Gauhati High Court
Md Zakir Ali Khan vs Md Maskandar Ali on 7 May, 2014
Author: N. Chaudhury
Bench: N. Chaudhury
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram
and Arunachal Pradesh)
Case No: RSA 91 of 2002
1. Md. Zakir Ali Khan
2. Md. Altaf Hussain Khan (Minor)
3. Md. Aki Khan (Minor)
4. Md. Sabir Ali Khan (Minor)
[All the appellants No. 1 to 4 are the sons of
Late Siddique Ali Khan].
5. Musstt. Sabirun Bibi @ Sabirun Nessa
W/o Late Siddique Ali Khan,
R/o Itkhola, Ghoniwala,
P.O:- Borakpar,
P.S:- Silchar,
District- Cachar, Assam.
...... Appellants
-Versus-
1. Md. Maskandar Ali
S/o Late Asab Ali,
R/o Rongpur, Part-II,
P.O- Barakpar,
P.S. Silchar
Dist- Cachar, Assam.
............ Respondent
-BEFORE-
HON'BLE MR. JUSTICE N. CHAUDHURY
For the Appellants :Mr. S Banik
Ms. B Sarma
Advocates
For the Respondent :Mr. SR Bhattacharjee
Page 1 of 9
RSA 91 OF 2002
Mr. HA Sarkar
Mr. S Bhattacharjee
Mr. B Acharya
Advocates
Date of Hearing : 07.05.2014
Date of delivery of
Judgment and Order : 07.05.2014
JUDGMENT AND ORDER (ORAL)
By this second appeal the defendant has challenged appellate judgment and decree dated 27.03.2002 passed by the learned Civil Judge (Sr. Divn.) No.1, Silchar, in T.A. 05/2001, reversing the judgment of the learned Trial Court and decreeing the suit of the plaintiff for specific performance of contract.
2. The respondent, as plaintiff, instituted title suit being No. 50/1993 in the court of learned Sadar Munsiff No.1, Cachar, Silchar stating that the predecessor of the defendants Late Siddique Ali Khan during his life time entered into a contract with the plaintiff on 29.06.1988 for sale of the suit land at a consideration amount of Rs.10,000/- (Rupees ten thousand) and received a sum of Rs. 8,000/- (Rupees eight thousand) from the plaintiff. The said deed was duly registered. It was stipulated in the deed for agreement for sale that upon receipt of the rest amount of Rs. 2,000/- (Rupees two thousand) within 23 (twenty three) months from the date of execution thereof necessary no objection certificate would be obtained from the appropriate authorities and sale deed would be executed and registered. When the proceeding for obtaining NOC was going on, Siddique Ali Khan Page 2 of 9 RSA 91 OF 2002 died on 28.06.1991 leaving behind the defendants of the suit as his legal heirs but they failed to honour the agreement executed by their predecessor despite repeated request of the plaintiff. Under such circumstances, the plaintiff instituted the suit praying for Specific Performance of Contract with respect to the suit land on realization of Rs. 2,000/- (Rupees two thousand) from him. On being summoned, the defendants appeared but did not file written statement denying the claim of the plaintiff. However, in paragraph 5 thereof a vague statement was made saying that a title suit being No. 51/1993 had already been filed by the defendants in the court of learned Assistant District Judge No.1, Cachar, Silchar, praying for declaration of the aforesaid agreement for sale as fraudulent and also for ejectment of the plaintiff from the suit land. The defendants also made a prayer that T.S. 50/1993 be stayed under Section 10 of the Code of Civil Procedure in view of pendency of T.S. 51/1993. The learned Trial court did not stay the suit and proceeded with the same.
3. As many as 4 (four) issues were framed by the learned Trial court on the basis of the contentions raised by the parties. The issues are quoted below:
i) Is there any cause of actions for the suit?
ii) Whether the suit is liable to be stayed under Section
10 of C.P.C. in view of T.S. No. 51/93 filed by the defendants in the Court of learned Asst. Dist. Judge No. 1, Silchar?
iii) Whether the bainapathra dt. 29-6-88 alleged to have been executed by Siddek Ali Khan predecessor of the defendants No. 1 to 5 is false and fraudulent one? Page 3 of 9 RSA 91 OF 2002
iv) Whether the plaintiff is entitled to any relief as prayed for?
Plaintiff examined 2 witnesses including himself and exhibited 4 documents including Ext. 1 and 2 of agreement for sale without objection. The defendants examined 2 witnesses including defendant No.5. Upon hearing the learned counsel for the parties and on perusal of the records the learned Trial court by judgment and decree dated 20.12.2000 partly decreeing the suit directing the defendants to make payment of the advanced money within 2 (two) months failing which the plaintiffs will be at liberty to go for Specific Performance of Contract for sale on the basis of agreement dated 29.06.1988 and 14.05.1990. The aforesaid judgment was challenged by the plaintiff in T.A. 5/2001. The learned Appellate court decided the issues afresh and arrived at the finding that the predecessor of the defendants had entered into agreement for sale with the plaintiff in regard to the suit land on consideration of Rs. 10,000/- (Rupees ten thousand) and thereupon had received a sum of Rs. 8,000/- (Rupees eight thousand) on the date of execution of the agreement. The learned first Appellate court found that despite tendering of the balance amount by the plaintiff the defendants refused to execute the sale deed. Having so found, the trial court judgment and decree was set aside and suit of the plaintiff for Specific Performance of Contract was decreed. This judgment was passed on 27.03.2002 directing the defendants to accept the balance consideration of Rs.2,000/- (Rupees two thousand) within 2 (two) months failing which sale deed shall be executed under Order XXI Rule 34(5) of the Code of Civil Procedure. The defendants have preferred the second appeal challenging the appellate judgment and decree and Page 4 of 9 RSA 91 OF 2002 this court by order dated 22.11.2013 framed the following substantial question of law:
"Whether the first Appellate court was justified in decreeing the suit of the plaintiff without recording any finding relating to readiness and willingness of the plaintiff to perform his part of contract?"
Subsequently, by order dated 28.04.2014 one additional substantial question of law was also framed as follows:
"Whether in view of recital made in Ext. 1 and 2 the plaintiff is stopped from making prayer for execution of sale deed with respect to the suit land?"
4. I have heard Ms. B Sarma, learned counsel for the appellant and Mr. B Acharya for the sole respondent.
5. The first substantial question of law is in regard to requirement laid down under Section 16(c) of the Specific Relief Act which requires that specific performance of contract cannot be enforced in favour of a person 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 and waived by the defendants. In this case vide paragraph 8 of the plaint, the plaintiff has claimed to be ready and willing to perform his part of the contract. Paragraph 8 of the plaint is quoted below:
"That the Plaintiff has been always and now also willing to perform his part of the contract in terms of the said Bainama-Patras. But the above -named Siddek Ali Khan and after his death the Defendants always failed and/or neglected and/or avoided on this or that plea to perform his/their part of the contract in terms of the said Bainama-Patras."Page 5 of 9
RSA 91 OF 2002 Section 61(c) of the Specific Relief Act, 1863 requires a plaintiff to plead and prove that he is ready and willing to perform his part of the contract. In a suit for specific performance of an agreement for sale, the only part to be played by a plaintiff is to make payment of the consideration in entirety. In the case in hand, out of the total consideration of Rs. 10,000/- (Rupees ten thousand), Rs. 8,000/- (Rupees eight thousand) was paid on the date of execution of the contract on 29.06.1988. It was decided that the balance amount of Rs. 2,000/- (Rupees two thousand) would be paid after no objection from the appropriate authorities would be obtained and thereafter the second party of the agreement would execute and register the sale deed. The agreement dated 29.06.1988 was renewed by the subsequent agreement dated 14.05.1990 by keeping the terms of agreement same. As per the pleadings of the plaintiff, he tendered the balance sum of Rs. 2,000/- (Rupees two thousand) but the legal heirs of the original owner did not execute the sale deed due to which filing of the suit became necessary. Receipt of Rs. 8,000/- (Rupees eight thousand) paid by the predecessor of the defendants has been exhibited even by the learned Trial court but for which a decree for refund of the amount was passed. The requirement of Section 16(c) is averment in the plaint as to readiness and willingness and establishment of such readiness and willingness by leading evidence. Having instituted the suit for getting sale deed with respect to the suit land and having continued the proceeding for all these years the plaintiff undoubtedly established his readiness and willingness for the purpose of getting the sale deed. Had there been no averment in the plaint in regard to requirement of Section 16(c) the matter would have been different. Here in this case there is adequate Page 6 of 9 RSA 91 OF 2002 pleading within the meaning of 16(c) of the Specific Relief Act and the plaintiff having pursued his claim before this court for all these years there is no doubt that the plaintiff stands by his readiness and willingness to get the decree. The learned first Appellate court having decreed the suit for Specific Performance of Contract has arrived at a finding that there was a valid contract between the parties in regard to sale of the suit land. Requirement of Section 16(c) of the Specific Relief Act having been satisfied in this case the first substantial question of law is, accordingly, decided in favour of the plaintiff/respondent.
6. Coming to the second substantial question of law, the learned counsel for the appellant submits that in the agreement for sale vide Ext. 1 and 2, the predecessor of the defendants on one side and the plaintiff on the other side agreed that if the sale deed was not executed after receipt of the balance sum of Rs. 2,000/- (Rupees two thousand) the amount would be refundable during the stipulated period. In that view of the matter there cannot be a decree of specific performance of contract and as such the decree passed by the learned Trial court for refund of money within a period of 2 (two) months by the defendants is just and proper.
7. Per contra, Mr. B Acharya, learned counsel for the respondent/plaintiff argues that although there is such a recital in the body of the plaint but by the penultimate sentence in both the agreements it has been specifically stated that once the plaintiff deposits the amount in the court on refusal by the second party to accept, plaintiff would be at liberty to obtain the sale deed executed by pursuing the procedure under Order XXI Rule 34 of the C.P.C. Mr. B Acharya further argues that refund would Page 7 of 9 RSA 91 OF 2002 arise only if the same is tendered within the stipulated period of 23 months as mentioned in the agreement. The money was never returned for which decree had to be passed by the learned Trial court. Now, that the stipulated period of 23 months is over and the plaintiff had tendered the balance sum of Rs. 2,000/- (Rupees two thousand), the subsequent part of the agreement as to execution of the sale deed under Order XXI Rule 34 of the C.P.C. has arisen and it is for this reason suit was instituted by the plaintiff.
8. Having heard the learned counsel for the parties and on perusal of the materials available on record it appears that the defendants did not file a formal written statement denying execution of the agreements (Ext. 1 and 2). A prayer was made for stay of the suit. In the said application it was mentioned that the suit had been instituted by the defendants being T.S. 51/1993 in the Court of learned Assistant District Judge No. 1, Cachar, Silchar for adjudging Ext. 1 and 2 as illegal and inoperative. In course of argument, the learned counsel for the appellant has informed this court that the said suit has been eventually dismissed and no appeal was preferred there-sagainst. Situated thus, the defendants forfeited their right of filing written statement and so what was there on record is only pleading of the plaintiff. The plaint unequivocally contained necessary averments required under Section 16 (c) of the Specific Relief Act. There was no denial to the same by the defendant as there was no written statement on record. Under such circumstances, the plaintiff was not under any obligation to lead any specific evidence for the purpose of establishing his readiness and willingness. However, the plaintiff led evidence, examined 2 witnesses and made specific statement in this regard. Even independent of this Page 8 of 9 RSA 91 OF 2002 evidence, by sustained and continuous of the proceeding pursuing the remedy for getting specific performance of the aforesaid agreement, the plaintiff has established his readiness and willingness. Recital made in the body of the Ext. 1 and 2, therefore, that once the amount received is refunded within the stipulated period, the agreement will come to an end has lost its significance. During the stipulated period of 23 months, undoubtedly the defendants or their predecessor did not return the money. So the question of refund of the amount cannot subsequently arise. The plaintiff having tendered the amount even thereafter the recital made in Ext. 1 and 2 as to refund of the money lost its significance. The second substantial question of law, therefore, is also decided in favour of the plaintiff/respondent.
9. Having decided both the substantial questions of law in favour of the plaintiff and against the appellant herein the second appeal is devoid of any merit and it is, accordingly, dismissed.
10. No order as to costs.
11. Before parting, it is to be kept on record that pursuant to the order of the appellate court, the plaintiff deposited the balance amount of Rs. 2,000/- (Rupees two thousand) on 27.05.2002 by treasury challan in the court of learned Munsiff No.1 at Silchar. In that view of the matter, the requirement as to payment under the impugned judgment and decree has already taken place.
JUDGE R. biswaS Page 9 of 9 RSA 91 OF 2002