Himachal Pradesh High Court
Shri Krishan Swarup Bhatnagar vs Shri Chander Mohan Rewal And Anr. on 18 August, 1999
Equivalent citations: AIR2000HP53
Author: Surinder Sarup
Bench: Surinder Sarup
JUDGMENT Kamlesh Sharma, J.
1. Appellant is the defendant, whereas, respondent No. 1 is the plaintiff and respondent No. 2 is defendant No. 2 and they will be referred to as such in this judgment. This appeal at the instance of the defendant is against the decree and judgment dated 23-3-1998 passed by District Judge, Shimla whereby the suit of the plaintiff was decreed for specific performance of the contract dated 25-8-1993 against the defendant, who is directed to execute the sale deed in respect of the suit property in favour of the plaintiff on his paying a sum of Rs. 3,70,000/- on account of balance sale consideration. The suit property is a house and adjoining vacant land bearing Khasra numbers 131, 132 and 133 situate in Estate Andheri, Summer Hill, Shimla. Initially the suit was instituted in the High Court but later on it was transferred to the Court of District Judge when the pecuniary limit of the said Court was increased from Rs. 2 lacs to Rs. 5 lacs.
2. The facts in brief, as pleaded in the plaint, are that the defendant who is owner of the suit property, had got published and circulated hand bills through property dealer defendant No. 2 offering sale of the suit property for Rs. 3,50,000/-, in response to which the plaintiff contacted defendant No. 2 and after inspecting the suit property, entered into sale agreement for consideration of Rs. 4 lacs on 25-8-1993 and paid a sum of Rs. 30,000/- as advance money besides Rs. 2.,000/- as commission/service charges of defendant No. 2. The balance amount of Rs. 3,70,000/- was agreed to be paid at the time of execution of the sale deed, which was to be executed on 26-10-1993 as per the terms of the agreement. Thereafter, after obtaining permission from the Government on 14-10-1993 to purchase the suit property as required under Section 118 of the H.P. Tenancy and Land Reforms Act (hereinafter called 'the Act'). The plaintiff sent a registered letter to the defendant requiring him to obtain necessary certificate under the Income-tax Act but he refused to accept the said registered letter and informed defendant No. 2 that he was not interested in selling the suit property, who in turn further informed the plaintiff the intention of the defendant.
3. In these circumstances, the plaintiff gave legal notice by registered post to defendant No. 1 on 22-10-1993, which was also refused as per endorsement of the Postal Authorities, and attended the Office of the Registrar, Shimla to make himself available to the defendant for the execution and registration of the sale deed but the defendant did not turn up. Thereafter, the present suit was filed by the plaintiff for specific performance of the agreement dated 25-8-1993 requiring the defendant to execute the sale deed in respect of the suit property in favour of the plaintiff and in the alternative for damages. In para 8 of the plaint it is specifically averred that the plaintiff has always been willing and is still willing to perform his part of the contract to pay the balance amount of sale consideration i.e. Rupees 3,70,000/- to the defendant, but it seems that the defendant is not interested in performing his part of the contract as he has refused to abide by the terms of the agreement dated 25-8-1993.
4. The defendants filed separate written statements. Defendant No. 2 in his written statement admitted the claim of the plaintiff. It is specifically stated in para 4 of his written statement that, 'The defendant No. 1 has mischievously tried to utilise the so-called agreement dated 27th August, 1993 for wriggling out from the agreement dated 25th August. 1993." It is also stated in para 6 that, "defendant No. 1 had orally expressed his inability to perform his part of the contract."
5. On the other hand, the defendant in his written statement has contested the claim of the plaintiff by asserting that he had offered the suit property for sale in two parts for total consideration of Rs. 7 lacs through defendant No. 2. According to him he had never agreed to sell the suit property for consideration of Rs. 4 lacs and he had never received Rs. 30,000/- as advance money as per the terms and conditions in agreement dated 25-8-1993. As per his further stand in his written statement, on his pointing out these facts to the plaintiff, the latter had explained that being Government servant he could not pay on record a price beyond his known resources of income, therefore, only Rs. 4 lacs instead of Rs. 7 lacs were being incorporated in the agreement, which would also save the stamp duty and that rest of the amount would be paid in cash and the amount of Rs. 30,000/- would be paid at the time of finalisation of the agreement. The defendant further pleaded that he did not agree to the suggestions made by the plain-tiff and asked him to draw a fresh agreement, which he brought on 27-8-1993 on non-judicial paper of Rs. 3/- in which again the sale consideration was mentioned as Rs. 4 lacs, which was corrected to Rs. 7 lacs as his conscience did not permit the evasion of stamp duly and registration fee. Further the stand of the defendant is that agreement dated 25-8-1993 was not a concluded and binding contract and it stood superseded and cancelled by the agreement dated 27-8-1993, the original whereof was retained by the plaintiff and phoio copy thereof was delivered to him.
6. The plaintiff filed replication to the written statement of the defendant reiterating that the whole of the suit property was agreed to be sold for Rs. 4 lacs and not in two parts for Rs. 7 lacs, as stated by the defendant. It is also stated that in fact the defendant wanted that only a sum of Rs. 2 lacs be mentioned, as sale consideration and remaining 2 lacs be paid to him under the table but he did not agree to the proposal as he had to withdraw the money from the General Provident Fund Account. The plaintiff has further explained that the agreement dated 25-8-1993 was duly signal by him mid his Personal Assistant Shri Ranjit Singh and it was sent to the defendant, who made a number of cuttings, additions and alternations in the same, for which reason it was agreed to draw fresh/fair deed of agreement to avoid any dispute in future. But the defendant did not change the amount of sale consideration which was mentioned as Rs. 4 lacs and also did not score out the clause that he had received an amount of Rs. 30,000/- as an advance and the remaining amount of Rs. 3,70, 000/- would be paid at the time of execution of the sale deed. As per the further case of the plaintiff the fair draft with the contents of corrected agreement dated .25-8-1993 was prepared and signed by him and his witness Ranjit Singh and thereafter sent to defendant through defendant No. 2 for execution but he did not return the same on the plea that it was lost and also that there was no need for executing a fresh agreement when agreement dated 25-8-1993 duly executed by both the parties and attested by the witness was in existence. The plaintiff has denied that he had visited the house of the defendant on 27-8-1993 with a fair draft and that the draft was executed by both the parties in the presence of witnesses and the original was retained by him and its photo copy was handed over to the defendant. According to him, the fair draft of agreement dated 27-8-1993 remained with the defendant in which he appeared to have made unauthorised additions, alterations and cuttings, which were never agreed to. It is also pointed out that the disputed additions, alterations and cuttings made by defendant No. 1 as shown in the photo copy are not initialled by the plaintiff which shows that the defendant has interpolated the fair draft of the agreement and retained the same with him and falsely represented to the plaintiff that it got lost.
7. Before framing the issues the statements of the parties were recorded under Order 10, Rule 1, C.P.C. The plaintiff stuck to his case as set out in the plaint. It is reiterated that one agreement dated 25-8-1993 was entered into between the parties. But since this agreement contained many cuttings and alterations which were made in the handwriting of the defendant and initialled by the plaintiff, it was agreed to get it retyped and re-executed by the parties in order to substitute the original. The plaintiff has further stated that he got agreement retyped through his Personal Assistant on the typing machine of his office and handed it over to defendant No. 2 after putting his signatures and that of his Personal Assistant in good faith, the carbon copy of which was placed by him on record. It is further explained that the said agreement did not contain any alterations, cuttings except the alteration of the date from 25th to 27th (the figure 5 has been substituted by alteration of figure 7).
8. Similarly, in his statement recorded under Order 10, Rule 1, C.P.C. the defendant has stated that he had not given any written instructions to defendant No. 2 for the sale of the suit property but it was got inspected by him and defendant No. 2. The defendant has further stated that the plaintiff had agreed to pay an amount of Rs. 7, lacs though agreement for sale consideration of Rs. 4 lacs was executed on the pretext that Rs. 3 lacs would be given in cash to him. This talk had taken place in his house on 27-8-1993, in the absence of defendant No. 2 but in the presence of three other persons who were his witnesses. However, earlier agreement to sell dated 25-8-1993 had already been executed between the parties and the alterations in the said agreement are in his handwriting. The defendant has further stated that except the portions in paras 1 to 7 encircled in red pencil, all other alterations made in original agreement have been initialled by the plaintiff. The second agreement dated 27-8-1993 was given to him by the plaintiff by keeping the original thereof with himself. According to the defendant, the agreement dated 27-8-1993 similarly contained three cuttings having been initialled by the plaintiff and the remaining alterations and cuttings are in his hand and initialled by him in defendant has explained that because the original agreement dated 27-8-1993 was taken for photostat purpose, as such, he could not get every cutting initialled on the same. He has also denied having received any advance amount.
9. Defendant No. 2 has also given statement under Order 10. Rule 1. C.P.C. stating that he got sold the suit property to the plaintiff in lieu of Rs. 4, lacs settled between him and the defendant and that he got only one agreement dated 25-8-1993 entered into between the parties and the second agreement which he had received from the plaintiff was handed over to the son of the defendant, namely, Ashwani Kumar for getting the signatures of the defendant thereon, was never returned to him on the pretext that it had been lost by the defendant. Defendant No. 2 has explained that the said agreement did contain some cuttings by the plaintiff but nothing had been written in that agreement with hand. He has further stated that he had passed on an amount of Rupees 30,000/- as advance to the defendant and thereafter he had signed the original agreement dated 25-8-1993.
10. Thereafter, on the pleadings of the parties the following issues were framed :--
1. Whether the property in dispute was agreed to be sold for an amount of Rs. 4 lacs pursuant to document in writing dated 25th of August, 1993 as alleged? OPP
2. Whether earlier agreement dated 25th of August, 1993 was superseded by the subsequent agreement dated August, 27, 1993 and the property in question was agreed to be sold for an amount of Rs. 7 lacs as contended in the written statement of defendant No. 1 ? OPD-1
3. Whether an amount of Rs. 30,000/-was paid to defendant No. 1 as advance towards the price settled by the plaintiff on 25th of August, 1993 as alleged, through defendant No. 2 ? OPP
4. Whether the plaintiff is entitled to the specific performance of the contract in question ? If so, to what extent and on what terms OPP
5. Whether alterations in the subsequent agreement dated 27-8-1993, were allegedly incorporated by mutual consent of the parties with respect to the sale of the property in dispute. If so, its effect? OPD-1. 6. Relief.
11. To prove his rase the plaintiff has appeared as Pw-1 and produced his Personal Assistant Ranjit Singh PW-2. Milap Chand. Sr. Assistant Revenue-B, H.P. Secretariat. Shimla PW-3, Bhupinder Singh PW-4 and Bharat Singh. Patwari, Patwar Circle Boileauganj PW-5. He has also placed on record the hand bill Ex. P1, Receipt for Rs. 30,000/ Ex. P2, agreement dated 25-8-1993 Ex. P3, registered letter dated 16-10-1993 Ex. P4, legal notice Ex. P8, copy of the agreement dated 27-8-1993 Ex. P9 and the correspondence between him and the Government granting him permission to purchase the suit property Exhibits P10 to P12 and the notification sanctioning non-refundable withdrawal of provident fund of Rs. 3 lacs Ex. PX besides other documents. On the other hand. Ajay Goel on behalf of defendant No. 2 has appeared as DW-1 and the defendant as DW-2 and produced Gajlnder Gupta Stamp Vendor as DW-3, Pradeep Kumar. Assistant in the H.P. University as DW-4. The defendant has also produced photo ropy of the agreement dated 27-8-1993 Ex. D-1, unsigned receipt dated 25-8-1993 Ex. D-2, Form of Defendant No. 2 Ex. DX, hand bill Ex. DY and complaint Ex. DZ.
12. In his deposition in the Court the plaintiff has reiterated his case as stated in the plaint that as per the agreement between the parties he paid an amount of Rupees 32,000/- to defendant No. 2 against receipt Ex.P2 for passing on an amount of Rs. 30,000/- to the defendant and retaining Rs. 2,000/- as his commission. He has further stated that the agreement Ex. P-3 bears his signatures and that of the defendant and also that of defendant No. 2 and Ranjit Singh as witnesses. The plaintiff has further stated that as per the terms and conditions of agreement Ex. P3 an amount of Rupees 3,70,000/- was to be paid to the defendant on or before 26-10-1993 and the defendant was to execute the sale deed of the suit property in his favour on or before 26-10-1993 and on the failure of either party to comply with the terms and conditions of the agreement, the plaintiff was to forfeit the advance of Rs. 30,000/- and the defendant the suit property. He has specifically stated that he had been ready and willing to perform his part of the eon tract, and had been in possession of sale consideration during the month of Oct. 1993 and Thereafter as well as he had withdrawn the said amount from his General Provident Fund Account and ob-tained the sanction of the Government to purchase the suit property and the intimation of his willingness to perform his part of the contract as well as acquisition of funds was given to the defendant by registered notice Ex. P4 which was sent by registered A.D. cover Ex. P7, which was received back with the endorsement that 'refused by the addressee'. Another notice dated 22-10-1993 Ex. P8 calling upon the defendant to present all the revenue documents pertaining to the suit property and execute the sale deed on 26-10-1993 as per the agreement, failing which suit for specific performance of the contract would be filed, was also sent to the defendant. According to the plaintiff thereafter he visited the office of Sub-Registrar (Urban), Shimla on 26-10-1993 but the defendant did not come. He has also stated that since there were cuttings in Ex. PW-3, he got a new agreement prepared and sent the same to defendant through defendant No. 2 after putting his signatures but later on he was told that the said original agreement was lost by the defendant. The plaintiff has placed on record the carbon copy Ex. P 9 of the said agreement sent to the defendant for signatures. He has also placed on record the documents Exts. P10, P11 and P12 the correspondence between him and the Government in respect of granting him permission to purchase the suit property.
13. In his cross-examination the plaintiff has admitted that typed portion encircled with red ink in Ex. P3 is duly attested by him but denied that he had carried out all the cuttings in Ex. P3 and stated that these were made by the defendant. He has also denied that he had entered into any new agreement with the defendant and stated voluntarily that amendment suggested by the defendant had been incorporated in the aforesaid draft Ex. P9, for which the stamp papers were brought either on 27-8-1993 or 26-8-1993. He has admitted his signatures on the reverse side of both the papers of photo copy of t he agreement Ex. D-1 and also his initials on one correction where the date 25th August was substituted by 27th August and another mistake whereby the spelling mistake of seller was corrected but has denied that all other cuttings were made in his presence. He has also denied that the receipt Ex. D2 was prepared for the signatures of the defendant and also that he had arranged funds to the extent of Rs. 7, lacs. In respect of lus statement Ex.D-3 recorded under Order 10. Rule 1. C.P.C. he has clarified that whatsoever was asked by the Hon'ble High Court, was replied by him. He has specifically denied that he is withholding the original of document Ex. D-1, on which he had obtained the signatures of the defendant. He has admitted that he had not purchased the stamp papers when he had gone to the Sub-Registrar as the defendant did not turn up though he knew that stemp papes of larger denomination could be purchased before 12.00 noon. He has also specifically denied that Ex. D-1 is the photostat copy of the new agreement entered between the parties and that the agreement was for Rs. 7 lacs but in order to save the stamp duty only Rs. 4 lacs were mentioned in the agreement.
14. Ranjit Singh PW-2, the Personal Assistant of the plaintiff has stated that he had typed the agreement Ex. P3 and signed it as attesting witness. According to him one fair copy of the agreement had also been typed by him on a letter which was also singed by him as a witness and by the plaintiff as party and carbon copy thereof is Ex. P-9. He has further stated that an amount of Rs. 32,000/- was paid to defendant No. 2 at the time of preparation of agreement Ex. P-3, which he acknowledged by receipt Ex. P-2. In his cross-examination this witness has admitted that typed material of Ex. P-9 and Ex.D-1 appears to be the same but denied that original copy of Ex. D-l had cuttings and overwriting as are found in Ex. D-l when he had signed the same. He has denied that receipt Ex. D-2 was prepared by him.
15. Milap Chand PW-3, Senior Assistant, Revenue-B, H. P. Secretariat. Shimla has brought on record documents Ex. P-11 and Ex. P-12 duly signed by the competent authority. He has stated that the plaintiff had applied for permission to acquire immovable property on 27-8-1993. Another witnesses Bhupinder Singh PW-4 has stated that he had accompanied the plaintiff to the suit property in respect of which there was a dispute of passage and on hid inquiry he found that the dispute could be settled. As per this witness he had gone to the defendant to hand him over the letter dated 16-10-1993 Ex. P-4 pertaining to income tax clearance but he refused to receive the same. In his cross-examination he showed his inability to give his date of visit to the suit properly. Bharat Singh, Patwari, Patwar Circle Boileauganj, Shimla PW-5 has placed on record the statement of average price based on the sale transactions between 1992 and 1997 as Ex. PW 5/A
16. Ajay Goel DW-1 appearing on behalf of defendant No. 2 has reiterated his stand in the written statement as well as in his statement recorded under Order 10, Rule 1, C.P.C. He has denied that he got some forms for the sale of the suit property filled in from the defendant but has admitted that Ex. DX pertains to him which docs not relate to the suit property. He has further admitted that hand bill Ex. D-Y was issued by him but denied that by way of this hand bill the suit property was advertised for sale for Rs. 7 lacs and explained that the property mentioned at Serial No. 28 in Ex. D-Y belongs to one Thapper. who is a Chemist at Boileauganj. He has further denied that defendant had offered to sell the suit property which consisted of two roomed house and land measuring 254 sq. mts. for Rs. 7 lacs. In his cross-examination on behalf of the plaintiff he has stated that Ex. D-X was got printed by him sometimes in the year 1995. He has admitted the payment of Rs. 32,000/- which included his commission of Rs. 2,000/- against receipt Ex. P-2. He has further admitted that agreement Ex. P-3 was handed over to him duly signed by the plaintiff and his witness Ranjit Singh, which he had got signed from the defendant who had carried out changes and alterations in his hand. He has also agreed that since some cuttings had been made by the defendant in the agreement Ex. P-3 the plaintiff had got new agreement prepared incorporating the said changes and handed over the same to him for obtaining the signatures of the defendant, who did not return the same. This witness has further admitted that hand bill Ex.P-1 was duly issued by him, and Ex. P-9 is the carbon copy of the agreement which had been got typed incorporating the charges done by the defendant. According to him, the suit property is not fit for sale in parts as there is two roomed house in the centre of the land in dispute and there is passage from Summer Hill to this land, which further goes down, as well as one septic tank on one corner of the land.
17. Defendant No. 2 in his deposition has also reiterated his defence as set out in the written statement that on 25-8-1993 he had agreed to sell the suit property in favour of the plaintiff for a sum of Rs. 7 lacs, though the registration of the sale deed was to be done for Rs. 4 lacs and the remaining amount of Rs. 3 lacs was to be paid in cash. Accord -ing to him on 27-8-1993 the plaintiff had brought agreement duly typed and asked him to sign in which he carried out alterations indicating the sale consideration of Rs. 7 lacs as he could not account for the cash payment of Rs. 3 lacs, in the presence of the plaintiff. He has further stated that he contacted defendant No. 2 for negotiating the sale of the suit property for Rs. 7 lacs and had filled in the form similar to Ex. DX. As per this witness the original of Ex. D-1 had been given by him to the plaintiff and photo copy thereof Ex. D-1 was written by him. He has explained that though receipt Ex. D-2 was given to him by the plaintiff on 25-8-1993 but he had not signed it as he had not received the amount mentioned therein. He has admitted that he had made complaint Ex. DZ against the plaintiff. He has admitted that the suit property consists of 75 sq. mts. built-up area and 188 sq. mts. vacant land, which cannot be sold separately from the built-up area.
18. In his cross-examination on behalf of the plaintiff this witness has denied that hand bill Ex. P-1 issued by defendant No. 2 pertains to the suit property. He has admitted his signatures on agreement Ex. P-3 dated 25-8-1993 and cutting in black ink on page 1 in Para 2 in his hand, which was scored out by him. He has also admitted that in Para 3 of Ex. P-3 he had noted down with his own hand the words figures Rupees 3,70,000/- (Rupees three lacs seventy thousand) as it was settled and agreed between the parties that Rs. 30,000/- were to be paid as earnest money and Rs. 3 lacs were to be paid in cash but denied that he had agreed to sell the property in suit for Rs. 4 lacs and received Rs. 30,000/- as advance money. He has voluntarily stated that he had signed Ex. P-3 at his residence when the plaintiff had brought the same to him. He has categorically admitted that the suit house and the suit land can be sold by one transaction as it constitutes only one plot. He has categorically denied that the original of Ex. P-9 had been withheld by him but he has admitted portion A to A of his complaint Ex. DZ stating that defendant No. 2 in his advertisement only mentioned house for sale for Rs. 31/2 lacs. He has denied having received the legal notice Ex. P-8 but admitted his address as correct on registered envelop Ex. P-7. He has admitted that he had not initiated any action for obtaining certificate of clearance of income-tax. In his cross-examination on behalf of defendant No. 2 he has stated that portion A to A of his statement Ex. P-14 recorded under Order 10. Rule 1. C.P.C. is correct wherein he has stated that he had not given any written instruction to defendant No. 2 for the sale of the disputed property. He had also not issued any notice to defendant No. 2 informing him about the illegality, if any, in the agreement of sale.
19. Gajinder Gupta DW-3 is the witness to state that he had sold one stamp paper in the sum of Rs. 3/- to the plaintiff, photocopy whereof is Ex. D-1. Pardeep Kumar DW-4 has stated that on 27-8-1993 an agreement between the plaintiff and the defendant had taken place regarding the sale of a house for Rs. 7 lacs out of which Rs. 4 lacs were to be recorded as sale consideration in the agreement and rest of the amount of Rs. 3 lacs was to be paid off the record as proposed by the plaintiff, to which the defendant did not agree and the amount of Rs. 4 lacs mentioned in the agreement was corrected to Rs. 7 lacs by cutting and overwriting and thereafter the agreement was executed by the defendant followed by the plaintiff and the witnesses, namely, Rajesh, Ranjit and this witness. In his cross-examination this witness has admitted that he used to live in the neighbourhood of the defendant at the time of the execution of the agreement. He has expressed his ignorance in respect of the earlier agreement dated 25-8-1993. According to him all the cuttings in Ex. D-1 were made in his presence and the cuttings and overwritings and changes in the document Ex. D-l have been made by the defendant himself. He showed his ignorance that the fair draft of the agreement had been delivered to the defendant through defendant No. 2 on 27-8-1993 and it had no cuttings, overwritings, interpolations etc. which had been made by the defendant after the execution of the agreement. He has also stated that the plaintiff and the defendant had gone to the University after the execution of the agreement Ex. D-1 with a view to get the same attested from some Officer of their acquaintance but he had not accompanied them.
20. On the analysis of the oral and documentary evidence on record the District Judge has decided Issues Nos. 1, 2 and 5 in favour of the plaintiff and against the defendant. It is held that the suit property was agreed to be sold by the defendant to the plaintiff for Rs. 4 lacs vide agreement dated 25-8-1993, fair draft of which was prepared on 27-8-1993 simply for the reason that there were several cuttings, additions, alterations and overwritings in the agreement dated 25-8-1993 and the intention of the parties was not to change the quantum of sale consideration and other material recitals of the agreement dated 25-8-1993 and also that the additions, alterations, cuttings and overwritings appearing in the copy of agreement dated 27-8-1993 Ex. D-l had been carried out by the defendant unilater-ally without the consent of the plaintiff.
21. Issue No. 3 is also deluded in favour of the plaintiff and against the defendant holding that the plaintiff had paid Rupees 30,000/- as advance money to the defendant through defendant No. 2. In answer to Issue No. 4 it is held that the omission in the statement of the plaintiff that he was still ready and willing to perform his part of the contract is not very material in view of the specific pleadings in Para 8 of the plaint in this regard and also that the defendant by his acts and conduct had repudiated the contract and the plaintiff has been held entitled to the decree of specific performance of the agreement dated 25-8-1993. These findings have been challenged in the present regular first appeal.
22. This Court has heard learned counsel for the parties and gone through the record. First of all we will deal with application (CMP No. 298 of 1998) under Order 6, Rule 17, C.P.C., for amendment of the written statement filed by the defendant. In this application the amendment of the written statement has been sought by adding the following preliminary objection:--
"PRELIMINARY OBJECTION :
1. That the alleged agreement dated 25-8-93 did not reflect the correct sale consideration and to which the defendant objected and the plaintiff had agreed to execute a proper agreement showing the sale consideration of Rs. 7 lakh and as such, bought a fresh stamp paper for fresh agreement as the agreement dated 25-8-93 did not reflect the correct consideration and was not valid. The agreement dated 27-8-93 again did not show the correct terms and the sale consideration amount and, therefore, the parties made additions and alterations and correction in the same, also sale consideration was shown as 7 lakhs instead of 4 lakhs which the plaintiff had wrongly shown. The plaintiff kept the original agreement with him and gave the photostat copy of the same to the defendant/appellant. The said agreement has been exhibited as Ex. D-1. The plaintiff is estopped from filing the suit on account of his acts, deeds and conduct and now set up the agreement dated 25-8-97 which had stood cancelled and revoked. The claim of the plaintiff that the property was agreed to be sold for Rs. 4 lakhs is false and frivolous and the plaintiff has duped the defendant while drafting the agreement dated 25-8-1993 and 27-8-1993 showing the consideration of Rs. 4 lakhs by stating that Rs. 3 lakh would be paid in cash to which the defendant had objected and had submitted that the entire consideration of Rupees 7 lakhs be shown and paid as per the agreement. Further since the entire property of the defendant is being taken by the plaintiff and the defendant would become landless not only in Himachal Pradesh but throughout the country. It is submitted that the agreement of sale cannot be enforced and is void as prior permission of the State Government is required for purchase of the properly under the provision of the H. P. Tenancy and Land Reforms Act which provides that a person should not become landless by the sale of the property while granting permission under Section 118 of the H. P. Tenancy and Land Reforms Act. The bargain sought to enforce is unreasonable, oppressive and unconscionable. The particulars of the agreement dated 25-8-93 are otherwise vague and not enforceable, particularly when the plaintiff has never been ready and willing to perform his part of the contract and even now is not ready and willing to purchase the property for Rupees 7 lakhs. As such he is not entitled to specific performance of the agreement. Otherwise also in the facts and circumstances, the plaintiff is not entitled to the discretionary relief of specific performance and damages would be an adequate relief. The plaintiff has not paid any earnest money to the defendant and at the most he can claim Rs. 30,000/- which he claims to have paid to the defendant, which fact is disputed. It is submitted that the value of the property being Rs. 7 lakhs, the trial Court had no jurisdiction to try the case and grant the relief for specific performance. The agreement dated 25-8-93 is vitiated on account of misrepresentation of facts, fraud and is not enforceable. It is forbidden by law and cannot be enforced without prior permission of the State Government under Section 118 of the H. P. Tenancy and Land Reforms Act. It is submitted further that the agreement dated 25-8-1993 set up by the plaintiff has been cancelled and in any case the terms thereof are vague and not enforceable in law and not binding on the defendant. As such the suit of the plaintiff deserves to be dismissed."
23. As per the defendant the amendment sought for is necessary for determining the real controversy between the parties. It is of clarificatory nature and will not cause any prejudice to the plaintiff.
24. In his reply the plaintiff has opposed this application on the preliminary objections that it is mala fide and has been sought to prolong the litigation and also that it will change the nature of the defence by introducing new pleas-- (i) that the defendant after sale would become landless, (ii) that the agreement dated 25-8-1993 is not enforceable being unreasonable, oppressive and unconscionable and obtained by misrepresentation and fraud, (iii) that the plaintiff is not ready and willing to perform his part of the contract to purchase the suit property for Rs. 7 lacs, and (iv) the trial Court had no pecuniary jurisdiction to try the case and grant relief for specific performance as the consideration in the agreement to sell was Rs. 7 lacs. According to the plaintiff, there is no ambiguity in the earlier written statement, which needs clarification by way of amendment sought for. It is also alleged that by way of amendment sought for that the agreement dated 25-8-1993"stood cancelled, revoked and superseded by agreement dated 27-8-1993, the defendant intends to withdraw the admission that agreement dated 25-8-1993 was duly executed by him. The defendant has also filed rejoinder reiterating the averments made in the application and the contrary stated in the reply is denied.
25. We have heard counsel for the parties on this application. We do not find any substance in the submission made on behalf of the learned counsel for the defendant that the amendment sought for is of clarificatory nature and in necessary for adjudicating the controversy between the parties. He is not right in urging that the amendment sought for is bona fide and the additional plea intended to be raised will not prejudice the case of the plaintiff. No doubt, the legal proposition canvassed by him is correct that the amendment of written statement is on different footing whereby additional plea can be allowed to be raised, which is necessary to receive the controversy, whereas, the amendment of the plaint to set up a new case or a new cause of action, particularly when it is barred by limitation cannot be permitted, get the primary consideration for allowing the amendment in both the cases is that it should be bona fide and necessary for adjudicating the controversy between the parties, which is not satisfied in the present case. Having failed in the trial Court, the defendant has raised these additional pleas as stated in paragraph 24 hereinabove, which were available to him from the very beginning, in order to fill in the lacuna in his case to the prejudice of the plaintiff.
26. Further, by allowing the proposed amendment that the agreement dated 25-8-1993 stood cancelled, revoked and superseded by the agreement dated 27-8-1993, the defendant cannot be permitted to withdraw the earlier admission of due execution of agreement dated 25-8-1993. In a recent Judgment of the Supreme Court in Heeralal v. Kalyan Mal, AIR 1998 SC 618, the learned Judges while explaining the earlier two Judgment of the Supreme Court in Modi Spinning and Weaving Mills Co. Ltd. v. Ladha Ram and Co.. AIR 1977 SC 680 and Akshaya Restaurant v. P. Anjanappa, AIR 1995 SC 1498. have held in Para 10:--
"10. Consequently it must be held that when the amendment sought in the written statement was of such a nature as to displace the plaintiffs case it could not be allowed as ruled by a three-member Bench of this Court. This aspect was unfortunately not considered by latter Bench of two learned Judges and to the extent to which the latter decision took a contrary view qua such admission in written statement, it must be held that it was per incuriam being rendered without being given an opportunity to consider the binding decision of a three-member Bench of this Court taking a diametrically opposite view."
27. Further, one of the additional pleas sought to be raised that the trial Court did not have the pecuniary jurisdiction as the sale consideration of the property agreed to be sold was Rs. 7 lacs is misconceived, as the pecuniary jurisdiction is required to be determined on the basis of averments made in the plaint, which was for specific performance of agreement dated 25-8-1993 in which the sale consideration was Rs. 4 lacs. Moreover, this objection was required to be raised at the earliest and cannot be permitted in the present appeal.
28. Similarly, one more plea sought to be raised by way of amendment that the agreement dated 25-8-1993 is void as it would render the defendant landless, which was not considered at the time of granting permission to the plaintiff under Section 118 of the Act, is not only an afterthought but also without any basis and cannot be permitted to be raised in this appeal. Therefore, the amendment sought for consists of such new pleas as to dislodge the plaintiff completely from the case initially set up by the defendant in his written statement including admission of execution of agreement dated 25-8-1993.
29. In Haji Mohammed Ishaq Mohd. Sheikh Mohammed v. Mohamed Iqbal and Mohamed All and Co., AIR 1978 SC 798, it is held in paragraph 6:--
"..... .The amendment of the written statement sought was on such facts which if permitted to be introduced by way of amendment, would have completely changed the nature of their original defence. It would have brought about an entirely new plea which was never taken up either at the time of the dealings between the parties or in the original pleadings. The additional evidence sought to be adduced was in respect of the facts stated in the amendment petition. The High Court rightly rejected all those petitions and we need not mention in any detail the reasons thereof."
Applying the above principles, the application (C.M.P. No. 298 of 1998) is rejected having no merit.
30. Now coming to the appeal, in his first submission, the learned counsel for the appellant-defendant has assailed the findings of the District Judge on Issue No. 4 to urge that since the plaintiff has failed to state in his statement in the Court that he was ready and willing to perform his part of the contract, the decree for specific performance could not be granted in his favour in view of the bar under Section 16(c) of the Specific Relief Act. We will refer to the case laws cited by the learned counsel for the parties in respect of interpretation of Section 16(c) of the Specific Relief Act later but we would examine this point in the context of pleadings and evidence on record.
31. As we have noticed in the earlier part of our judgment, it is specifically pleaded in para 8 of the plaint that. 'The plaintiff has always been willing and is still willing to perform his part of contract to pay the balance amount of sale consideration i.e. Rs. 3,70,000/- (Rupees three lakhs and seventy thousand) to defendant No. 1. But it seems that the defendant is not interested in performing his part of the contract as he has refused to abide by the terms of the agreement dated 25th Aug., 1993." In reply to this para the defendant has stated in his written statement that, "The agreement to sell dated 25-8-1993 is not concluded and binding contract between the parties which stood superseded by the agreement dated 27-8-1993. The original deed of agreement dated 27-8-1993 executed between the parties in the presence of the witnesses is in the possession of the plaintiff which is being withheld by the plaintiff intentionally with oblique motives in order to grab the properties of defendant No. 1 for a song on the basis of the agreement deed dated 25-8-1993 which is neither intended to be acted upon nor has any legal force to bind the parties thereto as the same having been superseded by agreement dated 27-8-1993." From this reply it is clear that the defendant had not traversed the averments made by the plaintiff that he has always been ready and willing to perform his part of the agreement dated 25-8-1993.
32. Therefore, in view of the stand of defendant No. 1 in his written statement as well as his acts and conduct in not accepting the notices Exts. P-4 and P-8 requiring him to execute the sale deed and get it registered by 26-10-1993 as per the terms of the agreement dated 25-8-1993 it is clear that the defendant has repudiated the said agreement as a result of which the plaintiff is absolved from proving that he was ready and willing to perform his part of the contract. Moreover, the plaintiff in his examination-in-chief has categorically stated that:--
"...... I had been ready and willing to perform my part of the contract. I had been in possession of requisite sale consideration in the entire month of October, 1993 and thereafter as well. I had managed the sale consideration by withdrawal from my G.P.F. accumulation. I had also obtained sanction of the Government to acquire the suit property. I had notified the acquisition of funds by me and my willingness to perform my part of the contract as per registered notice, copy Ext. P-4."
After giving notice the plaintiff had also attended the Office of the Sub-Registrar on 26-10-1993 to get the sale deed registered but the defendant failed to come forward. The plaintiff thereafter filed the suit on 3-11 -1993. It is also proved on record from the statements of the plaintiff and Milap Chand PW-3, who has produced documents Exts. P-11, P-12 and Ext. PX that the plaintiff has not only sought permission to purchase the property in dispute under Section 118 of the Act but also withdrawn an amount of Rs. 3 lacs from his Provident Fund Account, which shows that he had been willing to perform his part of the contract and had finances to pay the balance sale consideration. In these circumstances, the omission in the statement of the plaintiff that he has always been ready and willing to perform his part of the contract is not material to deny him the relief of specific performance.
33. Section 16(c) of the Specific Relief Act is as under :--
"16. 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 purposes of clause (e).--
(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." From the above provision it is manifest that in a suit for specific performance the plaintiff must both aver and prove that he has fulfilled all the conditions precedent to the contract and that he is ready and willing to perform the contract on his part. The purpose behind this provision is that a person who has not performed his part of the contract or is not ready and willing to perform his part of the contract cannot come to the Court seeking specific performance thereof on the plea that the other party has failed to perform his obligation under the contract. In Prem Raj v. D.L.F. Housing and Construction (Private) Ltd., AIR 1968 SC 1355, the learned Judges came to the conclusion that absence of an averment on the part of the plaintiff as to readiness and willingness to perform his part of the contract tantamounts to the absence of cause of action which is fatal in view of Section 16(c) of the Specific Relief Act.
34. In Mrs. Gopal Devi v. Mrs. Kanta Bhatia, AIR 1994 Delhi 349, relied upon by the learned counsel for the defendant, in view of the notice given by the plaintiff to the vendor terminating the agreement to sell, the learned Judges came to the conclusion that the plaintiff has failed to prove that she was ready and willing to perform her part of the contract and the relief of specific performance was refused to her. Another judgment relied upon by the learned counsel for the defendant is N. P. Thirugnanam (dead) by L.Rs. v. Dr. R. Jagan Mohan Rao, (1995) 5 SCC 115 : (AIR 1996 SC 116), the ratio whereof does not help the defendant in view of the facts and circumstances of the present case.
It is held in para 5 of the judgment that:--
"5. It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the Court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under Section 20 of the Specific Relief Act, 1963 (for short "the Act"). Under Section 20, the Court is not bound to grant the relief just because there was a valid agreement of sale. Section 16(c) of the Act envisages that plaintiff must plead and prove that he had 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 those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the Court while granting or refusing to grant the relief. If the plaintiff falls to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the Court must, take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. Agitated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The Court may infer from the facts and the attending circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract."
35. In Sree Lal Chamaria v. Hariram Goenka, AIR 1926 Cal 181, after considering the earlier judgments the learned Judges have held that to succeed in a suit for specific performance of a contract or for damages for the breach thereof, the plaintiff must prove his readiness and willingness to perform his part of the contract. 'Readiness and willingness' used in such a connection imply not only the disposition but the capacity to perform the contract. If the defendant has repudiated the contract before the suit for specific performance is brought, the plaintiff is absolved from showing that he is ready and willing to perform his part of the contract, as the claim for a decree for specific performance of contract is not a matter of right. The Court has to consider the whole of the surrounding circumstances and the position of the parties and then to consider whether in the exercise of its discretion, no doubt to be exercised on well known principles, the Court should grant such relief or grant damages in lieu thereof. In Ramesh Chandra Chandlokv. Chuni Lal Sabharwal. AIR 1971 SC 1238, it is held in paragraph 7 :--
"...... Readiness and willingness cannot be treated as a strait-jacket formula. These have to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned.........."
Applying the above principles laid down by the Supreme Court to the facts and circumstances of the present case we uphold the findings of District Judge on Issue No. 4.
36. Another submission made by learned counsel for the defendant is that the agreement dated 25-8-1993 was superseded by the agreement dated 27-8-1993, whereas, the suit of the plaintiff had been decreed for specific performance of the agreement dated 25-8-1993. This argument has been raised to be rejected, as the agreement dated 25-8-1993 Ex. P-3 was duly signed by the defendant and the cuttings made therein are admittedly in his handwriting and also initialled by him wherein the sale consideration is mentioned as Rs. 4 lacs out of which a sum of Rs. 30,000/- is said to have been received by the defendant and the balance consideration remains to be Rs.3,70,000/-. From the statements of the plaintiff, defendant No. 2 and Ranjit Singh PW 2. and other facts and circumstances proved on record it is clear that due to several cuttings, additions, alterations and overwritings in the agreement dated 25-8-1993 the parties had agreed to prepare and execute another agreement incorporating all the cuttings, additions, alterations and overwritings in the agreement dated 25-8-1993, which was in fact prepared and executed by the plaintiff on 27-8-1993, a carbon copy whereof is Ex. P-9 on record, but its original after signatures by the defendant has not seen the light of the day and the alleged carbon copy of the agreement dated 27-8-1993 Ex. D-1 contains such additions, alterations, cuttings and overwritings, which were not initialled by the plaintiff as he had never agreed to them. Therefore, the learned counsel for the defendant is not right in urging that agreement dated 25-8-1993 was superseded by agreement dated 27-8-1993.
37. Lastly, it is urged by learned counsel for the defendant that in the facts and circumstances on record the ends of justice will be met if the alternative prayer of the plaintiff for payment of damages is allowed instead of specific performance of the contract. He has referred to the judgment in Ganesh Shet v. Dr. C. S.G.K. Setty, (1998) 5 SCC 381 : (AIR 1998 SC 2216) wherein a decree for specific performance was denied after coming to the conclusion on the facts and circumstances on record that there was no concluded contract between the parties. Referring to Section 20 of the Specific Relief Act in para 12 of the judgment it is observed that circumstances referred to in Sub-clauses (2) to (4) in regard to exercise of discretion for granting a decree for specific performance are not exhaustive. The relief for specific performance is discretionary and is not given merely because it is legal but it is governed by sound judicial principles. The learned Judges have referred to an earlier judgment of the Supreme Court in Sardar Singh v. Krishna Devi (Smt), (1994) 4 SCC 18 : (AIR 1995 SC 491), wherein in para 14 it is observed :--
"The next question is whether the Courts below were justified in decreeing the suit for specific performance. Section 20(1) of the Specific Relief Act, 1963 provides that the jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief, merely because it is lawful to do so; but the discretion of the Court is not arbitrary but -sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal. The grant of relief of specific performance is discretionary. The circumstances specified in Section 20 are only illustrative and not exhaustive. The Court would take into consideration the circumstances in each case, the conduct of the parties and the respective interest under the contract."
(Also see: M. L. Devender Singh v. Syed Khaja, AIR 1973 SC 2457).
38. In another judgment of the Supreme Court in Valiammal Rangarao Ramachar v. Muthukumaraswami Gounder, (1982) 3 SCC 508, in view of the interpolation in the deed of the agreement by the vendor to defeat vendee's claim for specific performance, who was always ready and willing to perform his part of the agreement, the decree for specific performance granted by the High Court was held justified having regard to the conduct of the vendor,
39. Applying the ratio of above-quoted judgments of the Supreme Court to the case in hand, who have no hesitation to hold that taking into consideration the peculiar facts and circumstances on record, the conduct of the parties, more specifically of the vendor, as discussed hereinabove and the respective interest of the parties under the contract, the decree for specific performance of the contract has been rightly granted in favour of the plaintiff. No other point is raised by the learned counsel for the defendant.
40. The result of above discussion is that there is no merit in this appeal and it is rejected with costs. The impugned decree and judgment dated 23-3-1998 passed by District Judge, Shimla is affirmed.