Allahabad High Court
Ram Giri vs Raghuvir Singh And 6 Others on 14 August, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Neutral Citation No:- 2025:AHC:138775
Court No. 37
Reserved on: 17.7.2025
Delivered on: 14.8.2025
Second Appeal No.433 of 2022
Appellant :- Ram Giri
Respondents :- Raghuvir Singh and 6 Others
Counsel for Appellant:- Mr. B. Malik, Mr. Amit Malik
Counsel for Respondent :- Mr. Rishikesh Tripathi
Hon'ble Chandra Kumar Rai,J.
1. Heard Mr. B. Malik, learned counsel, assisted by Mr. Amit Malik, learned counsel for the defendant-appellant and Mr. Rishikesh Tripathi, learned counsel for the plaintiff-respondent.
2. Brief facts of the case are that plaintiff-respondent no.1 filed a suit for specific performance of agreement dated 5.9.2003 against the defendant-appellant which was registered as Original Suit No.602 of 2005. In the plaint it was alleged that agreement dated 5.9.2003 was entered into between the plaintiff and defendant for sale of ½ share of khasara no.1411, area 2.326 hect. for consideration of Rs.2,60,000/- and Rs.2,48,000/- was paid as earnest money before the Registrar and remaining Rs.12,000/- was to be paid at the time of execution of sale deed. The time period for execution of sale deed mentioned in agreement to sell was 1 year. The defendant has filed his written statement, stating that he was in need of Rs.2,00,000/- for his personal work but he never intended to sell his property as plot no.1411 is the only source of maintenance of his family. Before the trial court, 7 issues were framed. The parties have adduced oral and documentary evidence in support of their cases. The trial court while deciding issue nos. 1, 3 and 7, has recorded finding that valid agreement to sell dated 5.9.2003 was executed between the plaintiff and defendant but defendant has not executed the sale deed in favour of plaintiff, hence, the suit for specific performance has been rightly filed on behalf of the plaintiff. The trial court while deciding the issue no.2, relating to readiness and willingness, has recorded finding that plaintiff was always ready and willing to perform his contract in pursuance of agreement to sell dated 5.9.2003. The trial court vide judgment and decree dated 7.2.2011, decreed the plaintiff's suit for specific performance of contract and directed the defendant to execute the sale deed within a period of one month in pursuance of agreement to sell dated 5.9.2003 after getting the balance consideration from the plaintiff. Against the judgment and decree of the trial court dated 7.2.2011, civil appeal was filed before the District Judge and the same was registered as Civil Appeal No.46/2011. The aforementioned appeal was heard by the Additional District Judge, Court no.13, Agra. In the aforementioned civil appeal, three points of determination were framed by the court. The 1st appellate court considering the finding recorded by the trial court, has held that agreement to sell dated 5.9.2003 (paper no.9-Ka) was rightly executed between the plaintiff and defendant and the plaintiff was always ready and willing to perform his contract in pursuance of the agreement to sell dated 5.9.2003. The 1st appellate court has also taken into consideration the provisions of Section 20 of the Specific Relief Act and has held that decree for specific performance has been rightly granted by the trial court in pursuance of the agreement to sell dated 5.9.2003. The 1st appellate court vide judgment and decree dated 18.2.2022 dismissed the civil appeal filed by the defendant. Hence, this second appeal on behalf of the defendant for the following relief:-
"Relief sought through this appeal is that this Hon'ble High Court may be pleased to set aside the judgment and decree dated 18.2.2022 passed by the learned Additional District Judge, Court No.13, Agra, dismissing the Civil Appeal No.46 of 2011 and affirming judgment and decree dated 7.2.2011 passed by Civil Judge, Agra in Original Suit No.602 of 2005 (Raghuveer Singh vs. Ramgiri)."
3. The following substantial questions of law have been framed by the appellant in the memorandum of instant second appeal:-
"1. Whether, the decree for specific performance must be granted if the defendant admits the execution of document (agreement), but only as security of loan of 2,00,000/- to fulfill his to repay the amount of his losses. Or the decree is discretionary when defendant has paid the amount to the plaintiff before suit when suit filed about one year after service of notice after the service of notice of defendant to plaintiff?
2. Whether, it is a case of hardship on the ground that land has been highly valuable (Rs. 6, 00, 000/-or Rs. 10,00, 000/-) and disputed land (1.2 hectare) is only land held by defendant's family of six members all are educated and unemployed specially in U.P. where the execution of agreement against loan usual practice. distinction is to be found right or wrong?
3. Whether, the decree for specific performance should be refused in case, the defendant paid in part or in full amount to the plaintiff and suit filed about one year or moreso, notice by plaintiff to the defendant?"
4. The second appeal was neither admitted nor any interim order was granted by this Court, accordingly, in Execution Case No.02 of 2022, the sale deed has been executed in favour of plaintiff-respondent and the possession has also been delivered to the plaintiff-respondent, accordingly, execution court has disposed of the Execution Case No.02 of 2022 vide order dated 29.10.2024 on the ground that decree has been satisfied.
5. Counsel for the appellant submitted that decree for specific performance cannot be granted if the defendant has denied the execution of agreement to sell alleged to be executed between the plaintiff and defendant. He submitted that decree of specific performance is discretionary relief and in the facts and circumstances of the instant case, the decree of specific performance cannot be granted by the Court. He further submitted that suit for specific performance has been filed in the instant matter after about 1 year from the date of service of notice to plaintiff, as such, decree for specific performance cannot be granted. He further submitted that disputed land measuring about 1.2 hect. was highly valuable land (Rs.6 lacs to Rs.10 lacs) but for meager amount of Rs.2,48,000/- the decree for specific performance has been granted by the trial court for execution of the sale deed in respect to the aforementioned area of the plot in question. He further submitted that the provisions of Section 20 of the Specific Relief Act has not been considered in proper manner, as such, the decree for specific performance passed by the trial court is liable to be set aside. He submitted that the execution of sale deed in the execution proceeding in absence of the interim order in the instant second appeal, will not prejudice the claim of the appellant in the instant second appeal. He submitted that second appeal should be allowed and the judgment and decree passed by the trial court as well as 1st appellate court should be set aside and plaintiff's suit should be dismissed. He further placed reliance on the following judgments of the Hon'ble Apex Court in order to demonstrate that decree for specific performance is discretionary one and comparative hardship is to be looked into while granting decree for specific performance:-
"1. AIR 2002 Supreme Court 1279, V. Muthusami (dead) by Lrs. vs. Angammal and Others;
2. AIR 2014 Supreme Court 2253, Shamsher Singh and Others vs. Rajinder Kumar and Others;
3. AIR 2019 Supreme Court 4252, Madhukar Nivrutti Jagtap and Others vs. Smt. Pramilabai Chandulal Parandekar (dead) through Lrs. And Others.
6. On the other hand, Mr. Rishikesh Tripathi, learned counsel for the plaintiff-respondent submitted that concurrent finding of fact has been recorded by the trial court and 1st appellate court to the effect that registered agreement to sell was executed between the plaintiff and respondent for execution of sale deed in respect to the plot in question within time limit fixed in the agreement to sell. He further submitted that both the courts have recorded finding of fact that plaintiff was always ready and willing to perform his contract in pursuance of agreement to sell dated 5.9.2003. He also submitted that provisions of Section 20 of the Specific Relief Act was also taken into consideration while passing impugned judgment, as such, there is no further scope of interference by this Court in exercise of jurisdiction under Section 100 of the Civil Procedure Code as no substantial questions of law are involved in the second appeal. He submitted that in pursuance of the decree of specific performance dated 7.2.2011, the sale deed has been executed and execution case has been disposed of on the ground that decree has been satisfied as well as possession has been delivered to the plaintiff, as such, the second appeal should be dismissed on this ground also. He placed reliance upon the judgment of the Hon'ble Apex Court reported in 2021 AIR (Supreme Court) 5342, V. Anantha Raju and Another vs. T.M. Narasimhan and Others.
7. I have considered the arguments of the learned counsel for the parties and perused the records.
8. There is no dispute about the fact that suit for specific performance filed by the plaintiff-respondent was decreed by the trial court vide judgment and decree dated 7.2.2011 and civil appeal filed by defendant, has been dismissed vide judgment and decree dated 18.2.2022.
9. In order to appreciate the controversy involved in the matter, the perusal of the seven issues framed before the trial court will be relevant which are as under:-
पक्षकारों के अभिवचनों के आधार पर निम्न वाद बिन्दू विरचित किये गयेंः "1- क्या प्रतिवादी ने वादी के पक्ष में दावी संपत्ति के 1/2 भाग को 2,60,000/- रू० मेविक्रय करने हेतु दिनांक 05'09.03 को मु० 2,48,000/- रू० बयाना प्राप्त करके पंजीकृत इकरारनामा निष्पादित किया?
2- क्या वादी अनुबंध के अनुसार अपने भाग को पूरा करने के लिये तत्पर एवं इच्छुक रहा है और अब भी तत्पर व इच्छुक है?
3- क्या वादी को प्रस्तुत वाद दायर करने का वाद कारण प्राप्त है?
4-क्या वादी का वाद विनिर्दिष्ट अनुतोष अधिनियम की धारा 38 व 41 से बाधित है?
5- क्या वादी का वाद विधिक रूप से पोषणीय है?
6- वादी किस अनुतोष को पाने का अधिकारी है?
7- क्या प्रतिवादी ने वादी दिनांक 05.09.03 को दो लाख रूपये बतौर ऋण थे और उसकोमय ब्याज एक साल के अंदर 2,48,000/-रू० के रूप में वादी को अदा कर दिये यदि हाँ तो प्रभाव ?"
10. The trial court considering the oral and documentary evidence adduced by the parties has recorded finding of fact that there was proper execution of agreement to sell dated 5.9.2003 in favour of plaintiff and defendant for execution of sale deed in respect of half share of khasra no.1411. The trial court has also recorded finding of fact that plaintiff was always ready and willing to perform his contract in pursuance of agreement to sell dated 5.9.2003. The finding of fact has also been recorded by the trial court that decree of specific performance is the proper relief to the plaintiff rather for payment of compensation to the plaintiff.
11. In civil appeal, the 1st appellate court in compliance of the provisions contained under Order 41 Rule 31 of the Civil Procedure Code, has framed three points of determination which are as under:-
उभय पक्ष की ओर से प्रस्तुत तर्कों, विधि व्यवस्थाओं व पत्रावली पर उपलब्ध समस्त मौखिक व प्रलेखीय साक्ष्य के सम्यक परिशीलन के आधार पर वर्तमान सिविल अपील में निम्नलिखित अवधार्य बिन्दु निर्मित किए जाते हैं :-
"1. क्या पंजीकृत इकरारनामा दिनांकित 05.09.2003 खसरा संख्या-1411 के क्षेत्रफल 2.326 है० स्थित ग्राम खाण्डा, तहसील एत्मादपुर, जिला आगरा के 1/2 भाग को मु0 2,60,000/- प्रतिफल में विक्रय करने हेतु तय किया गया तथा 2.48,000/- रूपए अग्रिम धनराशि के रूप में अदा कर, उपरोक्त पंजीकृत इकरारनामा, इस शर्त के साथ कि शेष मु० 12,000/- रूपए एक वर्ष के अन्दर अदा करके बैनामा निष्पादित किया जाएगा, प्रतिवादी / अपीलार्थी ने वादी / प्रत्यर्थी के पक्ष में पंजीकृत इकरारनामा निष्पादित किया और वादी / प्रत्यर्थी इकरारनामा दिनांकित 05.09.2003 की शर्तों के अनुसार बैनामा करने के लिए सदैव तत्पर व इच्छुक रहा है ? यदि हॉ तो प्रभाव।
2. क्या पंजीकृत इकरारनामा दिनांकित 05.09.2003 की शर्तों में ऋण की किसी शर्त का उल्लेख न होने के कारण, प्रतिवादी / अपीलार्थी के द्वारा पंजीकृत इकरारनामा दिनांकित 05.09.2003 की शर्तों (ऋण के बावत) के संबंध में अभिकथन व साक्ष्य गृाह्य योग्य हैं अथवा नहीं ?
3. क्या विद्वान विचारण न्यायालय द्वारा पारित प्रश्नगत निर्णय दिनांकित 07.02.2011 व डिकी पत्रावली में उपलब्ध तथ्यों, साक्ष्यों व विधिक उपबन्धों के सम्यक विवेचना पर आधारित है एवं क्या प्रश्नगत आदेश/डिकी पारित करने में विचारण न्यायालय ने अपने क्षेत्राधिकार का विधिपूर्ण ढंग से प्रयोग किया है ?"
12. The 1st appellate court while deciding the aforementioned points of determination, has taken into consideration the provisions contained under Section 92 of the Indian Evidence Act as well as Section 20 of the Specific Relief Act. The 1st appellate court has recorded finding of fact that there was valid execution of agreement to sell between the plaintiff and defendant on 5.9.2003 and plaintiff was always ready and willing to perform his contract in pursuance of agreement to sell dated 5.9.2003. The 1st appellate court has maintained the judgment and decree passed by the trial court considering the ratio of law laid down by the Court from time to time.
13. The scope of Section 16(c) of the Specific Relief Act, 1963 has been considered in the judgment of Hon'ble Apex Court reported in 2006 (2) JCLR 201 (SC) Aniglase Yohannan Versus Ramlatha & Ors. Paragraph Nos. 9, 10, 11, 12, 13 & 14 of the judgment of Hon'ble Apex Court in which earlier judgment of Hon'ble Apex Court has been considered will be relevant for perusal which are as under :-
"9. In Ardeshir H. Mama v. Flora Sassoon, AIR 1928 PC 208, the Privy Council observed that where the injured party sued at law for a breach, going to the root of the contract, he thereby elected to treat the contract as at an end himself and as discharged from the obligations. No further performance by him was either contemplated or had to be tendered. In a suit for specific performance on the other hand, he treated and was required by the Court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness from the date of the contract to the time of the hearing, to perform the contract on his part. Failure to make good that averment brings with it and leads to the inevitable dismissal of the suit. The observations were cited with approval in Prem Raj v. The D.L.F. Housing and Construction (Private) Ltd. and Anr., AIR (1968) SC 1355.
10. The requirements to be fulfilled for bringing in compliance of the Section 16(c) of the Act have been delineated by this Court in several judgments. Before dealing with the various judgments it is necessary to set out the factual position. The agreement for sale was executed on 15.2.1978 and the period during which the sale was to be completed was indicated to be six months. Undisputedly, immediately after the expiry of the six months period lawyer's notice was given calling upon the present appellant to execute the sale deed. It is also averred in the plaint that the plaintiff met the defendant several times and requested him to execute the sale deed. On finding inaction in his part, the suit was filed in September, 1978. This factual position has been highlighted in the plaint itself. Learned Single Judge after noticing the factual position as reflected in the averments in the plaint came to hold that the plaint contains essential facts which lead to inference to plaintiff's readiness and willingness. Para 3 of the plaint indicates that the plaintiff was always ready to get the sale deed prepared after paying necessary consideration. In para 4 of the plaint reference has been made to the lawyer's notice calling upon the defendant to execute the sale deed. In the said paragraph it has also been described as to how after the lawyer's notice was issued plaintiff met the defendant. In para 5 it is averred that defendant is bound to execute the sale deed on receiving the balance amount and the plaintiff was entitled to get the document executed by the defendant. It is also not in dispute that the balance amount of the agreed consideration was deposited in Court simultaneously to the filing of the suit. While examining the requirement of Section 16(c) this Court in Syed Dastagir v. T.R. Gopalakrishna Settty, [1999] 6 SCC 337 noted as follows:
"So the whole gamut of the issue raised is, how to construe a plea specially with reference to Section 16(c) and what are the obligations which the plaintiff has to comply with in reference to his plea and whether the plea of the plaintiff could not be construed to conform to the requirement of the aforesaid section, or does this section require specific words to be pleaded that he has performed or has always been ready and is willing to perform his part of the contract. In construing a plea in any pleading, courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one's case for a relief. Such an expression may be pointed, precise, sometimes vague but still it could be gathered what he wants to convey through only by reading the whole pleading, depending on the person drafting a plea. In India most of the pleas are drafted by counsel hence the aforesaid difference of pleas which inevitably differ from one to the other. Thus, to gather true spirit behind a plea it should be read as a whole. This does not distract one from performing his obligations as required under a statute. But to test whether he has performed his obligations, one has to see the pith and substance of a plea. Where a statute requires any fact to be pleaded then that has to be pleaded may be in any form. The same plea may be stated by different persons through different words; then how could it be constricted to be only in any particular nomenclature or word. Unless a statute specifically requires a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16(c) does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of "readiness and willingness" has to be in spirit and substance and not in letter and form. So to insist for a mechanical production of the exact words of a statute is to insist for the form rather than the essence. So the absence of form cannot dissolve an essence if already pleaded."
11. Again in Motilal Jain v. Ramdasi Devi (Smt.) and Ors., [2000] 6 SCC 420 it was noted as follows:
The other contention which found favour with the High Court, is that plaint averments do not show that the plaintiff was ready and willing to perform his part of the contract and at any rate there is no evidence on record to prove it. Mr. Choudhary developed that contention placing reliance on the decision in Varghese case [1969] 2 SCC 539. In that case, the plaintiff pleaded an oral contract for sale of the suit property. The defendant denied the alleged oral agreement and pleaded a different agreement in regard to which the plaintiff neither amended his plaint nor filed subsequent pleading and it was in that context that this Court pointed out that the pleading in specific performance should conform to Forms 47 and 48 of the First Schedule of the Code of Civil Procedure. That view was followed in Abdul Khader case (JT 1989 (3) SC527) However, a different note was struck by this Court in Chandiok case [1970] 3 SCC 140 : AIR [1971] SC 1238. In that case `A' agreed to purchase from `R' a leasehold plot. `R' was not having lease of the land in his favour from the Government nor was he in possession of the same. `R', however, received earnest money pursuant to the agreement for sale which provided that the balance of consideration would be paid within a month at the time of the execution of the registered sale deed. Under the agreement `R' was under obligation to obtain permission and sanction from the Government before the transfer of leasehold plot. `R' did not take any steps to apply for the sanction from the Government. `A' filed the suit for specific performance of the contract for sale. One of the contentions of `R' was that `A' was not ready and willing to perform his part of the contract. This Court observed that readiness and willingness could not be treated as a straitjacket formula and that had to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned. It was held that in the absence of any material to show that `A' at any stage was not ready and willing to perform his part of the contract or that he did not have the necessary funds for payment when the sale deed would be executed after the sanction was obtained, `A' was entitled to a decree for specific performance of contract.
That decision was relied upon by a three-Judge Bench of this Court in Syed Dastagir case [1999] 6 SCC 337 wherein it was held that in construing a plea in any pleading, courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one's case for a relief. It is pointed out that in India most of the pleas are drafted by counsel and hence they inevitably differ from one to the other; thus, to gather the true spirit behind a plea it should be read as a whole and to test whether the plaintiff has performed his obligations, one has to see the pith and substance of the plea. It was observed :
"Unless a statute specifically requires a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16(c) of the Specific Relief Act, 1963 does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of `readiness and willingness' has to be in spirit and substance and not in letter and form."
It is thus clear that an averment of readiness and willingness in the plaint is not a mathematical formula which should only be in specific words. If the averments in the plaint as a whole do clearly indicate the readiness and willingness of the plaintiff to fulfil his part of the obligations under the contract which is the subject-matter of the suit, the fact that they are differently worded will not militate against the readiness and willingness of the plaintiff in a suit for specific performance of contract for sale."
12. Lord Campbell in Cork v. Ambergate etc. and Railway Co., (1851) 117 ER 1229 observed that in common sense the meaning of such an averment of readiness and willingness must be that the non-completion of the contract was not the fault of the plaintiffs, and that they were disposed and able to complete it had it not been renounced by the defendant.
13. The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief.
14. Section 16(c) of the Act mandates the plaintiff to aver in the plaint and establish as the fact by evidence aliunde that he has always been ready and willing to perform his part of the contract. On considering almost identical fact situation it was held by this Court in Surya Narain Upadhyaya v. Ram Roop Pandey and Ors., AIR (1994) SC 105 that the plaintiff had substantiated his plea."
14. In view of ratio of law laid down by Hon'ble Apex Court on the scope of Section 16(c) of Specific Relief Act, 1963, there is no illegality in the judgment of trial Court as well as first appellate Court granting relief of specific performance of contract in the instant matter.
15. There can be no straitjacket formula for deciding the suit/appeal relating to specific performance of contract rather the same will depend upon the facts and circumstances of each case as to whether the decree for specific performance is to be granted or compensation be paid to the defendant or earnest money be paid along with interest to the defendant.
16. In the instant matter, the agreement to sell was denied by the defendant but both the courts have recorded finding on the basis of evidence on record that there was valid execution of agreement to sell between the plaintiff and defendant. The suit was filed within limitation in the year 2005 in view of the expiry of period as mentioned in the agreement to sell dated 5.9.2003. The finding of continuous readiness and willingness is also in favour of the plaintiff and the provisions of Section 20 of the Specific Relief Act has also been taken into consideration, as such, there can be no interference against the concurrent judgment and decree passed by the trial court as well as the 1st appellate court, decreeing the suit for specific performance. The substantial questions of law as framed in the memorandum of second appeal are not involved in this second appeal.
17. Considering the entire facts and circumstances, no interference is required in the matter. The second appeal is dismissed at the admission stage.
Order Date :- 14.8.2025 C.Prakash (Chandra Kumar Rai, J.)