to take advantage of this additional ground, he can do so only if he can plead it by way of amendment and not by merely relying on the so called denial of his title in the written statement. It may be stated that a decree for eviction can be founded on the basis of admission unless the admission is explained. If the tenant has renounced his character as such or has denied the title of landlord and he does not explain as to why he denies the title of the landlord and unless any prejudice is shown to have been caused to the tenant, a decree for eviction can be founded on the basis of such admission of the ground mentioned in Sec.13(1)(f). As already stated in Bhinwaram's case (supra), an application for amendment of the plaint was made and the learned Judge thought it proper to allow the amendment. Thus it would depend on the facts and circumstances of each case as to whether any real prejudice is caused to the tenant in the absence of the pleading and issue and equally it would all depend on the facts and circumstances of each case as to whether the ground mentioned in Sec.13(1)(f) is made out or not. It (Downloaded on 11/11/2023 at 05:37:03 PM) [2023/RJJP/010945] (13 of 22) [CSA-189/2020] would be for the Court to decide as to whether there has been renunciation by the tenant of his character as such or there has been denial of the title of the plaintiff landlord or whether there has been any waiver or condonation of conduct of the tenant on the part of the landlord.
38. In view of the foregoing discussion, our answer to Question No.1, therefore, is as under:-
39. The landlord can seek eviction of the tenant on the ground mentioned in Sec.13(1)(f) of the Act, in the absence of specific pleading and issue, if the parties went to trial on that ground when no real prejudice is shown to have been caused to the tenant. Although, the ground set out in Sec.13(1)(f) does not stand on a different footing from the other grounds, still, the ground mentioned in Sec.13(1)(f) of the Act can be examined on merits in the aforesaid situation."
A coordinate bench of this Court has, in the case of Gulam Mohammed vs. Mariyam-MANU/RH/0371/1983, held as under:
"Therefore, it appears that although there was no specific denial of the plaintiffs averment about his readiness and willingness to perform his part of the contract and there was no issue, the court went further to look into the evidence because evidence had already been led by the plaintiff in this respect. Had the plaintiffs not led any evidence and the court would have found that even in the absence of specific denial and the absence of the issue, the plaintiff's suit must fail because he has not proved his readiness and willingness to perform his part of the contract, the matter would have been different and, therefore, in the circumstances of that particular case, this authority cannot be deemed to have laid down that after (Downloaded on 11/11/2023 at 05:37:03 PM) [2023/RJJP/010945] (14 of 22) [CSA-189/2020] the introduction of clause (c) in s. 16, the plaintiff is bound to prove his allegations about his readiness and willingness to perform his part of the contract even though the defendant has not specifically denied it nor any issue has been framed in this respect. The learned counsel for the respondents has also referred to a number of authorities to press his contention that it is the duty of the plaintiff to prove his readiness and willingness to perform his part of the contract. But I need not refer to them in detail because all those authorities are those in which either there was no averment regarding the plaintiff's readiness and willingness to perform his part of the contract or the averment had been traversed by the defendants. I would, therefore, only refer to them in brief. Those authorities are H.G. Krishna Reddy & Co. v. H.M. Thimmiah (MANU/TN/0361/1983 : AIR 1983 Mad. 169), Rahat Jan v. Hafiz Mohammed Usman, (MANU/UP/0240/1983: AIR 1983 Allah. 343) Narendra Bahadur Singh v. Baijnath Singh (MANU/UP/0226/1981 :
AIR 1981 Allah. 410) Sankatha Prasad v. Abdul Aziz Khan (MANU/UP/0024/1976: AIR 1976 Allah. 96), Smt. Dhanbai vs. Pherozshah (1970 RLW 594), and Gomathinayagam Pillai vs. Palni Swami Madar (MANU/SC/0067/1966:AIR 1967 SC 868). It may be noted that in Narendra Singh's case (supra), the plaintiff had not pleaded his readiness and willingness to perform his part of the contract in the original plaint and it was after the expiry of the period of limitation for filing the suit for specific performance that the plaintiff applied for amendment of the plaint and in these circumstances, the amendment was refused. Now in these circumstances, I am clearly of the view that in the absence of the defendants traversing the plaintiffs' specific plea of their being ready and willing to perform their part of the contract, the plaintiffs were not required to lead specific evidence to prove the same.(Downloaded on 11/11/2023 at 05:37:03 PM)
[2023/RJJP/010945] (15 of 22) [CSA-189/2020] Another coordinate bench of this Court in In Kirpal Singh vs. Mst. Kartaro & Ors.-AIR 1980 Rajasthan 212, held as under:
"11. It may be noticed that the defendant has not specifically denied the various allegations made by the plaintiff in para No. 3 of the plaint. On the other hand a general denial has been made. Order 8, Rule 3, Code of Civil Procedure lays down that it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff but the defendant must deal specifically with each allegation of fact of which he does not admit the truth except damages. Rule 5 further provides that every allegation of fact in the plaint if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant shall be taken to be admitted except as against a person under disability.
Now, in the present case, no doubt, there is a general denial of the allegations contained in para 3 of the plaint. But there is a specific denial only with respect to receiving Rs. 2000/- at the time of execution of the document. A number of other material allegations contained in that para have not been specifically denied. It is also significant that no issue has been struck on the question whether the plaintiff was ready and willing to perform his part of the contract. However, since in the eye of law the plaintiff is bound to aver and prove the same we must look into the evidence to find out whether the allegation made by the plaintiff as to his readiness and willingness to perform his part of the contract has been proved. But while doing so. we cannot lose sight of the fact that the defendant's denial in this respect is evasive. P.W. 2 plaintiff Kirpal Singh has stated that he was ready and willing to get the sale deed registered in accordance with the terms of the agreement (Downloaded on 11/11/2023 at 05:37:03 PM) [2023/RJJP/010945] (16 of 22) [CSA-189/2020] but the defendant did not comply. He further states that he went to the Registrar's office on the appointed date for getting the sale deed registered, but the defendant did not turn up. He also states that he took the money with him, but the defendant was trying to back out of the agreement as the prices of the land had gone up. However, he wants the land. In the course of cross-examination he has stated that he had not given any written notice to the defendant for getting the sale deed registered but he did go to the defendant's house many a times. On the other hand, D.W. 1 Gujar Singh defendant has not said a word in this respect."
A coordinate bench of this Court in Ramratan vs. Bulkidas through His L.Rs.-(2001) 1 RLW 194, also held as under:
"23. On the other hand, the learned counsel for the deceased plaintiff respondent has relied on a decision of the Hon'ble Supreme Court in Bhagwati Prasad vs. Chandramaul-AIR 1953 SC 235. In that case, the Hon'ble Supreme Court, after analysing the law laid down in the case of Trojan & Co. Ltd. vs. Nagappa Chettiar-AIR 1953 SC 235, has further stated that if a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not disentitle a party from relying upon it if it is satisfactorily proved by evidence. What the Court has to consider in dealing with such an objection is did the parties know that the matter in question was involved in the trial and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a (Downloaded on 11/11/2023 at 05:37:03 PM) [2023/RJJP/010945] (17 of 22) [CSA-189/2020] different matter. But, if the parties led evidence knowing what they are going to allege and prove, then in such case general rule would not be applicable and the case would be covered by an issue by implication that though the matter has not been specifically pleaded, yet it is implied in the pleadings of the parties. In Ram Sarup Gupta (dead) by L.Rs. vs. Bishun Narain Inter College & Ors.-AIR 1987 SC 1242, the Hon'ble Supreme Court has held that it is not desirable to place undue emphasis on form, instead, substance of pleadings should be considered."
From the conspectus of the aforesaid judgements of the Hon'ble Supreme Court of India, a Division Bench & co-ordinate Benches of this Court, it is borne out that if there are pleadings with regard to any specific aspect, the evidence was adduced by the parties qua that and it was argued and examined by the Court taking into consideration the material on record, non- framing of specific issue on that aspect cannot be held to be fatal to the proceeding as no prejudice is caused to a party to the litigation.
In the present case, it is specifically stated in the plaint that the plaintiff was always ready and willing to perform his part of the contract i.e. to make payment of the balance sale consideration and has served several notices upon the defendant requiring him to execute the sale deed receiving the balance sale consideration. There is no denial by the defendant to these averments in his written statement. Shri Mukut Bihari Sharma (PW1) has categorically stated in his examination in chief that he was always ready and willing to perform his part of the contract (Downloaded on 11/11/2023 at 05:37:03 PM) [2023/RJJP/010945] (18 of 22) [CSA-189/2020] and has kept the balance sale consideration in the shape of fixed deposit in the bank for payment to the defendant. He was subjected to elaborate cross examination by the defendant on the aspect of his readiness and willingness to perform his part of the contract. The defendant has also been subjected to cross examination on this aspect by the plaintiff when he appeared in the witness box as DW1. Most importantly, the defendant had moved an application dated 17.11.2003 before the learned trial court under Order 14 Rule 5 CPC when the case was fixed for final arguments requesting therein for framing of an additional issue with regard to readiness and willingness of the plaintiff to perform his part of the contract without a whisper of averment therein that absence of such issue has caused prejudice to his defence or that after framing of such issue, the case be re-tried; rather, with averment that it would facilitate disposal of the litigation. The application was dismissed by the learned trial court vide its order dated 3.12.2003 observing that this issue was implicit in the issue no.1. The order dated 3.12.2003 attained finality inasmuch as it was not assailed further. Moreover, neither the memo of civil first appeal preferred against the judgement and decree dated 1.9.2005 nor, the earlier judgement dated 19.8.2006 whereby, the civil first appeal no.21/2005 was dismissed, reflects that any such objection was taken by the defendant therein. Even the judgement dated 18.7.2017 passed by this Court allowing the civil second appeal no.430/2006 and remanding the matter back to the learned first appellate court for decision afresh, does not reveal that any such (Downloaded on 11/11/2023 at 05:37:03 PM) [2023/RJJP/010945] (19 of 22) [CSA-189/2020] objection was taken by the defendant; rather, it reflects that it was admitted on substantial questions of law inter alia that the plaintiff could not establish his readiness and willingness to perform his part of the contract. As a matter of fact, for the first time, the objection as to validity of the decree passed in favour of the planitiff for specific performance on account of non- framing of the issue with regard to readiness and willingness of the plaintiff has been raised in the instant civil second appeal. Although this Court is conscious that it being a question of law can be raised at this stage; but, in the facts and circumstances of the case, it is apparent that it is an unsuccessful attempt on the part of the defendant to attack the judgement and decree against him well aware of the fact that he has entered into trial and has contested the case throughout well aware of the involvement of this issue in it and also that absence of such specific issue did not cause any prejudice to his defence.
Although, in the case of V.S. Ramakrishnan (supra), their Lordships have held that dismissal of a suit filed for specific performance on account of absence of any specific issue with regard to readiness and willingness of the purchaser to perform his part of the contract, was bad in law; but, it was rendered in the circumstances wherein the plaintiff has claimed prejudice caused to him on account of such non-framing of the issue inasmuch as the burden of proof of this issue is only upon him. Therefore, this Court is not persuaded to hold it as a rule of thumb that non-framing of specific issue as to readiness and willingness of the plaintiff to perform his part of contract is (Downloaded on 11/11/2023 at 05:37:03 PM) [2023/RJJP/010945] (20 of 22) [CSA-189/2020] always fatal to the proceedings; rather, it would depend upon facts and circumstances of a given case. As already observed, in the present case, the defendant has raised no such objection at any stage of proceedings except in the instant civil second appeal, i.e., the second round of litigation before this Court and has entered into trial, has contested it throughout well conscious of involvement of this issue in it which caused no prejudice to his defence.
In view thereof, contention of learned senior counsel for the defendant in this regard does not merit acceptance.
Another limb of submission of the learned senior counsel for the defendant that the plaintiff could not establish his readiness and willingness to perform his part of the contract cannot be countenanced in the facts and circumstances of the case. Though, there may be some substance in the contention of learned senior counsel that UPC receipts could not have been relied upon by the learned courts in absence of production of copy of letters/notices allegedly sent through these and in view of judgement of Hon'ble Supreme Court of India in the case of Shiv Kumar (supra); but, in the present case in addition to averment that letters/notices were sent through UPC, the plaintiff has also averred and established that he sent a letter through registered post (Ex.13) with its receipt (Ex.14) and served a legal notice through his counsel (Ex.15) upon the defendant requiring him to execute the sale deed with postal receipts (Ex.16 & 17) and the acknowledgment of its receipt (Downloaded on 11/11/2023 at 05:37:03 PM) [2023/RJJP/010945] (21 of 22) [CSA-189/2020] (Ex.18). The plaintiff has also established that he kept the balance sale consideration to be paid to the defendant in the shape of fixed deposit in his bank account and it was deposited in the Court vide receipt (Ex.19) during the course of trial. Therefore, in the considered view of this Court, the learned courts did not err in deciding the issue of readiness and willingness of the plaintiff to perform his part of the contract in his favour.
Submission of learned senior counsel for the defendant that without redeeming the subject property which was mortgaged with the bank, the decree of specific performance could not have been passed, does not merit acceptance. There is neither any such legal necessity nor, the sale agreement dated 26.2.1989 warranted fulfillment of any such condition by the plaintiff before execution of the registered sale deed by the defendant.
Contention of the learned senior counsel for the defendant that readiness and willingness of the plaintiff is not established on account that despite having execution of power of attorney in his favour by the defendant, he did not get the sale deed executed in his favour, does not merit acceptance in view of cross examination of Shri Mukut Sharma (PW1) wherein, he has stated that he could not get the sale deed registered in his favour on the strength of the power of attorney as it was unregistered. The defendant could not establish that the sale deed could have been registered in favour of the plaintiff on the strength of the unregistered power of attorney. (Downloaded on 11/11/2023 at 05:37:03 PM)
[2023/RJJP/010945] (22 of 22) [CSA-189/2020] There are concurrent findings of facts with regard to readiness and willingness of the plaintiff to perform his part of the contract under the subject sale agreement which have not been shown to be suffering from any illegality, infirmity or perversity by the appellant.
Resultantly, this civil second appeal is dismissed being devoid of any substantial question of law with cost throughout.
(MAHENDAR KUMAR GOYAL),J.
RAVI SHARMA / (Downloaded on 11/11/2023 at 05:37:03 PM) Powered by TCPDF (www.tcpdf.org)