Gujarat High Court
Navnithbhai Harmanbhai Patel vs Ambalal Kalidas Patel Since Deceased ... on 21 August, 2018
Author: Harsha Devani
Bench: Harsha Devani, A.S. Supehia
C/FA/558/2002 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 558 of 2002
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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NAVNITHBHAI HARMANBHAI PATEL
Versus
AMBALAL KALIDAS PATEL SINCE DECEASED THRO'HIS HEIRS
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Appearance:
MR AS VAKIL(962) for the APPELLANT (s) No. 1,2
MR HM PARIKH(574) with MR KISHAN DAVE for the RESPONDENT(s) No.
1,1.1,1.2,1.3,1.4,1.5,1.6
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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 13, 16 & 21/08/2018
ORAL JUDGMENT
(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI) Page 1 of 139 C/FA/558/2002 JUDGMENT
1. By this appeal under section 96 of the Code of Civil Procedure, 1908, read with Order XLI of the First Schedule thereto, the appellants (original plaintiffs) have challenged the judgment and order dated 1.11.2001 passed by the learned Civil Judge (S.D.), Anand in Special Civil Suit No.149 of 1993, whereby the suit has been dismissed with costs.
2. The appeal arises in the backdrop of the following facts:
2.1 On or about 18.8.1977, the respondent Ambalal Kalidas (the original defendant) instituted a suit being Special Civil Suit No.182 of 1977 in the court of the Civil Judge (SD), Nadiad, against his five brothers for partition of various movable and immovable properties, which, according to the respondent, were ancestral properties. On 6.2.1985, a decree for partition came to be passed in the said civil suit and certain properties came to the share of the respondent Ambalal Kalidas.
2.2 The respondent Ambalal Kalidas executed an agreement to sell dated 21.1.1991 (hereinafter referred to as the "suit agreement") in favour of the appellants herein and thereby agreed to sell to the appellants the land bearing Survey No.71 admeasuring acres 3 - 00 gunthas out of sub-plot No.3 (hereinafter referred to as the "suit property") at the rate of Rs.50,000/- per guntha, which comes to Rs.60,00,000/- (rupees sixty lakh) . At the time of execution of the agreement to sell, Rs.5,00,002/- (five lakh and two rupees) came to be paid to the respondent. The tenure of the agreement was two years from the date of execution. The appellants requested the respondent to get the agreement to sell registered, who, Page 2 of 139 C/FA/558/2002 JUDGMENT however, refused to accede to such request on the ground that the property being ancestral land, any agreement to sell or sale deed without the consent of his sons would be void. By an order dated 1.10.1991 passed by the District Registrar, the agreement was ordered to be registered. On 26.9,1991 one Shri Ramesh Ambalal son of the respondent filed a suit being Regular Civil Suit No.474 of 1991 in the court of the Civil Judge (J.D.) Anand against his father (the respondent) and his five brothers for partition of the ancestral properties, for possession and accounts and for an injunction restraining the respondent Ambalal Kalidas from transferring the properties in any manner whatsoever. One of the properties which formed part of the suit lands in the said case was the suit property. The appellant No.2 had applied to be joined as a party defendant in the said civil suit.
2.3 The appellants thereafter instituted a suit being Regular Civil Suit No.292 of 1992 in the Court of the learned Civil Judge (J.D.) Anand against the respondent Ambalal and his six sons and prayed for a permanent injunction that the defendants therein had no right to transfer the suit land, create third party interest whatsoever, etc. In paragraph 11 of the plaint of the said civil suit, it was specifically stated that the appellants reserved their right to file a separate suit for specific performance of the suit agreement after issuing necessary notice to the respondent Ambalal Kalidas and, accordingly, leave was prayed for under rule 2 of Order II of the First Schedule to the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code"). Thereafter the appellants issued a registered notice dated 26.11.1992 to the respondent to obtain non-agricultural permission and execute a registered sale deed Page 3 of 139 C/FA/558/2002 JUDGMENT in favour of the appellants. As the respondent did not comply with the notice, the appellants instituted the present suit being Special Civil Suit No.149 of 1993 against the respondent Ambalal Kalidas Patel for specific performance of the suit agreement. Alternatively, the appellants also prayed for damages of a sum of Rs.75,00,000/- (rupees seventy five lakh).
3. By the impugned judgment and decree, the trial court has dismissed the suit which has given rise to the present appeal.
4. For the sake of convenience, the appellants and the respondent shall hereinafter referred to as the plaintiffs and the defendant respectively
5. Mr. Apurva Vakil, learned counsel for the appellants/plaintiffs vehemently assailed the impugned order by submitting that the trial court has erred in holding that the suit was barred by the provisions of rule 2 of Order II of the First Schedule to the Code. It was submitted that the cause of action for an injunction suit is different than the cause of action of the subsequent suit seeking specific performance of the suit agreement. It was contended that on the cause of action of the injunction suit, the plaintiffs would not have been entitled to the relief of specific performance, which is prayed for in the subsequent suit. According to the learned advocate, there is no identity between the cause of action of the earlier suit and the cause of action on which the later suit is based inasmuch as the cause of action for the first injunction suit was that the defendant vendor and his sons, who are not executors of the suit agreement, were trying to frustrate or defeat the plaintiffs' Page 4 of 139 C/FA/558/2002 JUDGMENT right which was evidenced in the reply dated 25.9.1991 filed in the proceedings under section 73 of the Registration Act, 1908 before the District Registrar and Collector, Kheda whereas the cause of action for the present suit for specific performance is based on the non-performance of the suit agreement by the defendant vendor in favour of the plaintiffs vendees despite giving legal notice dated 26.11.1992. It was submitted that the ingredients to file the prior injunction suit are different than the ingredients of the subsequent suit for specific performance inasmuch as for the injunction suit the plaintiffs will have to make out a prima facie case, balance of convenience and irreparable loss which would fall under section 38 of the Specific Relief Act read with rules 1 and 2 of Order XXXIX of the First Schedule to the Code, whereas the ingredients of suit for specific performance are that the plaintiffs will have to prove continuous readiness and willingness to perform their part under the suit agreement and also prove that the defendant vendor failed to perform his part in terms of section 16 of the Specific Relief Act, 1963.
5.1 In support of his submissions, the learned advocate placed reliance upon the decision of the Supreme Court in the case of Sucha Singh Sodhi v. Baldev Raj Walia, 2018 SCC OnLine SC 373, wherein the court has held that the sine qua non for invoking Order 2 Rule 2(2) against the plaintiff by the defendant is that the relief which the plaintiff has claimed in the second suit was also available to the plaintiff for being claimed in the previous suit on the causes of action pleaded in the previous suit against the defendant and yet not claimed by the plaintiff. the cause of action to claim a relief of permanent injunction and the cause of action to claim a relief of specific Page 5 of 139 C/FA/558/2002 JUDGMENT performance of agreement are independent and one cannot include the other and vice versa. The court held that the cause of action to claim temporary/permanent injunction against the defendants from interfering in plaintiff's possession over the suit premises accrues when the defendant threatens the plaintiff to dispossess him from the suit premises or otherwise cause injury to the plaintiff in relation to the suit premises. It is governed by Order 39 Rule 1 (c) of the Code which deals with the grant of injunction. The limitation to file such suit is three years from the date of obstruction caused by the defendant to the plaintiff, whereas on the other hand, the cause of action to file a suit for claiming specific performance of agreement arises from the date fixed for the performance or when no such date is fixed, when the plaintiff has noticed that performance is refused by the defendant. The limitation to file such suit is three years from such date. Thirdly, when both the reliefs/claims namely, (1) Permanent Injunction and (2) Specific Performance of Agreement are not identical, when the causes of action to sue are separate, when the factual ingredients necessary to constitute the respective causes of action for both the reliefs/claims are different and lastly, when both the reliefs/claims are governed by separate articles of the Limitation Act, then, it is not possible to claim both the reliefs together on one cause of action. The court, in the facts of the said case, accordingly, held that the suit filed by the original plaintiff for specific performance of agreement against the respondent was not barred by Order II rule 2 of the Code and was maintainable for being tried on merits.
5.2 Reliance was also placed upon the decision of the Supreme Court in the case of Gurbux Singh v. Bhooralal, Page 6 of 139 C/FA/558/2002 JUDGMENT AIR 1964 SC 1810, for the proposition that in order that a plea of a bar under Order 2 rule 2 (3) of the Code should succeed the defendant who raises the plea must make out (i) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (ii) that in respect of that cause of action the plaintiff was entitled to more than one relief (iii) that being thus entitled to more than one relief, plaintiff, without leave obtained from the court omitted to sue for the relief for which the second suit had been filed.
5.3 The decision of the Supreme Court in the case of Sidramappa v. Rajashetty, 1970 (1) SCC 186 ➳ AIR 1970 SC 1059 was cited for the proposition that the requirement of Order 2, rule 2 of the Code is that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action. 'Cause of action' means the 'cause of action for which the suit was brought'. Cause of action is a cause of action which gives occasion for and forms the foundation of the suit. If that cause of action enables a person to ask for a larger and wider relief than that to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings. In case the cause of action on the basis of which the previous suit was brought does not form the foundation of the subsequent suit, the bar under Order 2 rule 2 of the Code would not operate.
5.4 Reliance was also placed upon the decision of the Supreme Court in the case of Deva Ram v. Ishwar Chand, AIR 1996 SC 378, wherein the court held that if a plaintiff is entitled to several reliefs against the defendant in respect of Page 7 of 139 C/FA/558/2002 JUDGMENT the same cause of action, he cannot split up the claim so as to omit one part of the claim and sue for the other. If the cause of action is the same, the plaintiff has to place all his claims before the court in one suit as Order 2 Rule 2 is based on the cardinal principle that the defendant should not be vexed twice for the same cause. What the rule, therefore, requires is the unity of all claims based on the same cause of action in one suit. It does not contemplate unity of distinct and separate causes of action. If, therefore, the subsequent suit is based on a different cause of action, the rule will not operate as a bar 5.5 Reference was made to the decision of the Supreme Court in the case of Alka Gupta v. Narendrakumar Gupta, AIR 2011 SC 9, wherein the court had held that while considering whether the second suit by a party is barred by Order 2 rule 2 of the Code, all that is required to be seen is whether the relief claimed in both the suits arise from the same cause of action; as well as to the decision of the Supreme Court in the case of Virgo Industries (Eng.) Private Limited v. Venturetech Solutions Private Limited, 2013 (1) SCC 625, for the proposition that the cardinal requirement for application of the provisions contained in Order 2 rule 2 (2) and (3) is that the cause of action in the later suit must be the same as in the first suit.
5.6 Reliance was also placed upon the decision of the Supreme Court in the case of Ratnavathi v. Kavita Ganashamdas, 2015 (5) SCC 223, wherein the court held that the suit for permanent injunction and the suit for specific performance were founded on different causes of action and hence could be filed simultaneously. Even the ingredients to Page 8 of 139 C/FA/558/2002 JUDGMENT file the suit for permanent injunction are different than that of the suit for specific performance of agreement. In the case of former, the plaintiff is required to make out the existence of prima facie case, balance of convenience and irreparable loss likely to be suffered by the plaintiff on facts with reference to the suit property as provided in Section 38 of the Specific Relief Act read with Order 39 Rule 1 & 2 of the Code. Whereas, in case of the latter, the plaintiff is required to plead and prove continuous readiness and willingness to perform his part of the agreement and to further prove that the defendant failed to perform his part of the agreement as contained in Section 16 of the Act. The court held that one of the basic requirements for successfully invoking the plea of Order 2 Rule 2 of the Code is that the defendant of the second suit must be able to show that the second suit was also in respect of the same cause of action as that on which the previous suit was based.
5.7 The decision of the Supreme Court in the case of Inbasegaran v. S. Natarajan, 2015 (11) SCC 12, was relied upon for the proposition that Order 2 rule 2 applies to cases where a plaintiff omits to sue a portion of the cause of action on which the suit is based either by relinquishing the cause of action or by omitting a part of it. The provision has, therefore, no application to cases where the plaintiff bases his suit on separate and distinct causes of action and chooses to relinquish one or the other of them. In such cases, it is always open to the plaintiff to file a fresh suit on the basis of a distinct cause of action which he may have relinquished.
5.8 It was submitted that in the facts of the present case, the cause of action for instituting the previous suit for permanent Page 9 of 139 C/FA/558/2002 JUDGMENT injunction and the present suit for specific performance being distinct, the provisions of Order II rule 2 of the Code would not apply and that the trial court has seriously erred in holding that the suit was barred by the provisions of Order II rule 2 of the Code.
5.9 Next it was contended that for the purpose of applying the provisions of rule 2 of Order II of the First Schedule to the Code, the former suit and the subsequent suit must be between the same parties, whereas in the facts of the present case, the former suit was against the defendant and his six sons whereas the present suit has been instituted only against the defendant, and hence, the parties to both the suits are not the same.
5.10 It was pointed out that it was also the case of the defendant vendor as reflected in the reply dated 20.11.1995 in Civil Miscellaneous Application No.112 of 1994, that the two suits are different, the parties are different and the reliefs claimed are different. It was submitted that having regard to the fact that the cause of action in both the suits were different and the parties were also not the same, the plaintiffs were not required to take leave under rule 2 of Order II of the First Schedule to the Code before instituting the subsequent suit.
5.11 In support of his submission, the learned counsel placed reliance upon the decision of the Andhra Pradesh High Court in the case of Abburi Rangamma v. Chitrapu Venupurnachandra Rao and others, AIR 1966 AP 325, for the proposition that Order 2 rule 2 does not preclude a second suit if it is based on a distinguished and separate cause of Page 10 of 139 C/FA/558/2002 JUDGMENT action. To attract the said rule, two conditions must be satisfied, firstly that the previous suit as well as the present suit arise out of the same cause of action and secondly, that the suit must be between the same parties.
5.12 Reference was made to the decision of the Madras High Court in the case of T. Radhakrishna Chettiar v. K.V. Muthukrishnan Chettiar and others, AIR 1970 Mad 337, for the proposition that the previous and the subsequent suit must arise out of the same cause of action and they must be between the same parties.
5.13 The decision of the Punjab and Haryana High Court in the case of Abnasi Singh v. Lajwant Kaur, AIR 1977 P&H 1, came to be cited for the proposition that in the earlier suit and the second suit must arise from the same cause of action and the two suits must be between the same parties and the earlier suit must have been decided on merits.
5.14 Reliance was also made to the decision of the Andhra Pradesh High Court in the case of M. Thimma Raju v.
Dronamraju Venkatakrishna Rao, AIR 1978 AP 835, wherein the court held that Order 2 rule 2 does not preclude a second suit based on a distinct and separate cause of action. In order to invoke the rule, two conditions must be satisfied; that the previous suit and the subsequent suit must arise out of the same cause of action and subsequently, they must be between the same parties.
5.15 Reliance was also placed upon the decision of the Himachal Pradesh High Court in the case of Smt. Nirmala v.
Page 11 of 139C/FA/558/2002 JUDGMENT Hari Singh, AIR 2001 Himachal Pradesh 1, wherein the court held that Order 2 rule 2 does not preclude a second suit based on distinct and separate cause of action. To make the rule applicable, the defendant must satisfy three conditions; (a) The previous and the second suit must arise out of the same cause of action; (b) Both the suits must be between the same parties; and (c) The earlier suit must have been decided on merits.
5.16 Reference was also made to the decision of the Orissa High Court in the case of Bipin and others v. Rudranarayan Misra, AIR 1978 Orissa 203, for a similar proposition of law.
5.17 It was accordingly, urged that it has been consistently held by different High Courts that to attract the provisions of rule 2 of Order II of the First Schedule to the Code, the previous suit and the second suit must arise out of the same cause of action and that both the suits must be between the same parties. It was urged that in the facts of the present case, the parties in both the suits were not same, and hence also, apart from the fact that both the suits arise out of distinct causes of action, the parties are also not the same, and hence, the bar under rule 2 of Order II of the First Schedule to the Code would not operate.
5.18 Referring to the impugned judgment and order, it was submitted that the trial court has also held that the suit is barred on account of non-joinder of necessary parties. It was submitted that the relief in the present suit is for grant of specific performance of the suit agreement dated 21.1.1991, Page 12 of 139 C/FA/558/2002 JUDGMENT the parties to which are admittedly only the plaintiff and the defendant Ambalal Kalidas. It was submitted that the second relief prayed for in the suit is to direct the defendant to get the land converted to non-agricultural and execute the sale deed in favour of the plaintiffs or their nominees and hand over the possession which also arises out of the suit agreement. Under these set of circumstances, strangers to the agreement to sell making a claim adverse to the defendant and contending that they are co-owners are neither necessary nor proper parties to the plaint and, therefore, the trial court was not justified in holding that the suit was barred on account of non-joinder of necessary parties.
5.19 In support of his submission, the learned counsel placed reliance upon the decision of a Full Bench of Madhya Pradesh High Court in the case of Panne Khushali and another v. Jeewanlal Mathoo Khatik and another, AIR 1976 MP 148, wherein the court held that strangers to contract making claim adverse to the title of the defendant contending that they are co-owners to contracted property are neither necessary nor proper parties and, therefore, not entitled to be joined as parties to the suit.
5.20 Reliance was placed upon the decision of the Punjab and Haryana High Court in the case of Atul Sharma and another v. Gurinder Singh and others, AIR 1984 P& H 365, wherein the court held that where the plaintiff sues for specific performance of an agreement to sell impleading only the vendors and there is no allegation in the plaint that the agreement is binding on the sons of the vendors, the title of the vendors or the right of their sons to the properties agreed Page 13 of 139 C/FA/558/2002 JUDGMENT to be sold is not a question involved in the suit and, therefore, the sons of the vendors are not necessary parties to the suit and cannot be joined merely for avoiding multiplicity of suits.
5.21 Reliance was also placed upon the decision of Punjab and Haryana High Court in the case of Aman Behal v. Aruna Kansal, AIR 1987 P&H 52, wherein it was held that in a suit for specific performance, the court has merely to decide as to whether the Karta had entered into an agreement of sale with the plaintiff and whether the sale deed could not be executed because of the default on the part of the defendant. These issues can be completely and effectively adjudicated upon without the presence of the coparcener before the court. Nor, is the presence of the coparcener necessary at the stage of execution of the decree, because the decree, if obtained, by the plaintiff could be executed without the coparcener being brought in the picture at any stage, as in the facts of the said case, the possession was already with the plaintiff.
5.22 Reliance was also placed upon the decision of the Allahabad High Court in the case of Gaurvi Sharma (Minor) and another v. Dinesh Chandra Gupta and another, 2002 (49) ALR 294, wherein the court observed that the agreement of sale was between the respondents and the suit for specific performance had been filed on that basis by the respondent No.1 against the respondent No.2 The question whether the revisionist or the respondent No.2 is the owner of the property is not relevant for the decision of the suit. The title or the ownership of the property cannot be decided in a suit for specific performance of contract of sale.
Page 14 of 139C/FA/558/2002 JUDGMENT 5.23 It was submitted that similarly in the facts of the
present case, whether the sons of the defendant had any share in the suit property is not relevant for deciding the suit as the title or the ownership of the property cannot be decided in the suit for specific performance of the suit agreement.
5.24 Reliance was made to the decision of the Punjab and Haryana High Court in Krishan Lal and others v. Tekchand and others, AIR 1987 P&H 197, wherein the court held that where in a simple suit for specific performance of a contract for sale, a decree is sought against the defendant for the purpose or enforcement of the contract entered into between the executants and no relief is sought against strangers to the agreement for sale and there is no right of relief in such suit against a person who is not a party to the agreement, the plaintiff would be in the event of his getting a decree for specific performance, get executed a sale deed which will bind only the executants thereof and would not affect the position of the persons who are not parties to the agreement. Section 19 of the Specific Relief Act clearly lays down that specific performance of a contract may be enforced against either party thereto. So, in suit a suit a person who is not a party to the agreement for sale is neither a necessary nor a proper party.
5.25 Reference was made to the decision of the Supreme Court in the case of Kasturi v. Iyyamperulal, (2005) 6 SCC 733, wherein the court in the context of the provisions of sub- rule (2) of rule 10 of Order I to the First Schedule to the Code held that the necessary parties in a suit for specific performance of contract for sale are the parties to the contract Page 15 of 139 C/FA/558/2002 JUDGMENT or if they are dead, their legal representatives as also a person who had purchased the contracted property from the vendor. In equity as well as in law, the contract constitutes rights and also regulates the liabilities of the parties. A purchaser is a necessary party as he would be affected if he had purchased with or without notice of the contract, but a person who claims adversely to the claim of the vendor is, however, not a necessary party. The court held that two tests are to be satisfied for determining the question who is a necessary party
- (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (2) no effective decree can be passed in the absence of such party.
5.26 It was, accordingly, contended that the plaintiffs could not have been non-suited on the ground that strangers to the suit agreement had not been joined as parties.
5.27 Reference was also made to the decision of this court in the case of Rasiklal Shankerlal Soni v. Natverlal Shankerlal Upadhyaya, AIR 1975 Guj 178, wherein the court observed that no relief had been claimed against the opponents No. 2 and 3 therein and no relief for possession was asked for. It was a simple suit for the enforcement of an agreement which was legal and valid. The parties to the agreement were the plaintiff and defendant No.1. The plaintiff was willing to take the risk and he could get whatever title his vendor had. The plaintiff was willing to take such title which the vendor had. A simple suit for specific performance of an agreement between the plaintiff and defendant No.1 could not be permitted to be converted into a suit for establishing title and that too against the wish of the plaintiff. The court, Page 16 of 139 C/FA/558/2002 JUDGMENT accordingly, held that the opponents No.2 and 3 were neither necessary parties to the suit nor was their presence necessary to adjudicate upon all the questions involved in the case. The learned counsel accordingly urged that a suit for specific performance cannot be refused if a vendor's title is defective.
5.28 Reliance was placed upon the provisions of section 13 of the Specific Relief Act, which provides for the rights of purchaser or lessee against the person with no title or imperfect title. It was submitted that the trial court was in error in dismissing the suit on the ground that the alleged coparcener are not parties to the suit.
5.29 It was further submitted that another aspect which is also required to be taken into consideration is the conduct of the defendant in trying to prolong the proceedings and frustrate the right of the plaintiffs. It was submitted that the trial court in the previous suit instituted by the plaintiffs had, while granting interim relief, directed the plaintiffs to take steps to consolidate both the suits to be heard together; however, the defendant had resisted the application for consolidation of both the suits on the ground that the causes of action in both the suits are different. Thus, the defendant is taking a contrary stand in different proceedings, namely, in the application for consolidation of suits, a stand is adopted that the causes of action in both the suits are different, whereas in the present case it is contended that the cause of action in both the suits being the same, the suit is barred by the provisions of Order II, rule 2 of the Code.
5.30 Next, it was submitted that the trial court while
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deciding issue No.6, namely, whether the suit agreement is void, has held that the agreement is void on account of breach of the provisions of section 63 of the Bombay Tenancy and Agricultural Lands Act, 1949 (hereinafter referred to as "the Tenancy Act"). It was submitted that that a decree of specific performance cannot be refused by placing reliance on section 63 of the Tenancy Act as the same would not make the suit agreement void.
5.31 Referring to the suit agreement, it was pointed out that what was agreed between the parties was that the defendant would get the land converted into non-agricultural land and thereafter, execute the sale deed in favour of the plaintiffs or their nominees. It was submitted that the plaintiffs have not called upon the defendant to straightway execute the sale deed but to act in accordance with the suit agreement and enforce the suit agreement, which would mean that the defendant vendor would have to obtain the necessary non- agricultural permission and only thereafter the sale deed would be executed. It was submitted that the suit agreement not being an agreement to purchase agricultural land, the provisions of section 63 of the Tenancy Act would not be attracted. The trial court was, therefore, not justified in refusing to grant a decree on the ground that the plaintiffs were not agriculturists. It was contended that the trial court could either have granted a conditional decree or the matter could have been referred to the authorities under the Gujarat Tenancy and Agricultural Lands Act for deciding the question as to whether the plaintiffs were agriculturists or not, however, the trial court had no jurisdiction to decide as to whether or not the plaintiffs were agriculturists.
Page 18 of 139C/FA/558/2002 JUDGMENT 5.32 In support of his submission, Mr. Vakil placed
reliance upon the decision of a Full Bench of this court in the case of Shah Jitendra Nanalal v. Patel Lallubhai Ishverbhai, AIR 1984 Guj. 145, wherein the court held that so long as the provision declaring transfer of vacant land in excess of ceiling limit under section 5(3) of the Urban Land (Ceiling and Regulation) Act, 1976 as void is subject to the right to move for exemption, obtain exemption and transfer the property, the power of an owner of vacant land in excess of the ceiling limit to 'alienate' such land is dormant in him and such power could be exercised by him in case he seeks exemption, satisfies the Government that the grounds for exemption exist and obtains such exemption. That being the case, a decree cannot be defeated on the ground that 'transfer' inter parties would not be possible. The court, accordingly, held that a conditional decree for specific performance subject to exemption being obtained under section 20 of the Urban Land Ceiling and Regulation Act, 1976 is permissible.
5.33 It was submitted that in the facts of the present case, the trial court could, therefore, have either directed the defendant to first obtain non-agricultural permission and thereafter, execute a registered sale deed in favour of the plaintiffs or could have given a conditional decree for specific performance, subject to non-agricultural permission being obtained. It was submitted that the trial court has, therefore, erroneously dismissed the suit instead of passing a decree for specific performance as prayed for and that this court may, therefore, set aside the impugned judgment and order passed Page 19 of 139 C/FA/558/2002 JUDGMENT by the trial court and issue a decree for specific performance, as prayed for by the plaintiffs.
6. Vehemently opposing the appeal, Mr. H. M. Parikh, learned counsel for the respondent submitted that for the purpose of being entitled to a decree for specific performance, the plaintiffs have to aver and prove that they were and are always ready and willing to perform their part of the obligations under the contract. Referring to the suit agreement Exhibit-76, it was submitted that in paragraph 7 thereof, it has been agreed that in connection with the rights of the vendees in the suit land based on the suit agreement, for all transactions as per the desire of the vendees, the vendor is required to put his signatures as required by the vendee from time to time or execute applications, reply, kabulat (consent), evidence, writing, documents, affidavit, bond, declaration, agreement, presence, etc. without any delay without taking any additional consideration; and that the vendees with a view to prove their rights under the agreement are entitled to enter into all kinds of transactions, signatures, etc. and the vendor shall not raise any objection or dispute in respect of the same. It was submitted that thus under the terms of the agreement, the vendees namely, the plaintiffs were required to obtain the signature of the defendant on any document; however, it is not the case of the plaintiffs that they had called upon the defendant to put his signature on any document and that he had refused. Reference was also made to condition No.9 of the agreement to sell, which provides that the vendee shall bear the entire costs of stamp fee, drafting, typing, advocates fee for the purpose of execution of the sale deed for ownership rights over the suit land and shall bear the cost of getting the Page 20 of 139 C/FA/558/2002 JUDGMENT title cleared and obtaining certificate and obtaining N.A. or other ancillary approvals.
6.1 Referring to the part of the agreement below the schedule, it was pointed out that it is provided therein that an agreement to sell together with possession has been executed in favour of the vendees. Under the terms of the agreement, that the defendant is required to execute a registered agreement to sell in connection with the rights under the said agreement, in favour of a proposed housing society or any other nominee of the vendees. Therefore, the stage for registration of the agreement to sell itself was not concluded and, consequently, the stage of execution thereof does not arise.
6.2 Referring to paragraph 8 of the plaint of the previous suit being Civil Suit No.292 of 1992, it was submitted that at the time when the plaintiffs instituted the suit for permanent injunction, it was within the knowledge of the plaintiffs that the defendant was not going to perform his part of the contract and on that day itself, the cause of action for filing a suit for specific performance had already arisen. It was submitted that as per the averments made in the plaint in the suit for injunction, at the time of instituting the suit, the plaintiffs were aware that their rights under the suit agreement are to be frustrated and that the plaintiffs had also lodged a criminal complaint against the defendant which was registered as Criminal Case No.1368 of 1993. Referring to paragraph 3 of the complaint (Exhibit-100), it was pointed out that the plaintiffs have stated therein that they had reasonably come to know that the suit lands are not of the independent ownership of the Page 21 of 139 C/FA/558/2002 JUDGMENT defendant and that the members of the HUF have got shares and rights in the suit property and that the members of the HUF have instituted a suit against the defendant accused. It was submitted that, therefore, the plaintiffs were well aware of the fact that the sons of the defendant had a share in the property and further that the rights of the plaintiffs under the suit agreement were likely to be defeated despite which they did not seek the relief of specific performance in the previous suit instituted by them.
6.3 Referring to paragraph 1 of the suit agreement, it was pointed out that from the recital contained therein it is clear that the defendant had got the land in a partition suit. Therefore, at the time of the execution of the suit agreement the plaintiffs were well aware that the suit land was ancestral in nature and that, therefore, the sons of the defendant would have a right in the same.
6.4 Referring to paragraph 3 of the plaint, it was pointed out that the plaintiffs had stated therein that on the basis of the registered banakhat, the defendant was required to obtain N.A. permission at the cost of the defendant and was required to get the same entered in the record and after getting the rights and title cleared, within a period of two years thereafter, was required to obtain the balance consideration from the plaintiffs and was bound to execute a sale deed in favour of the plaintiffs or in favour of any one or more persons nominated by the plaintiffs. It was submitted that the averments made in the said paragraph would affect the readiness and willingness of the plaintiffs because the plaintiffs have shifted their liability of bearing the cost of obtaining N.A. permission on the Page 22 of 139 C/FA/558/2002 JUDGMENT defendant. It was submitted that under the suit agreement, the onus of bearing the cost of obtaining N.A. permission and title clearance certificate was squarely on the plaintiffs, despite which, a contrary stand has been taken in the plaint. Moreover, the suit has been instituted after two and a half years of the execution of the suit agreement and hence, what is required to be examined is as to whether at that point of time, the plaintiffs had performed any part of their obligations thereunder.
6.5 The attention of the court was invited to the provisions of section 52 of the Indian Contract Act, 1872, which bears the heading "52. order of performance of reciprocal promises" and postulates that where the order in which reciprocal promises are to be performed is expressly fixed by the contract, they shall be performed in that order; and when the order is not expressly fixed by the contract, they shall be performed in that order which the nature of the transaction requires. It was submitted that under the agreement, the defendant was required to give his signature when asked for and that all the permissions were required to be obtained by the plaintiffs. It was contended that there is nothing in the pleadings to establish that the plaintiffs had performed any part of their obligations under the contract. It was submitted that to be entitled to that grant of a decree of specific performance the plaintiffs have to show readiness and willingness to perform their part of the obligations under the contract throughout.
6.6 Reference was made to paragraph 6 of the plaint wherein the plaintiffs have averred that on the basis of the facts it has become necessary to file the suit to see that the defendant Page 23 of 139 C/FA/558/2002 JUDGMENT performs his obligation under the agreement for the purpose of effectively implementing the agreement of sale as well as to see that the defendant obtains N.A. permission at his own cost and puts the plaintiffs in actual possession of the land and executes a registered sale deed in favour of the plaintiffs or in favour of the persons nominated by the plaintiffs, to submit that the averments made regarding the defendant having to obtain N.A. permission at his own costs is false and contrary to the agreement, inasmuch as, it is the plaintiffs who have to bear the expenses and that under the agreement, it was the liability of the plaintiffs to prepare the papers and that the defendant was only required to sign the name. It was pointed out that in the entire plaint there is no reference to the previous suit instituted by the plaintiffs.
6.7 Referring to the deposition of plaintiffs' witness No.2 Dhaneshbhai Bhikhabhai Patel, it was pointed out that not even an iota of evidence has been adduced to the effect that the plaintiffs have performed their part of the contract, because readiness and willingness is not only required to be pleaded but also to be proved. It was argued that no explanation is coming forth to show that the plaintiffs were prevented by any sufficient cause from performing their part of the obligations under the contract and, on the contrary, the witness has specifically admitted that he had not gone to the defendant with the balance consideration and that he had not incurred any expenses.
6.8 Reliance was placed upon the decision of the Supreme Court in the case of B. Vijaya Bharathi v. P. Savitri and others, AIR 2017 SC 3934, for the proposition that the Page 24 of 139 C/FA/558/2002 JUDGMENT obligation imposed by section 16 is upon the court not to grant specific performance to a plaintiff who has not met the requirements of clauses (a), (b) and (c) thereof. A court may not, therefore, grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance where of he seeks.
6.9 Reference was made to section 16 of the Specific Relief Act and more particularly to clause (c) thereof, which provides that specific performance of a 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 the terms the performance of which has been prevented or waived by the defendant. It was submitted that there is no evidence whatsoever to show that the plaintiffs were prevented by sufficient cause to perform their part of the contractual obligations or that the defendant has waived the terms of the performance.
6.10 Reference was made to the decision of the Supreme Court in the case of Pushparani S. Sundaram and others v.Pauline Manomani James (Deceased) and others, (2002) 9 SCC 582, wherein the question for consideration before the court was whether the appellants therein were always ready and willing to perform their part under the contract. The court took note of the fact that the plea that the appellants were ready and willing to perform their part of the contract was there in the pleading, and held that this by itself is not sufficient to hold that the appellants were ready and Page 25 of 139 C/FA/558/2002 JUDGMENT willing in terms of section 16(c) of the Specific Relief Act, as this requires not only such plea but also proof of the same. The court held that section 16 (c) of the said Act makes it clear that mere plea is not sufficient, it has to be proved. It was, accordingly, contended that the plaintiffs have not proved that they were always ready and willing to perform their part of the contract, and hence, no decree of specific performance can be granted.
6.11 The attention of the court was invited to the provisions of section 20 of the Specific Relief Act, to submit that the jurisdiction to decree specific performance is a discretionary remedy and has to be exercised on sound, reasonable and rational and acceptable principles. It was submitted that the trial court has judiciously exercised its discretion and has followed the decision of this High Court in Ashwinkumar Manilal Shah v. Chhotabhai Jethabhai Patel, AIR 2001 Gujarat 90, and decided the issues and that it is not the case of the appellants that the trial court has decided the case arbitrarily or capriciously. It was urged that once the trial court has decided the matter after following the settled principles laid down by binding decisions of this court as well as the apex court, the appellate court should refrain from interfering with such decision.
6.12 As regards the contention of the learned counsel for the appellants that the suit would not be barred by the provisions of Order II rule 2 of the First Schedule to the Code, it was submitted that the trial court has correctly held the suit to be barred.
Page 26 of 139C/FA/558/2002 JUDGMENT 6.13 The learned counsel for the respondent referred to
the decision of the Supreme Court in the case of Virgo Industries (Eng.) P. Ltd. v. Venturetech Solutions P. Ltd. (supra) at length and in great detail. It was pointed out that in the facts of the said case also, the former suit was a suit for permanent injunction restraining the appellant (defendant therein) from alienating, encumbering or dealing with the plaint scheduled properties to any other third party other than the plaintiff. The said relief was claimed on the basis of two agreements of sale entered into by the plaintiffs and the defendant in respect of two different parcels of immovable property. The plaintiff had also sought leave of the court to omit to claim the relief of specific performance with liberty to sue for the said relief at a later point of time, if necessary. Thereafter the plaintiff had instituted the suit for execution and registration of the sale deeds in respect of the same property and for delivery of the possession thereof to the plaintiff. The Supreme Court, while addressing the question as to whether the cause of action for the first and second set of suits is one and the same, held that on the date when the earlier suit came to be instituted, the plaintiff itself had claimed that the facts and events had occurred which entitled it to contend that the defendant had no intention to honour the agreements in question. The court held that in the aforesaid situation, it was open for the plaintiff to incorporate the relief of specific performance along with the relief for permanent injunction that formed the subject matter of the earlier suits. The court was of the view that the foundation for relief of permanent injunction claimed in the former two suits furnished a complete cause of action to the plaintiff in the subsequent suit to also sue for the relief for specific performance, yet, the said relief was omitted Page 27 of 139 C/FA/558/2002 JUDGMENT and no leave in this regard was obtained or granted by the court; and accordingly, held that the provisions of Order II rule 2 of the Code would apply. Mr. Parikh submitted that in the facts of the present case also, both the suits are based on the suit agreement. In both the suits, the contention is that the defendant has committed a breach and is not ready to perform his part of the contract. It was submitted that the decision of the Supreme Court in Virgo Industries (supra) has been referred to in the subsequent decisions on which reliance has been placed by the learned counsel for the appellants, but the Supreme Court, in the said decisions, has not disagreed with the view adopted in Virgo Industries. It was submitted that from the averments made in the plaint itself, it is evident that even the plaintiff had knowledge that he was required to file a suit for specific performance otherwise in the previous suit he would not have mentioned the same.
6.14 As regards the contention raised on behalf of the plaintiffs that the defendant, in his written statement filed in the previous suit, had not dealt with the part wherein, in the plaint, the plaintiffs had sought liberty to institute another suit after issuing notice to the defendant, it was submitted that the defendant is not required to answer the plea of liberty to sue on the other part. It is for the trial court to grant such liberty. It was further contended that such leave to institute another suit is required to be obtained right at the inception.
6.15 Dealing with the contention raised by the learned advocate for the appellants that to attract the bar under Order II rule 2 of the Code, the parties to the suits have to be the same, the learned advocate placed reliance upon the decision Page 28 of 139 C/FA/558/2002 JUDGMENT of the Calcutta High Court in the case of Phani Bhushan Mukherjee and others v. Rajendra Nandan Goswani and another, AIR 1947 Calcutta 11, wherein the court held that Order II rule 2 of the Code is not based upon the doctrine of merger. It enacts a special rule that if the plaintiff was able to claim a wider and much larger relief than that to which he limited his claim in the suit, and which arises out of the same cause of action he would not be entitled to recover the balance in a subsequent suit. The object of the rule is to prevent the splitting up of the same cause of action and to prevent the same person or persons being vexed twice. To make the rule applicable, two things are essential; firstly that the previous and the present suits must arise out of the same cause of action; and secondly, they must be between the same parties. In the facts of the said case, the court held that so far as the defendant No.1 is concerned, it could not be disputed that Order II rule 2 of the Code operates as a complete bar to the said suit but so far as the defendant No.2 is concerned, Order II rule 2 is not directly applicable. Mr. Parikh submitted that in the facts of the present case also, insofar as the defendant in this suit is concerned, the suit is barred by the provisions of Order II rule 2 of the Code as he was also a defendant in the former suit. It was contended that the executor of the suit agreement was a party in both the suits. Therefore, the subsequent suit is barred against him.
6.16 As regards issue No.3, namely, whether the plaintiffs are entitled to the relief of specific performance of contract and possession of the suit land as claimed in the plaint, the learned counsel for the defendant placed reliance upon the decision of this court in the case of Ashwinkumar Page 29 of 139 C/FA/558/2002 JUDGMENT Manilal Shah and others v. Chhotabhai Jethabhai Patel and others, AIR 2001 Gujarat 90, wherein the court has held that section 16(c) of the Specific Relief Act provides 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 the terms the performance of which has been prevented or waived by the defendant. The court held that it is clear from this provision that a person who fails to aver and prove that he has performed or has always been ready and willing and is still ready and willing to perform the essential terms of the contract is not entitled to a decree for specific performance of contract. It is essential that the plaintiff has to aver in the plaint that he has performed his part of the obligations under the contract and has always been ready and willing to perform his part of the contract. Readiness and willingness both have to be averred as well as proved by the plaintiff seeking a decree of specific performance. Even if there is an averment about the plaintiff's readiness to perform his part of the obligations under the contract but, there is omission or failure to allege in the plaint willingness of the plaintiff to perform all the obligations under the contract, the suit for specific performance is bound to be dismissed.
6.17 It was emphatically argued that the plaint contains a false statement that the expenses for obtaining N.A. permission and title clearance are to be borne by the defendant, and, therefore, not only the obligations of the plaintiffs have not been performed, a patently false statement has been made in the plaint. It was submitted that in terms of Page 30 of 139 C/FA/558/2002 JUDGMENT the suit agreement the plaintiffs were required to make necessary applications in the name of the defendant and obtain his signatures thereon, and that it is not the case of the plaintiffs that they had approached the defendant and that the defendant has refused to sign such documents. It was argued that in January, 1991, the suit agreement came to be executed, whereas the dispute as regards execution of the document arose in the month of May, 1991. However, in the first four months from January to May, the plaintiffs could have performed their part of the contract and that it is also not their case that they was ready and willing from day one till the date of the decree to perform their part of the contract.
6.18 Reference was made to the provisions of section 23 of the Contract Act which inter alia provides that the consideration or object of an agreement is lawful unless it is forbidden by law. Every agreement of which the object or consideration is unlawful is void. It was submitted that in the facts of the present case the suit lands are agricultural lands, whereas the plaintiffs are not agriculturists. Section 63 of the Tenancy Act prohibits even an agreement for sale of agricultural land to non-agriculturists, and hence, the suit agreement is void as being barred by law.
6.19 Reference was made to the decision of this court in the case of Punabhai Dhedubhai Baraiya v. Patel Chhaganbhai Parshottamdas, 1983 GLH 401, wherein the court has observed that even written agreements to enter into completed transfers in future are now covered by the provisions of section 43(1) as amended, but the said amendment of 1977 would not be of any avail in the said case Page 31 of 139 C/FA/558/2002 JUDGMENT as the transaction in that case took place seven years before on 14.3.1970 when the amended provision came into force. It was submitted that in the facts of the present case, the agreement to sell has been executed in January, 1991 after the amendment in section 43 and 63 Tenancy Act came into force, which bars even any agreement for sale, gift, exchange, lease or mortgage of any land in favour of a non-agriculturist. It was submitted that admittedly the plaintiffs were not agriculturists and, therefore the transaction is hit by section 63 of the Tenancy Act and in view of the provisions of section 23 of the Contract Act specific performance of such an agreement cannot be directed.
6.20 Summing up his arguments, Mr. Parikh submitted that as rightly held by the trial court, no case has been made out for specific performance by the plaintiffs, inasmuch as, they have not shown any readiness and willingness to perform their part of the contract.
6.21 Reference was made to paragraph 12 of the decision of the Supreme Court in the case of B. Vijaya Bharathi v. P. Savitri (supra) wherein the court had recorded a crucial fact, namely, that on 13.3.1992 the first defendant therein ran away from the Registering Authority making it clear that she did not want to act in furtherance of the agreement in executing a General Power of Attorney in favour of the plaintiff husband. The court held that the High Court was right in stating that no prudent person would stay quiet for a period of one year and eleven months after such an unequivocal repudiation of the agreement if they were really interested in going ahead with the sale transaction. The only inference, Page 32 of 139 C/FA/558/2002 JUDGMENT therefore, from this is that the plaintiff cannot possibly be said to be ready and willing throughout to perform their part of the agreement. Mr. Parikh submitted that the suit agreement was executed in January, 1991 and the defendant refused registration thereof in May 1991, whereas the suit came to be instituted in September, 1993 after a period of more than two years, which clearly indicates that the plaintiffs were not willing throughout to perform their part of the agreement. It was reiterated that specific performance of a decree is a discretionary remedy and should not be exercised capriciously or arbitrarily.
6.22 Dealing with the decision of the Supreme Court in the case of Sucha Singh Sodhi v. Baldev Raj Walia (supra) on which strong reliance has been placed on behalf of the appellants, it was submitted that in the facts of the said case the former suit was a suit for injunction for protection of possession and was not based upon the suit agreement and, therefore, the said decision would not be applicable to the facts of the present case and that it is the decision of the Supreme Court in the case of Virgo Industries (supra), which would be squarely applicable.
6.23 In conclusion it was urged that suit for specific performance is therefore, barred by the provisions of rule 2 of Order II of the First Schedule to the Code and is also bad on account of non joinder of necessary parties. Moreover, the plaintiffs have failed to prove that they were and are always willing to perform their obligations under the contract. It was submitted that the trial court has, after duly appreciating the evidence on record, recorded findings of fact and based its Page 33 of 139 C/FA/558/2002 JUDGMENT conclusions thereon, and that it therefore cannot be said that the impugned judgment and order is in any manner arbitrary or capricious so as to call for interference by this court and that the appeal being devoid of merits deserves to be dismissed.
7. In rejoinder, Mr. Apurva Vakil, learned advocate for the appellants submitted that on the aspect of readiness and willingness, there is complete misreading of the suit agreement. It was submitted that the defendant is in error in relying on clause (7) of the suit agreement for the purpose of contending that the obligation of obtaining N.A. permission was of the plaintiffs. Reference was made to clauses (5), (7) and (8) of the suit agreement to submit that the onus was on the defendant to first obtain the N.A. permission and thereafter, to accept the balance consideration and execute the sale deed. It was submitted that clause (8) contemplates possession of the suit land being handed over to the plaintiffs and for the plaintiffs to use the same as agreed in that clause. It was submitted that it is for the enjoyment of those rights that if the plaintiffs needed any cooperation from the defendant, the steps set out in clause (7) were required to be taken and that there was no obligation on the part of the plaintiffs to apply for and obtain N.A. permission and title clearance certificate.
7.1 It was further submitted that the question regarding readiness and willingness on the part of the plaintiffs is required to be considered in the light of the obligations under the suit agreement. Referring to the clauses in the agreement to sell, it was submitted that clauses (7) and (8) therein have Page 34 of 139 C/FA/558/2002 JUDGMENT to be read in conjunction with each other. It was submitted that under clause (5) of the agreement, the duration of the agreement is two years and the same further provides that it is the obligation of the defendant vendor to obtain the NA permission and title clearance and within two years thereafter, to obtain the balance consideration from the plaintiffs and execute the sale deed in favour of the plaintiffs or their nominee. It was submitted that in the light of the recitals contained in the agreement to sell, the entire edifice built by the defendant falls. It was submitted that in terms of the agreement, it was firstly the obligation on the part of the defendant to obtain the N.A. permission and the title clearance permission, whereafter within two years thereafter, the balance consideration was required to be paid by the plaintiffs and the defendant was required to execute the sale deed. It was submitted that under clause (9) also there is no obligation cast upon the plaintiffs to obtain the title clearance or the N.A. permission and that the plaintiffs are only required to bear the expenses for the same. It was argued that it is not the case of the defendant that he took any step and approached the plaintiffs for expenses and that the plaintiffs refused to do so. Reference was made to clause (10) of the suit agreement, to submit that if the defendant fails to perform the obligations under the agreement within the time prescribed, the plaintiffs have a right to file a suit for specific performance.
7.2 Referring to the second last paragraph of the suit agreement, it was submitted that there is no obligation there under that the agreement was required to be followed by another agreement to sell, as contended on behalf of the defendant. It was submitted that by virtue of the agreement, Page 35 of 139 C/FA/558/2002 JUDGMENT the suit agreement was to be registered. Either the same agreement was to be registered or any subsequent agreement with any one as the plaintiffs desired was to be executed. However, the same cannot be construed to mean that a subsequent agreement was required to be executed even with the plaintiffs. It was further contended that Naginbhai Ambalal Patel is the son of the plaintiff who has signed as a witness to the suit agreement and was therefore aware of the execution thereof but did not raise any objection that he had a share in the suit property and that his father did not have any authority to sell the same.
7.3 Reference was made to the contents of paragraph 3 of the plaint wherein it has been averred that on the basis of the agreement to sell, the defendant was required to convert the land into non-agricultural land at his own cost and was required to get the same entered in the record and get the title clearance in respect of the suit land and within two years thereafter, was required to obtain the balance consideration from the plaintiffs and execute the sale deed in favour of the plaintiffs or such persons, as may be nominated by the plaintiffs. The attention of the court was invited to the cross- examination of plaintiff No.2 Dhaneshbhai Bhikhabhai Patel, to point out that the witness, in his cross-examination, has clearly stated that the plaintiffs were required to bear the expenditure for title clearance and N.A. as well as any necessary permission. It was submitted that thus the testimony of the witness is consistent with the terms of the suit agreement. Referring to paragraph 10 of the written statement filed on behalf of the defendant, it was submitted that the same is only in the nature of denial and that the defendant does not say Page 36 of 139 C/FA/558/2002 JUDGMENT that it was the obligation of the vendee to get all these permissions. It was submitted that the contention that the obligation to obtain the N.A. permission and the title clearance was on the plaintiffs is, therefore, contrary to the terms of the agreement.
7.4 Referring to paragraph 4 of the plaint, it was submitted that the plaintiffs have shown readiness and willingness to perform their part of the suit agreement as required under Form 47 Appendix-A of the Code. It was pointed out that in response to the averments made in paragraph 4 of the plaint; the defendant's reply in the written statement is in the nature of mere denial.
7.5 It was submitted that when the plaintiffs came to know that the defendant's sons had filed a suit for partition, the plaintiff No.2 filed an application for being joined as a party in the said civil suit to protect his rights which shows his readiness and willingness to perform his part of the contract.
7.6 It was submitted that, insofar as the readiness and willingness on the part of the plaintiffs to perform their part of the contract is concerned, the first obligation was getting the suit agreement registered, after which the defendant was required to get the necessary permissions, and, therefore, ought to have approached the plaintiffs to bear the expenses for obtaining the permissions; however, on the contrary, when the plaintiffs went to get the suit agreement registered, the defendant resisted the same. It was submitted that had the defendant approached the plaintiffs, the plaintiffs were obliged to make the payment and after those obligations were over, Page 37 of 139 C/FA/558/2002 JUDGMENT the plaintiffs were required to offer the payment etc., till then there was no obligation on the part of the plaintiffs to offer the balance consideration for the suit lands. It was submitted that the conduct of the plaintiffs in approaching the defendant for registration of the suit agreement and pursuing the matter further till the agreement was ultimately registered and protecting their rights under the suit agreement by making application for being joined as party in the suit instituted by the defendant's son and instituting the previous suit for permanent injunction, clearly shows that the plaintiffs were always ready and willing to perform their part of the obligations under the suit agreement and that it was the defendant who resisted the same.
7.7 Reliance was placed upon the decision of the Supreme Court in the case of Sukhbir Singh and others v. Brijpal Singh and others, (1997) 2 SCC 200, wherein the court in the context of Form 47 and 48 prescribed under Appendix AA of the Code as amended by the said High Court, observed that what is required to be considered is whether the essential facts constituting the ingredients in section 16(1)(c) of the Act were pleaded and that found mentioned in the said form do in substance point to those facts. The procedure is handmaid to the substantive rights of the parties. On a perusal of the pleadings and the forms, the court found that the averments were consistent with the forms. The court further held that it is not a condition that the respondents should have ready cash with them. The fact that they attended the Sub-Registrar's office to have the sale deed executed and waited for the petitioners to attend the office of the Sub-Registrar is a positive fact to prove that they had necessary funds to pass on Page 38 of 139 C/FA/558/2002 JUDGMENT consideration and had with them the needed money for payment at the time of registration. It was held that it is sufficient for the respondents to establish that they had the capacity to pay the sale consideration and that it is not necessary they should always carry the money with them from the date of the suit till the date of the decree. Mr. Vakil submitted that in the facts of the present case, it was the plaintiffs who had called upon the defendant to get the suit agreement registered, but he did not turn up and that as held by the Supreme Court in the above decision, it is not a condition that the plaintiffs should have ready cash with them, therefore, the trial court was not justified in holding that the plaintiffs did not approach the defendant with Rs.55,00,000/- .
7.8 Reliance was placed upon the decision of the Supreme Court in the case of Faquir Chand and another v. Sudesh Kumari, (2006) 12 SCC 146, wherein the court held that the language under section 16(c) of the Act does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been ready and willing to perform his part of the contract. Therefore, the compliance with the readiness and willingness has to be in spirit and substance and not in letter and form.
7.9 Reference was made to the decision of the Supreme Court in the case of Ramakrishna Pillai and another v. Muhammed Kanju and others, (2008) 4 SCC 212, wherein the court held thus :
"10. There can be no quarrel with the position in law urged by learned counsel for the respondent about the Page 39 of 139 C/FA/558/2002 JUDGMENT parameters to be considered while dealing with a suit for specific performance. But the High Court's judgment is clearly vulnerable. Firstly, there was no dispute ever raised by the defendants about the readiness and willingness of the plaintiffs to fulfill their obligations. The High Court was clearly in error in holding that no plea regarding readiness and willingness was raised. As noted above, the trial court in its judgment has referred to various portions of the averments in the plaint where the plaintiffs had categorically stated that they were and are always willing to fulfill their part of the obligations. The High Court also failed to notice that there was no plea either the written statement or in the cross objections filed in the appeal before the High Court that the plaintiffs were not ready and willing to fulfill their part of the obligation.
11. The conclusions of the High Court are to the following effect:
"Then the question is whether the respective plaintiffs have pleaded and proved that they were always ready and willing to perform their part of the contracts. Even though time did not start to run on the expiry of two months from the dates of the agreements, certainly, the plaintiffs were aware that the defendants had to discharge their obligation and get a release of the mortgage in two months of the dates of the agreements. Until the sending of the notices preceding the suits, there is nothing to show that the plaintiffs at any time called upon the defendants to perform their part of the contract."
12. The conclusions are clearly contrary to the pleadings of the plaintiffs. It was categorically stated in the plaint in both the suits that the plaintiffs are always ready and willing to fulfill their part of the obligations and that defendants were evading the execution for one reason or the other.
13. Above being the position, the appeals deserve to be allowed, which we direct. The respondents shall execute the sale deed after receiving the balance of the consideration within a period of three months. If that is not done it shall be open to the appellants to move the trial court for necessary steps in that regard.
Page 40 of 139C/FA/558/2002 JUDGMENT 7.10 Reliance was also placed upon the decision of the
Supreme Court in the case of Gurdial Kaur v. Piara Singh, (2008) 14 SCC 735, wherein the court held that in terms of section 16(c) of the Specific Relief Act, the court must arrive at a finding that the plaintiff had not only averred but also established readiness and willingness on his part to perform his part of the contract. The court held that even for the purpose of section 16(1) of the Act, the entirety of the plaint must be taken into consideration. If upon reading the plaint in its entirety the court comes to the conclusion that for all intent and purport, the requirements of section 16(c) of the Specific Relief Act stood complied with, no exception thereto can be taken. The court noticed that the first appellate court inter alia opined that not only the plaintiff has expressed his readiness to purchase the land, his willingness to do so can be culled out from other averments made in the plaint as and in particular the one where he had stated that he had gone to the registration office for getting the deed of sale executed and registered but it was the defendant, who did not turn up. It was submitted that this decision would be squarely applicable to the facts of the present case as it was the plaintiffs who had gone to the registration office, but it was the defendant who did not turn up.
7.11 The attention of the court was drawn to paragraph 14 of the impugned judgment to demonstrate that it was pointed out to the trial court that the land was to be converted into non-agricultural land and thereafter the sale deed was to be executed and, therefore, there was no breach of the Page 41 of 139 C/FA/558/2002 JUDGMENT provisions of section 63 of the Tenancy Act. Reference was made to the findings recorded by the trial court in the impugned judgment and order, to submit that such findings are not sustainable in law. It was pointed out that the trial court has held that as far as the question regarding willingness and readiness of plaintiff No.2 is concerned, he has specifically admitted in his cross-examination that he has never gone with Rs.55,00,000/- to the defendant for the execution of the sale deed of the suit land; he has not shown any piece of evidence regarding his readiness and willingness except the bare words in the agreement. It was submitted that the findings of the trial court are not sustainable in law, inasmuch as, the time for performance of the obligations on the part of the plaintiffs had not matured after the registration of the suit agreement and that it was only after the defendant obtained non-agricultural permission and title clearance that the consideration was to be paid within a period of two years thereafter and the sale deed was to be executed. It was submitted that the trial court has, therefore, erred in holding that as the plaintiffs did not approach the defendant with Rs.55,00,000/- they had not proved that they were ready and willing to perform their part of the obligations under the suit agreement.
7.12 Referring to the notice dated 26.11.1992 issued by the appellants to the defendant for specific performance of the agreement, it was pointed out that by virtue of the said notice, the plaintiffs have called upon the defendant to convert the land into non-agricultural and to take payment and execute the sale deed. Referring to the reliefs prayed for in the plaint, it was pointed out that the plaintiffs have prayed that the defendant be directed to get the land converted to non-
Page 42 of 139C/FA/558/2002 JUDGMENT agricultural land and thereafter execute a registered sale deed in favour of the plaintiffs or the nominee of the plaintiffs. It was submitted that, therefore, the suit was for specific performance of the suit agreement to obtain non-agricultural permission and to execute the sale deed.
7.13 Referring to the decision of the Supreme Court in the case of B. Vijaya Bharathi (supra) on which reliance has been placed by the learned counsel for the respondent, it was submitted that the facts of the said case were different from the facts of the present case and that in the cited decision there is a clear finding that the plaintiff was not ready and willing and that the subsequent sale deed had not been challenged.
7.14 Dealing with the submission of the learned advocate for the respondent as regards the applicability of Order II rule 2 of the First Schedule to the Code, it was submitted that the decision in the case of Virgo Industries (supra) would not be applicable to the facts of the present case, inasmuch as, in the said case leave to file suit for specific performance at a later stage was not granted. Both the suits were against the same parties, and more significantly, the vendor had repudiated the agreement and returned the amount. It was submitted that in the facts of the present case the defendant has not repudiated the suit agreement and that till date, the amount of Rs.5,00,002/- paid by the plaintiffs at the time of executing the suit agreement has been retained by the defendant and no attempt has been made to even return such amount.
7.15 Referring to the decision of the Supreme Court in
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the case of Rathnavathi v. Kavita Ganashamdas (supra), it was pointed out that the decision of the Supreme Court in the case of Virgo Industries (supra) has been considered therein and the principle of law has been accepted. It was further pointed out that the Supreme Court in the case of Inbasagaran v. S. Natrajan (supra), has considered its earlier decision in the case of Virgo Industries (supra).
7.16 Reference was made to the plaint in the injunction suit and more particularly paragraph 8 thereof, to point out the cause of action stated therein. Referring to the written statement filed by the defendant in Special Civil Suit No.112 of 1994, it was submitted that in the reply there is no denial to the suit agreement and that the objection is essentially based on the alleged share of the sons and that the defendant has stated that he will have only one-seventh share. It was submitted that the defendant has not contended that he has repudiated the agreement to sell and that the plaintiffs should take back the earnest money and has retained the earnest money and has not cancelled the agreement to sell. Therefore, at that stage there is nothing to show that he did not want to abide by the agreement to sell.
7.17 Reference was made to the order dated 1.10.1991 passed by the District Registrar, Kheda to submit that it is the reply filed in this proceeding which forms the cause of action for instituting the first injunction suit. It was urged that it is the cause of action pleaded and disclosed that matters and that on those facts the plaintiffs did not have cause to file the suit for specific performance. It was contended that the principles of Order II rule 2 of the First Schedule to the Code will not apply Page 44 of 139 C/FA/558/2002 JUDGMENT to the facts of the present case and that the trial court has fallen in error in dismissing the suit on that count.
7.18 Alternatively, it was argued that in the previous suit, the plaintiffs had reserved a right to file a suit for specific performance which has not been dealt with by the defendant in the written statement. It was submitted that in the suit for permanent injunction, the trial court had passed an interim order dated 8.9.1994 wherein it had observed that the plaintiffs must take steps to see that the suits are heard together, which amounts to impliedly granting leave under Order II rule 2, which indicates that leave was not refused and that leave is impliedly granted. It was submitted that it is the court where the first suit is filed which has to grant the leave and that when the trial court has stated that both the suits should be tried together, such leave stands impliedly granted. In support of such submission, Mr. Vakil placed reliance upon the decision of the Patna High Court in the case of Hare Krishna Sen v. Umesh Chandra Dutt, AIR 1921 Patna 193 (FB), for the proposition that though leave under Order II rule 2 of the Code may not be in express terms, it may be inferred from overall facts of the case including the interim orders passed in the suit.
7.19 Reference was also made to the decision of the Madras High Court in the case of Ramanathan Chettiar v. Thakore Sahib, Limbdi, AIR 1938 Madras 865, wherein the court held that according to Order 2 rule 2 of the Code, when a person is entitled to more than one relief in respect of the same cause of action, he can, if he takes the permission of the court omit one of the reliefs claimed by him and if he takes Page 45 of 139 C/FA/558/2002 JUDGMENT such permission, a subsequent suit with respect to that relief will not be barred. In the facts of the said case, no specific order granting permission had been passed by the Bombay High Court. The court observed that Exhibit 'O' and 'L' made it clear that the claim with respect to the Vadavoor lands was withdrawn by the Nagarseths and the plaintiff therein, and permission to file a fresh suit within three months was accorded by the Bombay High Court, otherwise one could not understand the direction contained in Exhibit 'O' and Exhibit 'L' and the subsequent orders passed by the Bombay High Court extending the time. Exhibit 'O' directed that the costs of defendants No.1 and 2 with respect to the chamber summons should be paid in case the suit was not filed within three months, thereby implying that the court contemplated the filing of a suit within three months from that date. The court, accordingly, held that the order should be construed to mean that permission was granted by the Bombay High Court to the plaintiff and the fifth defendant therein, (that is, the Nagarseths and the present plaintiff) to file a fresh suit in respect of the Vadavoor lands. Mr. Vakil, accordingly, submitted that in the facts of the present case, the trial court having called upon the plaintiff to ensure that the previous suit and the present suit are tried together has impliedly granted permission under Order II rule 2 of the First Schedule to the Code.
7.20 Dealing with the decision of this court in the case of Ashwinkumar Manilal Shah (supra), it was submitted that in the facts of the said case, the plaint did not have any averments of readiness and willingness and that the plaint did not comply with certain statutory requirements, whereas in the Page 46 of 139 C/FA/558/2002 JUDGMENT facts of the present case, such averment is there in the plaint itself. It was submitted that in the facts of the present case, the son of the defendant is a witness to the said agreement. It was contended that the subsequent conduct of the defendant of not appearing before the Registrar cannot improve or worsen the suit agreement and that the defendant never resiled from the suit agreement and continued with it.
7.21 As regards applicability of section 63 of the Tenancy Act, it was submitted that the language employed therein is that sale or agreement to sell of agricultural land in favour of a non-agriculturist shall not be valid, the provision nowhere says that such transfer is void. Therefore, the question of holding that the suit agreement was void as being in breach of the provisions of section 63 of the Tenancy Act did not arise. It was contended that the suit agreement was not an agreement to purchase agricultural land as is evident from the recitals contained therein, namely that the defendant was first required to obtain non-agricultural permission and thereafter execute the sale deed, and the trial court has, therefore, erred in entering into the merits of the question as to whether the agreement was in breach of section 63 of the Tenancy Act. Lastly it was submitted that the impugned judgment is required to be reversed and the decree as prayed for deserves to be granted and that all factors in totality would require the discretion to be exercised in favour of the plaintiffs and against the defendant and in case it is not possible to grant specific performance of the agreement, the alternative prayer may be accepted and damages as prayed for may be granted.
8. For the purpose of better appreciating the controversy in Page 47 of 139 C/FA/558/2002 JUDGMENT issue, it would be necessary to refer to part of the evidence in some detail.
9. Since the trial court has dismissed the suit on the ground of the subsequent suit being barred by the provisions of rule 2 of Order II of the First Schedule to the Code, it may be germane to refer to the relevant paragraphs of the plaint in the present suit as well as in the previous suit.
10. In the plaint of the present suit, that is, Civil Suit No.149 of 1993, in paragraph 1 the plaintiffs have set out the description of the suit land and the fact regarding the defendant having acquired rights pursuant to the decree passed in Special Civil Suit No.182 of 1977. Paragraph 2 contains details regarding the payment of Rs.5,00,002/- made by the plaintiffs to the defendant. In paragraph 3, it is averred that on the basis of the registered banakhat, the defendant was required to obtain N.A. permission at the cost of the defendant and was required to get the same entered in the record and after getting the rights and title cleared, was within a period of two years thereafter, required to obtain the balance consideration from the plaintiffs and was bound to execute a sale deed in favour of the plaintiffs or in favour of any one or more persons nominated by the plaintiffs. In paragraph 4, it is stated that the plaintiffs in clear terms informed the defendant in writing that the plaintiffs are always ready and willing to perform their obligation under the registered banakhat and are even now ready to give the entire consideration in terms of the conditions of the banakhat and in this regard, the plaintiffs had given a registered notice dated 26.11.1992 to the defendant, Page 48 of 139 C/FA/558/2002 JUDGMENT which the defendant has not complied with. In paragraph 5, it is stated that on account of increase in the price of the land, the defendant has developed mala fide intention and has raised false disputes through his sons. The defendant is not taking any steps for converting the land into N.A. land in terms of the agreement and is not executing the sale deed. Hence, the plaintiffs are likely to suffer damages of Rs.75,00,000/- due to breach of the agreement. In paragraph 6, it is stated that on the basis of the above facts, it has become necessary to file this suit to see that the defendant performs his obligations under the agreement and for the purpose of effectively implementing the agreement to sell as well as to see that the defendant obtains N.A. permission at his own cost and puts the plaintiffs in actual possession of the land and executes a registered sale deed in favour of the plaintiffs or in favour of the person nominated by the plaintiffs. Paragraph 7 contains the cause of action wherein it is stated that the cause of action for the suit arose when the plaintiffs issued notice dated 26.11.1992 by registered A.D. for specific performance of the agreement to sell and from then and thereafter when the defendant gave his reply dated 2.12.1992 and refused to implement the agreement to sell and refused to perform his part of the obligations under the agreement to sell and refused to convert the land into non-agricultural land and did not execute the registered sale deed in favour of the plaintiffs and refused to hand over possession of the land to the plaintiffs. Paragraph 8 contains the valuation of the suit for the purpose of court fees. Paragraph 9 is the relief paragraph wherein the plaintiffs have prayed for : (1) specific performance of the agreement to sell; (2) to direct the defendant to get the land converted to non-agricultural land and to execute a registered Page 49 of 139 C/FA/558/2002 JUDGMENT sale deed in accordance with law and transfer the land in favour of the plaintiffs or such person, as may be nominated by the plaintiffs and hand over the actual possession of the land to the plaintiffs or to such person nominated by the plaintiffs and in case there is denial on the part of the defendant, the court may appoint a court commissioner at the cost of the defendant for execution of the agreement to sell and get the land converted into N.A. and execute the necessary registered sale deed in favour of the plaintiffs or in favour of the nominee of the plaintiffs and transfer the suit land in favour of the plaintiffs or nominee of the plaintiffs and hand over the actual possession to the plaintiffs or to nominee of the plaintiffs. Alternatively, it is prayed that for breach of the agreement, the defendant may be directed to pay Rs.75,00,000/- by way of damages to the plaintiffs.
11. A perusal of the recitals contained in the plaint reveals that no facts have been stated regarding the plaintiffs having called upon the defendant to get the suit agreement registered and the defendant having refused to do so or the fact regarding on of the son's of the defendant having filed a civil suit for partition or about the previous suit instituted by the plaintiffs for permanent injunction.
12. In the plaint of Civil Suit No.292 of 1991, in paragraph 1 the plaintiffs have referred to the description of the suit land and the fact regarding the defendant having become the owner by virtue of the decree passed in Special Civil Suit No.182 of 1977, etc. In the second paragraph the boundaries of the suit land have been described. In paragraph 3 it is averred that the defendant had executed an agreement to sell Page 50 of 139 C/FA/558/2002 JUDGMENT dated 21.1.91 of the suit land. In paragraph 4 it is stated that an agreement for sale has been executed between the plaintiffs and the defendants on 21.1.91 wherein the duration of executing the sale is mentioned, and condition has been specified namely that as mentioned hereinabove, after permissions are obtained under the provisions of law in force from time to time and the land is converted for non-agricultural purpose and the same is entered in the record and the right title of the property is cleared and the defendant obtains a certificate in that regard for the plaintiffs and executes the deed referred to hereinabove in favour of such person or persons as nominated by the plaintiffs. In paragraph 5 it has been stated that when the defendant No.1 has executed the agreement as the executor thereof, it means that expression executor includes the defendant No.1 as well as his heirs, guardians, successors, assignees etc. In paragraph 6 it has been averred that as the defendant No.1 refused to get the said agreement to sell registered, on 9.5.91, the plaintiffs had produced the agreement to sell in the office of the Sub- Registrar Anand for registration. However, as the defendant No.1 did not give his consent for registration of the agreement to sell, he was asked to remain present before the Sub- Registrar Anand to give his consent, however, as he did not come to give his consent, and as he did not remain present in the office of the Registrar on 15.5.91 for the purpose of registration, the Registrar refused to register the document, against which the plaintiffs filed an appeal before the District Registrar, Kheda under section 73 of the Indian Registration Act, wherein keeping in view the submissions of the plaintiffs and the defendant on 1.10.91 Shri P.P. Gadhvi, District Registrar Kheda had allowed the appeal and has ordered that Page 51 of 139 C/FA/558/2002 JUDGMENT the agreement to sell be produced for registration before the Sub-Registrar Anand and be registered ex parte as deed No.1905 dated 9.5.91. In accordance with the said order the Sub-Registrar Anand registered the agreement to sell on 8.10.91. In paragraph 7 it has been stated that the defendant has got a false partition suit instituted through his son. By this suit a declaration has been sought that the defendant has not right to create an encumbrance by transferring or mortgaging or entering into any agreement to sell and it is prayed that a perpetual injunction be passed that the defendants do not sell the suit land or create any encumbrance thereon. The defendants are making false attempts to frustrate the rights of the plaintiffs and are trying to harass the plaintiffs. Moreover, as the defendants are attempting to illegally transfer the suit land to others, it has become necessary to institute this suit for perpetual injunction restraining the defendants from in any manner selling, mortgaging, or in any manner transferring the suit land. In paragraph 8 which is the cause of action paragraph, it has been averred that the cause of action for the suit arose when the defendants with a view to defeat the rights of the plaintiffs to buy the suit land attempted to sell, mortgage or otherwise transfer the suit land to someone other than the plaintiffs and produced an affidavit in reply before the District Registrar and Collector, Kheda and from the facts stated therein it became clear that the defendants intend to transfer the suit land to someone other than the plaintiffs. Paragraph (9) relates to the court fees payable. Vide paragraph 10, the plaintiffs have sought relief to the effect that the defendants be restrained by a permanent injunction from transferring, mortgaging, executing any agreement to sell or sale deed or in any other manner creating any third party Page 52 of 139 C/FA/558/2002 JUDGMENT rights against the rights of the plaintiffs over the suit land.
13. In paragraph 11 it has been stated that the plaintiffs reserve their right to institute a suit for specific performance, if after the plaintiffs issue legal notice to the defendant No.1 on the basis of the suit agreement, the defendant No.1 does not execute a sale deed for sale of the suit land.
14. Having referred to the contents of the plaints of the former as well as present suit, the testimonies of the witnesses in the present case may be briefly referred to.
15. Plaintiff No.2 Dhaneshbhai Bhikhabhai Patel has been examined at Exhibit-98. He has deposed that the suit land is of the ownership of the defendant. He has produced an extract of the 7/12 record of the suit land which is exhibited as Exhibit
75. The witness has described the suit land and its boundaries and had deposed that by virtue of the agreement of sale of the suit land, they had agreed to purchase the same for a consideration of rupees sixty lakh. In respect thereof a banakhat (agreement to sell) had been executed on 21.1.91. Both the plaintiffs had paid Rs.2,50,001/- each towards execution of the banakhat by way of cheques details whereof are mentioned in the deposition. He has further deposed that the banakhat was executed by both the plaintiffs as well as the defendant Ambalal Kalidas in the presence of Naginbhai Ambalal and Rajendrabhai Arvindbhai. His signature had been obtained by the plaintiff No.1 and the defendant at Ahmedabad. The witness has produced the banakhat (the suit agreement) which is exhibited as Exhibit-76. He has deposed certain other facts regarding the banakhat. He has further Page 53 of 139 C/FA/558/2002 JUDGMENT deposed that he had issued a notice for getting the banakhat registered but the defendant had not remained present at the office of the Registrar; hence the Sub-Registrar had passed an order limiting it to the plaintiffs. He has produced a copy of the said order at Exhibit 77. As registration had been refused qua Ambalal, the plaintiffs had preferred an appeal before the District Registrar wherein the defendant had submitted his objections. Despite such objection, the District Registrar had passed an order against Ambalal Kalidas Patel. A certified copy of the said order is produced at Exhibit 78 which bears the signature of the District Registrar. Against the said order the defendant has not preferred any appeal.
15.1 The witness has further deposed that on the basis of this order, the banakhat has been registered. Based on the banakhat as per the conditions therein, the defendant was required to obtain title clearance and NA permission whereafter within two years, he was required to execute a registered sale deed in favour of the plaintiffs such person as may be nominated by the plaintiffs. Despite the above facts, the defendant did not take any steps to obtain NA permission, and hence, on 25.11.1992 they had issued a registered notice to the defendant (which is exhibited as Exhibit-79). Despite issuance of the said notice, the defendant did not comply with it. The defendant did not implement the notice, but got the names of his living heirs inserted in the 7/12 record vide Mutation Entry No.15452 dated 8.6.1992. They (the plaintiffs) had lodged their objections against the mutation entry, because of which Mamlatdar had rejected the same, against which the defendant filed RTS Appeal No.47 of 1992, which order is in force and was passed on 8.1.1994, a copy whereof Page 54 of 139 C/FA/558/2002 JUDGMENT is produced as Exhibit-81.
15.2 The witness has further deposed that before this suit, the plaintiffs had filed a suit against the defendants and his sons being Civil Suit No.292 of 1992 and had obtained stay order. The stay order had been confirmed till the final disposal of the suit. He had instituted the earlier suit because the defendant and his sons may partition the land and sell the same. He has stated that if the defendant says that he is not an agriculturist and therefore a sale deed cannot be executed in favour of a non-agriculturist, it is not true. Non agricultural permission of the suit land was required to be obtained and the same was required to be entered in the record and thereafter registered sale deed was to be executed.
15.3 He has further deposed that the banakhat was to be binding upon the defendant himself as well as his heirs, successors, assignees and transferees. The defendant's family is a joint family and he had executed the banakhat in his capacity as Karta of the joint family. He has further deposed that the defendant's son had instituted a suit for partition being Civil Suit No.484 of 1991 of the suit land without joining the plaintiffs as parties, wherein they had moved an application for being joined as parties, which had been allowed by the Gujarat High Court and the plaintiffs had been joined as parties in the suit. The defendant had not filed any reply to the registered notice for execution of the sale deed and had not complied with it and hence, they had instituted this suit. Relief has been prayed for execution of a sale deed on the basis of the banakhat.
Page 55 of 139C/FA/558/2002 JUDGMENT 15.4 In the cross-examination of this witness, it has come
out that he is a permanent resident of Ahmedabad and is residing there since thirty to thirty five years and that he is in the business of building organiser and construction at Ahmedabad. Various other details about the schemes executed by him are brought out in the cross-examination. He has admitted that he had instituted Criminal Case No.136 of 1993 in the Court of the Ahmedabad Metropolitan Magistrate against the defendant. He has stated that he has filed the present suit only against the defendant No.1 Ambalal Kalidas Patel, whereas Civil Suit No.292 of 1992 was instituted against seven defendants, out of whom defendant No.1 Ambalalbhai is the defendant in the present case. In Civil Suit No.292 of 1992, defendants No.2 to 7 are the sons of the present defendant. He has admitted that there was no agreement in respect of the suit land with the said defendants No.2 to 7 and that he had obtained an injunction order in the said suit. He has stated that he does not remember as to whether the defendants No.2 to 7 had been joined in Civil Suit No.292 of 1992 because he apprehended that they might sell their share in the suit land. In his cross-examination, it has further come out that in terms of the banakhat they had to bear the expenditure for title clearance and N.A. and for obtaining necessary permissions and that he had not incurred such expenditure. It has further come out that he had not obtained signatures on the documents referred to in paragraph 7 of Exhibit-76. He had not taken any action of getting signatures. He has deposed that he has signed the plaint after reading it. He has stated that in paragraph 3 at page 3 of the plaint, it has been mentioned that the defendant was required to obtain necessary permission for non-agricultural use at the cost of the defendant and it is also Page 56 of 139 C/FA/558/2002 JUDGMENT stated so in paragraph 5 that the non-agricultural permission was to be obtained at the cost of the defendant. In this regard, he wants to say that on the basis of the banakhat, the permission was required to be obtained by the defendant and he (the plaintiff) had to incur the expenditure. The witness is shown Exhibit-79 and he has stated that in response to the question as to whether he had sent the amount mentioned in the notice to the defendant, he has stated that he had not asked for it, and hence, he had not given it.
15.5 In his further cross-examination, he has admitted that the suit lands are agricultural lands. He has stated that he does not know what business Ambalal carries on but knows that his economic position is good. He has admitted that he was required to pay the balance amount of Rs.55,00,000/- to Ambalal and that he and the plaintiff No.1 Navnitbhai had not gone with Rs.55,00,000/- to the defendant for the purpose of executing the sale deed. He has denied that as he was not an agriculturist, it had been decided that the sale deed be executed after N.A. permission is obtained.
16. On behalf of the plaintiffs, one Rajendrabhai Arvindbhai Patel has been examined at Exhibit-114. This witness has signed as a witness in the banakhat Exhibit-76. He has deposed that the banakhat was in respect of survey No.71 of Bakrol and that Ambalalkaka (the defendant), Navnitbhai (Plaintiff No.1), Dhaneshbhai (Plaintiff No.2) and Naginbhai Ambalal Patel had signed thereon and that Naginbhai is the son of Ambalalkaka. He has further deposed that when he put his signature Dhaneshbhai, Naginbhai, Ambalalkaka as well as Navnitbhai were all present.
Page 57 of 139C/FA/558/2002 JUDGMENT 16.1 In his cross-examination, it has inter alia been
elicited that he was serving at Navnitbhai's place and he, therefore, had knowledge as regards his area of work, which was the accounts section. He has admitted his signature and proved the signatures of the other persons who have signed Exhibit-76. It has come out in his cross-examination that it has come to his notice in one or two instances that when Navnitbhai purchased land from anyone, he would obtain a power of attorney. He has admitted that Navnitbhai had executed the projects mentioned therein and that the expenditure for brochure and advertisement was incurred by Navnitbhai. He is not aware as to whether the expenditure incurred towards N.A. was credited in the register. He has admitted that he (Navnitbhai) used to get the procedure for N.A. done through his people. He has also admitted that Navnitbhai used to bear the cost of N.A.
17. On behalf of the defendant, Naginbhai Ambalal Patel who is his son and power of attorney has been examined at Exhibit-
161. The witness has deposed that his father had obtained the suit land by virtue of the decree passed by the court at Nadiad in Special Civil Suit No.182 of 1977. His father had instituted the said suit against his elder brother Motibhai Kalidas Patel wherein he had included all his brothers. His father's brother Motibhai was not partitioning the ancestral property, and hence, Special Civil Suit No.182 of 1977 had been instituted. He has inter alia deposed that in the land which came to the share of his father, he as well as his sons had a right. The defendant, that is, his father, had six sons and all of whom are adults. He has denied that the suit properties were self-
Page 58 of 139C/FA/558/2002 JUDGMENT acquired properties of his father and has stated that such properties came to the share of his father by virtue of the order passed in Special Civil Suit No.182 of 1977, wherein he and his brothers had a share. He has deposed that other than the present suit, the plaintiffs have also instituted another suit being Civil Suit No.292 of 1992 which is based upon the very same banakhat. Civil Suit No.292 of 1992 has been instituted against him, his father and his brothers. He has further deposed that the plaintiffs were aware of the fact that he and his brothers had a share in his father's properties. He has deposed that the suit agreement has been executed by his father in his personal capacity. The agreement has been signed by him in his individual capacity and that if the plaintiffs contend that his father has signed as Karta of the HUF such fact is incorrect.
17.1 He has further deposed that as stated in the banakhat, the plaintiffs were required to incur the expenditure for title clearance as well as for other certificates and for N.A. and that all these procedures were to be carried out by the plaintiffs. His father was simply required to put his signature on the application. In case their father did not sign the application, the plaintiffs could sign on behalf of their father and carry out the procedures, such provision had been made. He has further deposed that the plaintiffs had never sent any papers to his father for the purpose of signing them nor have they sent any amount towards expenditure for N.A. purpose and that the plaintiffs have not taken any steps by signing on behalf of their father. He has further deposed that the plaintiffs were required to form a proposed housing society and a registered agreement to sell was to be executed in favour of Page 59 of 139 C/FA/558/2002 JUDGMENT the housing society and they were required to execute a sale deed in favour of the housing society. If any society was formed and separate plots were constituted, sale deeds were to be executed in favour of those persons to whom the plaintiffs sell such land and that his father was not required to execute any sale deed in favour of the plaintiffs. He has further deposed that there was no necessity for his father to sell the suit land and that there was no legal necessity as his father had several lands.
17.2 In his cross-examination, it has inter-alia been stated that his father is 95 years of age. He has been extensively cross-examined as regards the contents of the power of attorney executed in his favour by the defendant. He has admitted that there was a partition suit between his father and his paternal uncles in respect of survey No.71. He has admitted that he or his brothers were parties in Special Civil Suit No.182/77. He has admitted that an arbitral award came to be passed in that suit and the suit land came to the share of the defendant. He has admitted that at the time when the agreement to sell came to be executed in the year 1991-92, the names of his father and his uncles were running in the 7/12 extract of survey No.71. He has admitted that in terms of the arbitral award, the possession of plot No.3 was handed over to his father and sub-plot No.3 is running in the name of his father alone and stands in his name even today. He has further deposed that his father had not informed him and his brothers about the execution of the banakhat and had kept them in the dark. He was not aware as to who was present at the time when the banakhat was written. He has stated that after the banakhat was executed, the plaintiff Navnitbhai had met him Page 60 of 139 C/FA/558/2002 JUDGMENT and has asked him to sign the banakhat and that he had told him that the land is ancestral land and that they were taking a risk. He has stated that he had resisted before the plaintiffs but had not done so before his father. The witness has admitted that he has signed as a witness in the banakhat and has voluntarily stated that on page 6 of the suit agreement a banakhat (agreement for sale) was to be executed in favour of a proposed housing society and the terms were to be decided in such a manner so as to not cause any loss to them, and hence, a housing society was to be formed and on that understanding he had signed as a witness. He has admitted that in the banakhat, it has been stated that the same would be binding upon the heirs of the vendor.
17.3 In his cross-examination it has been further elicited that his father had a bank account with Peoples Bank as well Mercantile Bank. He has admitted that his father had taken two cheques of rupees two lakh and fifty one thousand each from the plaintiffs. He has stated that both the cheques were deposited in his father's bank account with the Peoples Bank. He has admitted that he has not challenged the banakhat. He has admitted that there was a partition suit between him and his brother being 474/91 which was instituted after the banakhat was executed. The witness has voluntarily stated that after the banakhat was executed, a letter dated 25.5.91 was sent to Dhaneshbhai and Navnitbhai informing them that his father had no authority to execute the banakhat. The witness has admitted that the plaintiffs had issued notice through their advocate to execute a sale deed on the basis of the banakhat. He is shown the notice exhibit 76 and has admitted that it is the same notice. He has stated that his Page 61 of 139 C/FA/558/2002 JUDGMENT father had given his reply to the said notice on 2.12.91 and that he is willing to produce the same.
17.4 In his further cross-examination, the witness has admitted that his father had refused to get the banakhat registered. He has admitted that despite the fact that his father was called to the office of the Registrar, he had not remained present there. He has admitted that the plaintiffs had filed an appeal before the Kheda Collector and that his father had raised an objection in the said appeal to the effect that Dhaneshbhai was a resident of Ahmedabad and that he resides at a distance of 8 kilometres [At the relevant time, the expression "to cultivate personally" as defined under section 2(16) under the Tenancy Act, postulated that the land so cultivated should be so situated that no piece of land is separated from another by a distance of more than five miles (eight kilometres)]. He has admitted that Dhaneshbhai does not personally cultivate any land and his father had raised an objection. He has admitted that he has also raised an objection that the suit land is HUF property. He has admitted that the Collector had turned down all such objections and had ordered the banakhat to be registered.
17.5 In his cross-examination, the witness has stated that Civil Suit No.292/92 was instituted against him as well as Rameshbhai, Sureshbhai, Rajendrabhai as well as his father. He has admitted that the suit had been instituted after the affidavit-in-reply was filed and has voluntarily stated that Dhaneshbhai Bhikhabhai Patel (Plaintiff No.2) is a non- agriculturist and hence, he was not entitled to enter into such an agreement as the banakhat land is agricultural land. He has Page 62 of 139 C/FA/558/2002 JUDGMENT admitted that they were not ready to accept any condition of the banakhat and has voluntarily stated that it is necessary to see whether any agreement is legal and if the same is not legal then the conditions therein have no value. He has stated that prior to executing the banakhat, it was not necessary for them to make any inquiry as to the extent of land held by the plaintiffs. The witness has further been cross examined as regards Civil Suit No.474/91. He has voluntarily stated that after the plaintiffs herein made application for being joined as parties in that suit, they had made an amendment application seeking relief for setting aside the banakhat.
17.6 In his cross-examination, it has also been elicited that his father is the Chairman of a cooperative petrol pump and the trustee of Ambaji Temple and is a devotee of Ambaji Mata. He has admitted that for sometime in the morning and evening his father goes to the Ambaji Mata Temple. He has admitted that his father enjoys a very good reputation in Anand and is very honest and that he has no vices. He has denied the suggestion that the plaintiffs are and even at present ready and willing to comply with the conditions of the banakhat. He has admitted that he had read the complaint Exhibit 101. He has admitted that in the said judgment it was stated that the banakhat was executed at Anand. He has admitted that they have not preferred any appeal against the said judgment. He has admitted that after the banakhat was executed they had got mutation entry No.15452 made, to insert their names in the revenue record. He has admitted that the mutation entry was rejected by the Mamlatdar against which they had not preferred any appeal. He has admitted that their names have not been entered in the 7/12 record as co-
Page 63 of 139C/FA/558/2002 JUDGMENT sharers. He has deposed that he has read the banakhat and has admitted that his father had signed the banakhat on the basis of the decree passed in Special Civil Suit No.182/77. He has admitted that the sale deed in respect of the suit property was to be executed after title clearance and non-agricultural permission was obtained. He has admitted that after this process was over, within two years the sale deed was to be executed. The witness has voluntarily stated that the expenditure for such process was to be borne by the plaintiffs and that the plaintiffs were required to obtain their signatures on maps and N.A. application and were required to incur the expenditure in respect thereof. He has further stated that for the purpose of carrying out any such task, no registered notice had been issued to his father. He has denied the suggestion that Navnitbhai had prepared the N.A. application and map and had informed his father. He has admitted that his father had not asked for the expenditure in respect of N.A. and maps. He has admitted that his father has not taken any steps for preparing the maps and getting N.A. permission.
18. On the basis of the pleadings, the trial court had framed the following issues:-
(1) Whether the plaintiffs prove that the defendant has entered into an agreement to sell his land for Rs.60,00,000/- on 21.1.91 ?
(2) Whether the plaintiffs prove that the defendant has received Rs.5,00,002/- towards earnest money in respect of the suit agreement ?Page 64 of 139
C/FA/558/2002 JUDGMENT (3) Whether the plaintiffs are entitled to the reliefs of specific performance of contract and the possession of the suit land as claimed in para 9(a) and (b) of the plaint?
(4) Whether it is proved that this suit is barred under the provisions of Order II rule 2 of C.P.C.?
(5) Whether it is proved that this suit is barred by non-joinder of necessary parties?
(6) Whether it is proved that the suit agreement (banakhat) is void?
(7) Whether it is proved that this suit is barred by the law of limitation?
(8) What order and decree?
19. Since Issues No.1, 2 and 7 are decided in favour of the plaintiffs and the defendants have not filed any cross- objections, the findings of the trial court qua those issues have attained finality. Accordingly, in this appeal the court is concerned with issues No.3, 4, 5 and 6.
20. The trial court has dealt with issues No.3 and 6 together, namely, as to whether the plaintiffs are entitled to the reliefs of specific performance of contract and the possession of the suit land as claimed in paragraph 9(a) and (b) of the plaint and as to whether it is proved that the suit agreement (banakhat) is void and has held the suit agreement to be void as being in breach of section 63 of the Bombay Tenancy and Agricultural Page 65 of 139 C/FA/558/2002 JUDGMENT Lands Act, 1948 (hereinafter referred to as "the Tenancy Act") and has held that the plaintiffs are not entitled to a decree of specific performance as the plaintiff No.2 has not proved that he was ready and willing to perform his part of the suit agreement and the plaintiff No.1 had not remained present to prove the averments and allegations pleaded by him in the plaint and that the court had passed an order below the application of the plaintiff No.1 vide Exhibit 96 his evidence has been struck off, in view of which specific performance cannot be granted to the plaintiff No.1. Insofar as readiness and willingness of the plaintiff No.2 is concerned, the trial court has held that he has specifically admitted in his cross- examination that he has never gone with Rs.55,00,000/- to the defendant for execution of the sale deed for the suit land. He has not shown any piece of evidence regarding his willingness and readiness except the bare words in the agreement. According to the trial court, when the plaintiff No.1 has admitted on oath in his cross-examination that he has never gone with Rs.55,00,000/- then his evidence is the best proof and no further evidence is required on this point. Dealing with the decision of the Bombay High Court reported in AIR 1988 Bombay 82, the trial court observed that in that case the liability to obtain permission was on the shoulder of the defendant whereas in the present case the defendant had to sign the application wherever and whenever the plaintiffs ask for. The expenditure was to be borne by the plaintiffs whereas no evidence regarding the expenditure has been produced by the plaintiffs.
20.1 As regards claim for damages, the trial court has observed that only averments have been made in the plaint Page 66 of 139 C/FA/558/2002 JUDGMENT but the plaintiffs have failed to prove the same. According to the trial court, mere pleading does not become proof and that there must be some cogent and satisfactory evidence as far as compensation or damage is concerned.
20.2 Insofar as issue No.4 as to whether the suit is barred by the provisions of rule 2 of Order ll of the First Schedule to the Code, before the trial court on behalf of the plaintiffs it was contended that in the previous suit there were seven defendants whereas in the present case there is only one defendant, therefore the parties in both the suits are not the same; whereas on behalf of the defendant it was contended that the sub plot of Survey No.71 was the subject matter of the earlier suit; the title of the defendants was the same; when all the defendants are owners of the suit property and plaintiffs omit some of them and file a second suit, it cannot be said that the parties are different. The trial court has held that the parties to the present suit and RCS No.292/92 cannot be said to be different as they all have got equal shares in the suit property. The suit property in both the suits is the same. Both the suits are filed on the same banakhat of Bakrol Survey No.71. The plaintiffs have not produced evidence regarding leave to file the present suit. The plaintiffs could have prayed for specific performance in the suit for permanent injunction filed against the defendant and his sons; they could also have sought amendment of the first suit and sought specific performance. But they having failed to either claim the relief for specific performance at the time of instituting the suit or even thereafter by amending the plaint, they have relinquished the relief for specific performance of the agreement to sell. Insofar as the first suit not having been decided on merits is Page 67 of 139 C/FA/558/2002 JUDGMENT concerned, the trial court has held that if the first suit is decided on merits, the principle of res judicata would apply and that the principle of res judicata is different from Order Il rule 2 which would operate when a second suit is filed on the same cause of action irrespective of whether or not the first suit has been decided. The trial court was, accordingly, of the view that the permission of the court to file the second suit was a condition precedent and that the defendant had proved that the bar under Order ll rule 2 would apply.
20.3. Insofar as issue No.5, namely, whether the suit is bad by non-joinder of necessary parties, the trial court has held that the six sons of the defendants are necessary parties and it is impossible to adjudicate the dispute between the parties without joining them. The trial court has placed reliance upon various decisions cited by the learned advocate for the defendants on the proposition that if the karta had entered into an agreement without legal necessity the agreement is not binding on the other members of the family and cannot be enforced against them; as well as for the proposition that if the sale of coparcenary property is neither for legal necessity nor for the benefit of the estate, it would not be binding to the extent of the share of the vendor. The trial court was of the view that the suit land being ancestral property was coparcenary property and each coparcener had 1/7th share in the suit land and if they are not joined in the suit their rights would be seriously affected and there would be multiplicity of proceedings. Since the defendant had only 1/7th share in the suit land, the matter can be decided between the parties for 1/7th share of the defendant, but the plaintiffs have not prayed for any such relief in the plaint. The trial court, accordingly, Page 68 of 139 C/FA/558/2002 JUDGMENT held that the six sons of the defendant are necessary parties in the suit and without joining them it is impossible to adjudicate the dispute between the parties.
21. Keeping in mind the issues framed and the findings recorded by the trial court and the submissions advanced by the learned counsel for the respective parties, the following points arise for determination by this court:
1. Whether the trial court was justified in holding that the suit is barred under rule 2 of Order II of the First Schedule to the Code of Civil Procedure, 1908?
2. Whether the trial court was justified in holding that the suit is barred on account of non-joinder of necessary parties?
3. Whether the trial court was justified in holding that the suit agreement is void?
4. Whether the trial court was justified in holding that the plaintiff is not entitled to a decree for specific performance?
POINT NO.1
22. Before examining the issue on merits, it may be germane to refer to the principles enunciated by the Supreme Court and different High Court in the decisions cited by the learned counsel for the respective parties.
Page 69 of 139C/FA/558/2002 JUDGMENT 22.1 In Gurbux Singh v. Bhooralal, (supra) the
Supreme Court held that in order that a plea of a bar under Order 2 Rule 2(3) of the Civil Procedure Code should succeed, the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based ; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief,; (3) that being thus entitled to more than one relief, the plaintiff without leave obtained from the court omitted to sue for the relief for which the second suit had been filed.
22.2 In Sidramappa v. Rajashetty (supra), the Supreme Court held that if the cause of action on the basis of which the previous suit was brought, does not form the foundation of the subsequent suit and in the earlier suit the plaintiff could not have claimed the relief which he sought in the subsequent suit, the latter namely, the subsequent suit, will not be barred by the rule contained in Order 2 Rule 2 CPC.
22.3 In Deva Ram v. Ishwar Chand, (supra), the Supreme Court held that if a plaintiff is entitled to several reliefs against the defendant in respect of the same cause of action, he cannot split up the claim so as to omit one part of the claim and sue for the other. If the cause of action is the same, the plaintiff has to place all his claims before the court in one suit as Order 2 Rule 2 is based on the cardinal principle that the defendant should not be vexed twice for the same cause. The court observed that what the rule, therefore, requires is the unity of all claims based on the same cause of action in one suit. It does not contemplate unity of distinct and separate causes of action. If, therefore, the subsequent suit is Page 70 of 139 C/FA/558/2002 JUDGMENT based on a different cause of action, the rule will not operate as a bar.
22.4 In Alka Gupta v. Narender Kumar Gupta, (supra), the Supreme Court held that while considering whether a second suit by a party is barred by Order 2 Rule 2 of the Code, all that is required to be seen is whether the reliefs claimed in both suits arose from the same cause of action. The court is not expected to go into the merits of the claim and decide the validity of the second claim. The strength of the second case and the conduct of the plaintiff are not relevant for deciding whether the second suit is barred by Order 2 Rule 2 of the Code.
22.5 In Rathnavathi v. Kavita Ganashamdas, (supra), the Supreme Court was of the considered opinion that both the suits were founded on different causes of action and hence could be filed simultaneously. Even the ingredients to file a suit for permanent injunction are different than that of a suit for specific performance of the agreement. In case of the former, the plaintiff is required to make out the existence of prima facie case, balance of convenience and irreparable loss likely to be suffered by the plaintiff on facts with reference to the suit property as provided in section 38 of the Specific Relief Act, 1963 read with Order 39 rules 1 and 2 CPC. Whereas, in case of the latter, the plaintiff is required to plead and prove continuous readiness and willingness to perform his part of the agreement and to further prove that the defendant failed to perform his part of the agreement as contained in section 16 of the Act. One of the basic requirements for successfully invoking the plea of Order 2 Rule 2 CPC is that the defendant Page 71 of 139 C/FA/558/2002 JUDGMENT of the second suit must be able to show that the second suit was also in respect of the same cause of action as that on which the previous suit was based. The court further held that the cause of action in two suits being different, a suit for specific performance could not have been instituted on the basis of cause of action of the first suit and that merely because pleadings of both suits were similar to some extent, did not give any right to the defendants to raise the plea of bar contained in Order 2 Rule 2 CPC. It is the cause of action which is material to determine the applicability of bar under Order 2 Rule 2 CPC and not merely the pleadings. The court further held that it was not necessary for the plaintiff to obtain any leave from the court as provided in Order 2 Rule 2 CPC for filing the second suit. The court observed that since the plea of Order 2 Rule 2 CPC, if upheld, results in depriving the plaintiff to file the second suit, it is necessary for the court to carefully examine the entire factual matrix of both the suits, the cause of action on which the suits are founded, the reliefs claimed in both the suits and lastly, the legal provisions applicable for grant of reliefs in both the suits.
22.6 In Inbasagaran v. S. Natarajan (supra), the Supreme Court held thus:-
"26. In the light of the principles discussed and the law laid down by the Constitution Bench as also other decisions of this Court, we are of the firm view that if the two suits and the relief claimed therein are based on the same cause of action then only the subsequent suit will become barred under Order 2 Rule 2 CPC. However, when the precise cause of action upon which the previous suit for injunction was filed because of imminent threat from the side of the defendant of dispossession from the suit property then the subsequent suit for Page 72 of 139 C/FA/558/2002 JUDGMENT specific performance on the strength and on the basis of the sale agreement cannot be held to be the same cause of action. In the instant case, from the pleading of both the parties in the suits, particularly the cause of action as alleged by the plaintiff in the first suit for permanent injunction and the cause of action alleged in the suit for specific performance, it is clear that they are not the same and identical.
27. Besides the above, on reading of the plaint of the suit for injunction filed by the plaintiff, there is nothing to show that the plaintiff intentionally relinquished any portion of his claim for the reason that the suit was for only injunction because of the threat from the side of the defendant to dispossess him from the suit property. It was only after the defendant in his suit for injunction disclosed the transfer of the suit property by the Housing Board to the defendant and thereafter denial by the defendant in response to the legal notice by the plaintiff, the cause of action arose for filing the suit for specific performance."
As regards the decision of the Supreme Court in Virgo Industries (Eng.) (P) Ltd. (supra), the court, after referring to the facts of that case observed that in the case before it a suit for injunction was filed since there was threat given from the side of the defendant to dispossess him from the suit property and that the plaintiff did not allege that the defendant was threatening to alienate or transfer the property to a third party in order to frustrate the agreement. Thus, the court drew a distinction from the facts of the case in Virgo Industries (Eng.) (P) Ltd (supra) where the previous suits were for permanent injunction restraining the defendant from alienating, encumbering or dealing with the suit properties to any other third party other than the plaintiff; and such relief was claimed on the basis of two agreements of sale entered into by the plaintiffs and the defendant in respect of two parcels of land.
Page 73 of 139C/FA/558/2002 JUDGMENT 22.7 Insofar as the decisions of various High Courts as
regards the applicability of rule 2 of Order ll of the First Schedule to the Code are concerned, the same have been cited for the proposition that to attract the bar of Order ll rule 2, two conditions must be satisfied: firstly, that the previous suit and the subsequent suit must arise out of the same cause of action; and secondly that they must be between the same parties.
23. In the aforesaid backdrop, for the purpose of deciding as to whether the present suit is barred by Order II rule 2 of the First Schedule to the Code, the following questions would be required to be answered:
(a) Whether the causes of action in the previous suit and the subsequent suit are the same;
(b) Whether on the cause of action for filing the previous suit, the appellant would have been entitled to claim the relief of specific performance? In other words whether the appellant could have claimed the relief of specific performance of the agreement against the defendant in addition to his claim of permanent injunction in the previous suit?
24. Thus, it would be necessary to examine whether the cause of action in both the suits is the same, for which purpose it would be necessary to refer to cause of action stated in the plaints of both the suits. The cause of action in the previous suit namely Civil Suit No.292 of 1991 is contained in paragraph 9 of the plaint (Exhibit-99), which as translated Page 74 of 139 C/FA/558/2002 JUDGMENT into English, reads thus:
"The cause of action for this suit arose when the defendants with a view to defeat the rights of the plaintiffs for buying the suit land, attempted to sell the suit land to parties other than the plaintiffs and had produced an affidavit-in-reply before the District Registrar and Collector Kheda and the facts stated therein revealed that the defendants have the clear intention of transferring the suit land to someone other than the plaintiffs."
24.1 The cause of action in the present suit namely Special Civil Suit No.149 of 1993 is contained in paragraph 7 of the plaint, which as translated into English reads thus:-
"The cause of action for this suit arose when the plaintiffs issued notice dated 26.11.1992 by Registered A.D., and thereafter when the defendant gave his reply dated 2.12.1992 that he would not implement the agreement to sell and refused to perform his part of the obligations under the agreement to sell and refused to take steps to convert the land into non-agricultural land and did not execute registered sale deed in favour of the plaintiffs and refused to hand over possession of the land to the plaintiffs."
24.2 Thus, the cause of action for instituting the first suit is the intention of the defendant to transfer the suit land to third parties to defeat the rights of the plaintiffs under the suit agreement whereas the cause of action for instituting the present suit is the refusal of the defendant to perform his part of the obligations under the agreement to sell.
Page 75 of 139 C/FA/558/2002 JUDGMENT
24.3 The Supreme Court in Rathnavathi v. Kavita
Ganashamdas (supra), has held that since the plea of Order 2 rule 2 of the Code if upheld, results in depriving the plaintiff to file the second suit, it is necessary for the court to carefully examine the entire factual matrix of both the suits, the cause of action on which the suits are founded, the reliefs claimed in both the suits and lastly, the legal provisions applicable for grant of reliefs in both the suits. Therefore, as to whether the causes of action stated above are the same would be required to be considered in the background of the factual matrix of both the suits as prevailing prior to institution of the respective suits.
24.4 From the facts noted hereinabove, it is an admitted position that after the suit agreement (banakhat) came to be executed on 21.1.1991, the plaintiffs presented the same before the office of the Sub-Registrar for registration as an agreement to sell is compulsorily required to be registered under section 17 of the Registration Act, 1908. However, the defendant did not turn up, and in writing, refused to give his consent to such registration. Since the Sub-Registrar refused to execute the agreement to sell without the consent of the vendor, the plaintiffs filed an appeal before the District Registrar under section 73 of the Registration Act. In those proceedings, the defendant took a stand in the affidavit-in- reply that: the plaintiff No.2 was residing at a distance of more than eight kilometres from Bakrol and was not entitled to purchase such lands; the plaintiff No.2 being a non- agriculturist cannot purchase agricultural lands; in respect of partition of the ancestral property of their joint family, a decree Page 76 of 139 C/FA/558/2002 JUDGMENT has been passed in Special Civil Suit No.182/77 and accordingly the defendant has obtained such lands as ancestral property, there is an HUF of the defendant and his sons and partition has not taken place; and as per his information, in the context of the transaction recorded in the banakhat, his sons have objection and have issued notice to the plaintiffs and have sent him a copy thereof, which he has produced on record; and in these circumstances the legal position is such that if the banakhat is registered and his sons institute a suit for partition, then as per law he would be entitled to only 1/7th share, and hence, if the banakhat is registered without the consent of his sons, the same would stand automatically void; that in terms of the agreement to sell a registered agreement to sell was not required to be executed in favour of the plaintiffs but in favour of a proposed housing society, therefore, another agreement to sell would be required to be executed in that name and hence, the disputed agreement to sell is futile and stands cancelled and consequently, the question of registration of the banakhat does not arise.
24.5 In view of the above affidavit, the appellants instituted a suit for permanent injunction inter alia stating that as the defendant No.1 (the defendant herein) had refused to get the banakhat (suit agreement) registered, on 9.5.1991, the plaintiffs had presented the same for registration in the office of the Sub-registrar at Anand. However, the defendant No.1 did not give his consent and despite being called upon to remain present at the office of the Registrar for registration, did not remain present due to which the Registrar refused to register the deed, and hence, they had preferred an appeal before the Page 77 of 139 C/FA/558/2002 JUDGMENT District Registrar, Anand under section 73 of the Registration Act wherein, after considering the submissions of both the sides, the District Registrar by an order dated 1.10.1991 ordered that the banakhat be registered ex parte. In the said appeal, the defendant No.1 has submitted objections wherein he had stated facts contrary to the recitals contained in the banakhat.
24.6. Thus, on the day when the plaintiffs asked the defendant to get the agreement to sell registered, there was the first indication that the defendant did not have the intention of executing the sale deed. This fact is evident from the averments made by the plaintiffs before the District Registrar. On the day when the plaintiffs filed the suit for perpetual injunction, they were aware that the defendant was trying to frustrate the agreement to sell and the suit is itself based upon the fact that the defendant and his sons were trying to sell the property to third parties to frustrate the suit agreement. In this regard reference may be made to the contents of paragraphs 6, 7 and 8 of the plaint of the previous suit:
24.6.1 In paragraph 6, it has been averred that as the defendant had refused to get the banakhat registered, the plaintiff had submitted the banakhat for registration at the office of the Sub-Registrar on 9.5.1991 for registration.
However, as the defendant No.1 did not give his consent, he was called upon to remain present before the Sub-Registrar Anand for the purpose of giving his consent, but he had not remained present and as he did not remain present at the office of the Sub-Registrar on 15.5.1991, the registrar had Page 78 of 139 C/FA/558/2002 JUDGMENT refused to register the document against which the plaintiff filed an appeal being Appeal No.1/91 under section 73 of the Indian Registration Act before the District Registrar, Kheda wherein, keeping in view the submissions of the plaintiffs and the defendant No.1, by an order dated 1.10.1991, Shri P.P. Gadhvi, District Registrar, Kheda had allowed the appeal filed by the plaintiff No.1 and had passed an order to ex parte register the document, produced for registration being document No.1905 dated 9.5.1991. In terms of the order, the Sub-registrar, Anand had registered the banakhat on 8.10.1991.
24.6.2 In paragraph 7, it has been averred that in the above Appeal No.1/91 the defendant No.1 had given objections wherein contrary to the recitals contained in the banakhat it was stated that the property being joint family ancestral property, if the banakhat is registered or sale transaction is effected without the consent of his sons, the same would be void. By taking such false objections and defendants having developed mala fide intention, the defendant No.1 has got a false partition suit instituted through his son. By this suit, a declaration has been sought that the defendant has no right to create an encumbrance by transferring or mortgaging or entering into any agreement to sell and it is prayed that an order of perpetual injunction be passed that the defendants do not sell the suit land to anyone or create any encumbrance thereon. The defendants are making false attempts to frustrate the rights of the plaintiffs and are trying to harass the plaintiffs. Moreover, as the defendants are attempting to illegally transfer the suit land to others, it has become necessary to institute this suit for perpetual injunction Page 79 of 139 C/FA/558/2002 JUDGMENT restraining the defendants from in any manner selling, mortgaging or in any manner transferring the suit land.
24.6.3 In paragraph 12, the plaintiffs have reserved their right to institute a suit for specific performance against the defendant No.1 on the basis of the agreement to sell, after issuing notice and have requested that the court pass appropriate orders in this regard.
24.7 From the averments made in the plaint of the previous suit, it is evident that the same had been instituted as the defendant together with his sons was trying to frustrate the suit agreement and sell the suit land to third parties which had given rise to a cause of action for the plaintiffs to institute the said suit for permanent injunction against the defendant and his sons restraining them from in any manner alienating the property. The question that arises for consideration is whether the cause of action for instituting the previous suit and the subsequent suit is identical.
24.8 At this juncture, it may be germane to refer to the decision of the Supreme Court in the case of Virgo Industries (supra). Since strong reliance has been placed by the learned counsel for the respondents to point out the distinction on facts between this decisions and the decisions of the Supreme Court in Sucha Singh v. Baldev Raj Walia (supra) and Rathnavathi v. Kavita Ganashamdas (supra), etc. it may be necessary to refer to the same in some detail.
24.9 In Virgo Industries (supra), the plaintiff had instituted two suits before the Madras High Court seeking a Page 80 of 139 C/FA/558/2002 JUDGMENT decree of permanent injunction restraining the defendant from alienating, encumbering or dealing with the plaint scheduled properties to any third party other than the plaintiff. Such relief was claimed on the basis of two agreements of sale entered into between the plaintiff and the defendant in respect of two different parcels of land. In each of the suits, the plaintiff had stated that under the agreements of sale different amounts were paid to the defendants, yet, on the pretext that restrictions on alienation of the suit land were likely to be issued by the Central Excise Department on account of pending revenue demands, the defendants were attempting to frustrate the agreements in question. In the suits filed by the plaintiff, it was also stated that as the period of six months fixed for execution of the sale deeds under the agreements in question was not yet over, the plaintiff is not claiming specific performance of the agreements and accordingly, sought leave of the court to omit the claim of relief of specific performance with liberty to sue for the said relief at a later point of time. These two suits were filed in August and September, 2005. Thereafter, in May 2007, the plaintiff filed two suits in the Court of the District Judge, Thiruvallur, seeking a decree against the defendant for execution and registration of the sale deeds in respect of the same property and for delivery of possession thereof to the plaintiff. In the aforesaid latter suits, it was mentioned by the plaintiff that in respect of the same suit property it had earlier filed suit numbers CSs No. 831 and 833 of 2005 seeking the relief of permanent injunction. As the time for performance of the agreements of sale had not elapsed when CSs No. 831 and 833 of 2005 were instituted and the plaintiff was "under the bona fide belief that the defendants would perform the agreement" the relief of specific Page 81 of 139 C/FA/558/2002 JUDGMENT performance was not claimed in the aforesaid suits. However, as in spite of a legal notice issued to the defendants on 24.2.2006, the sale deeds had not been executed by the defendant the latter suits i.e. OSs No. 202 and 203 were instituted.
24.9.1 Thereafter, the defendant in both the suits moved the Madras High Court for striking off the plaints in OSs No. 202 and 203 of 2007 on the ground of the provisions contained in Order ll rule 2 of the Code is a bar to the maintainability of both the suits. The High Court held that the suits were not barred by the provisions of Order ll rule 2 of the Code. The order of the Madras High Court was subject matter of challenge before the Supreme Court at the instance of the defendant.
24.9.2 The Supreme Court observed that the cardinal requirement for application of the provisions contained in Order ll rule 2 (2) and (3) is that the cause of action in the later suit must be the same as in the first suit. It was observed that in the facts of the said case though leave to sue for the relief of specific performance at a later stage was claimed by the plaintiff in the previous suits, admittedly no such leave was granted by the court. The question that arose for consideration was whether the cause of action for the first and second set of suits is one and the same. In the plaint of the first suits, there were clear averments to the effect that after execution of the agreements of sale dated 27.7.2005, the plaintiff received a letter dated 1.8.2005 from the defendant conveying the information that the Central Excise Department was contemplating issuance of a notice restraining alienation of the Page 82 of 139 C/FA/558/2002 JUDGMENT property. The advance amounts paid by the plaintiff to the defendant by cheques were also returned. Doubting the claim of the defendant regarding the proceedings initiated by the Central Excise Department, the plaintiff averred that the defendant was finding an excuse to cancel the sale agreement and sell the property to some other third party. It was further stated that in this background the plaintiff submits that the defendant is attempting to frustrate the agreement entered into between the parties.
24.9.3 The Supreme Court held that the averments made by the plaintiff in the previous suit left no room for doubt that on the dates when the previous suits were instituted, the plaintiff itself had claimed that facts and events have occurred which entitled it to contend that the defendant had no intention to honour the agreements dated 27.7.2005. In the said situation, it was open for the plaintiff to incorporate the relief for specific performance along with the relief of permanent injunction that formed the subject matter of the suits in question. The foundation for the relief of permanent injunction claimed in the two suits furnished a complete cause of action to the plaintiff in the earlier suits to also sue for the relief of specific performance. Yet, the said relief was omitted and no leave in this regard was obtained or granted by the court.
24.9.4 Insofar as the contention of the plaintiff that the relief of specific performance was premature inasmuch as the time for execution of the sale documents by the defendant in terms of the agreement of sale had not elapsed is concerned, the Supreme Court held that there is no provision in the Page 83 of 139 C/FA/558/2002 JUDGMENT Specific Relief Act, 1963 requiring a plaintiff claiming the relief of specific performance to wait for the expiry of the due date for performance of the agreement in a situation where the defendant made his intentions clear by his overt acts.
24.10 The facts of the present case may be examined in the light of the principles propounded in the above decision wherein also the first set of suits were suits for permanent injunction to restrain the defendant from alienating the suit lands and the second set of suits were seeking specific performance of the agreements of sale. In the facts of the said case, immediately, that is a few days after the agreements of sale were executed the defendant, the plaintiff received a letter from the defendant conveying the information that the Central Excise Department was contemplating issuance of a notice restraining alienation of the property. The advance amounts paid by the plaintiff to the defendant by cheques were also returned. Doubting the claim of the defendant regarding the proceedings initiated by the Central Excise Department, the plaintiff averred that the defendant was finding an excuse to cancel the sale agreement and sell the property to some other third party. It was further stated that in this background the plaintiff submits that the defendant is attempting to frustrate the agreement entered into between the parties.
24.11 In the facts of the present case, the plaintiffs called upon the defendant to register the suit agreement but as he did not give his consent, the plaintiffs produced the same for registration in the office of the Sub-Registrar. However, despite being called upon to do so the defendant did not remain Page 84 of 139 C/FA/558/2002 JUDGMENT present to give his consent for registering the document, and hence, the Sub-Registrar did not register the document, against which the plaintiff No.1 preferred an appeal before the District Registrar before whom the defendant took a stand that as the property in question was ancestral property, his sons had an equal share in the same and if the banakhat is registered or any sale deed is executed without the consent of his sons, the same would be void. The defendant had further stated that it was agreed that the banakhat would be executed in favour of a proposed housing society. Considering the stand taken by the defendant, it is clear that he had not repudiated the agreement to sell or his obligations there under, but had taken a stand that as his sons have objected to the registration of the banakhat, the same cannot be registered without their consent; and further that the stage for execution of the registered banakhat has not arisen. Thus, at this stage there was no clear refusal of the defendant to execute the sale deed. Therefore, though a situation had not arisen for the plaintiffs to contend that the defendant had no intention of honouring the suit agreement, nonetheless, the plaintiffs apprehended that the defendant was trying to frustrate the suit agreement by taking up such defences. Since the rights of the plaintiffs under the suit agreement were likely to be jointly defeated by the defendant and his sons, the plaintiffs instituted the suit for permanent injunction against the defendant as well as all his six sons to protect the suit property from being alienated. The plaintiffs also reserved their right to institute a separate suit for specific performance of the suit agreement after issuance of notice to the defendant. Soon thereafter, on 26.11.1992 the plaintiffs issued a notice to the defendant inter alia stating that on the basis of the banakhat the defendant was required to Page 85 of 139 C/FA/558/2002 JUDGMENT convert the land into non-agricultural land and get an entry made in the revenue record and get the title cleared and within two years thereafter, the plaintiffs were required to pay the balance consideration and the defendant was required to execute the sale deed in favour of the plaintiffs or the plaintiffs' nominee. At present on account of escalation in the prices of land, the defendant has developed mala fide intention and has created false disputes through his sons and has not taken any steps to get the suit land converted for non agricultural purposes in terms of the conditions of the banakhat and is not executing a registered sale deed, and hence, necessity has arisen to issue the notice. Accordingly, by the suit notice the defendant was warned for the last time to take steps to get the land converted into non-agricultural land and obtain the balance consideration from the plaintiffs within one month and execute a registered sale deed in favour of the plaintiffs and in case of failure to do so, the plaintiffs would take action in accordance with law to get the land converted for the purpose of non-agriculture as per the banakhat and get a registered sale deed executed and for all damages sustained by the plaintiffs seek specific performance against the defendant.
24.12 Since the defendant refused to perform his part of the obligations under the suit agreement, the plaintiffs instituted the subsequent suit seeking specific performance of the suit agreement.
24.13 Viewed in the light of the above facts, this court is of the view that at the stage when the first suit was instituted by the plaintiffs, there was no clear repudiation of the suit Page 86 of 139 C/FA/558/2002 JUDGMENT agreement by the defendant as he had not stated in clear terms that he would not be in a position to honour the agreement but had stated that he could not get the suit agreement registered or a sale deed executed without the consent of his sons. Moreover, he did not return the amount paid to him by way of earnest money at the time of execution of the agreement to sell. Therefore, the possibility of the defendant being able to honour the suit agreement with the consent of his sons could not be ruled out. This can also be culled out from the cross-examination of the defendant's witness Naginbhai Ambalal Patel, wherein he has admitted that he had signed as a witness to the suit agreement and has voluntarily stated that in terms of page-6 (sic. para-6) of the banakhat that an agreement to sell was to be executed in favour of a proposed housing society and the terms were to be decided in a manner so as not to prejudice their rights, and hence, under the impression that a housing society is to be formed, he had signed as a witness. From the cross- examination of the defendant's witness, it has further been established that the defendant Ambalal Kalidas enjoyed a very good reputation in Anand and was a man of high integrity. In these circumstances, if the defendant was not in a position to honour the suit agreement for the reason that his sons had an equal share in the same, in the first place he would not have executed the suit agreement; secondly if he had executed the suit agreement under the impression that his sons' would honour his wishes but his sons did not give their consent, in that case once he had found that he was not in a position to honour the suit agreement, he being a man of high integrity, would have returned the amount of Rs. 5,00,000/- received by him at the time of execution of the suit agreement. Therefore, Page 87 of 139 C/FA/558/2002 JUDGMENT at the stage when the first suit was instituted, the right of the plaintiffs to sue for specific performance of the suit agreement had not yet crystallised as the defendant had not resiled from the suit agreement. In the opinion of this court, therefore, on the cause of action for instituting the previous suit the plaintiffs did not have cause of action to institute a suit for specific performance against the defendant. In terms of the cause of action stated in the plaint of the present suit, it is only when the plaintiffs issued the notice dated 26.11.1991 and the defendant gave his reply dated 2.12.1992 that he would not implement the agreement to sell and refused to perform his part of the obligations under the agreement to sell and refused to take steps to convert the land into non-agricultural land and did not execute registered sale deed in favour of the plaintiffs and refused to hand over possession of the land to the plaintiffs, that the cause of action for instituting the present suit arose.
24.14 As held by the Supreme Court in Sidramappa v. Rajashetty (supra), cause of action is a cause of action which gives occasion for and forms the foundation of the suit. If that cause of action enables a person to ask for a larger and wider relief than that to which he limits his claim, he cannot afterwards ask to recover the balance by independent proceedings. In the facts of the present case, the cause of action on the basis of which the previous suit was brought does not form the foundation of the present suit. Assuming that the cause of action mentioned in the earlier suit afforded a basis for a valid claim, it did not enable the plaintiff to ask for any relief other than those prayed for in that suit. In that suit, the plaintiffs could not have sought the relief which they seek Page 88 of 139 C/FA/558/2002 JUDGMENT in the present suit.
25. On behalf of the plaintiffs, it has been contended that for Order ll rule 2 of the First Schedule to the Code to be applicable, the former suit and the subsequent suit must be between the same parties. In support of such submission, reliance has been placed upon a long line of decisions of various High Courts including this High Court, which lay down that for the purpose of attracting the bar under Order II rule 2 of the First Schedule to the Code, not only should the cause of action be the same in the previous suit and the subsequent suit, but even the parties should be the same.
25.1 In the facts of the present case, admittedly the parties to both the suits were not the same as the previous suit was instituted against seven persons, namely, the defendant and his six sons, whereas the present suit is instituted against the defendant alone. Therefore, in the light of the law laid down in the decisions cited by the learned counsel for the appellants as referred to earlier, the bar under Order II rule 2 of the First Schedule to the Code would not be attracted as the parties in the former suit and subsequent suit are not the same. However, on behalf of the respondents it has been contended that the cause of action in both the suits being the same, the subsequent suit against the defendant No.1 would be barred as he was also a defendant in the earlier suit.
25.2. In the context of the above submission, another question that would be required to be answered for the purpose of applying the bar contained in Order ll rule 2 of the First Schedule to the Code is that assuming that the cause of Page 89 of 139 C/FA/558/2002 JUDGMENT action for instituting both the suits is the same, whether the plaintiffs could have claimed the relief of specific performance of the agreement against the defendant in addition to their claim of permanent injunction in the previous suit.
25.3. On behalf of the defendant, it has been contended that in view of the provisions of Order I rule 5 of the First Schedule to the Code which provides that it shall not be necessary that every defendant shall be interested as to all the relief claimed in any suit against him, it is possible to file a suit claiming different reliefs against different defendants.
25.3.1 In support of such submissions, reliance was placed upon the decision of the Supreme Court in the case of Sumtibai v. Paras Finance Co. Regd. Partnership Firm, AIR 2007 SC 3166, wherein the court held thus:
"9. Learned counsel for the respondent relied on a three-Judge Bench decision of this Court in Kasturi v. Iyyamperumal, (2005) 6 SCC 733. He has submitted that in this case it has been held that in a suit for specific performance of a contract for sale of property a stranger or a third party to the contract cannot be added as defendant in the suit. In our opinion, the aforesaid decision is clearly distinguishable. In our opinion, the aforesaid decision can only be understood to mean that a third party cannot be impleaded in a suit for specific performance if he has no semblance of title in the property in dispute. Obviously, a busybody or interloper with no semblance of title cannot be impleaded in such a suit. That would unnecessarily protract or obstruct the proceedings in the suit. However, the aforesaid decision will have no application where a third party shows some semblance of title or interest in the property in dispute. In the present case, the registered sale deed dated 12- 8-1960 by which the property was purchased shows that the shop in dispute was sold in favour of not only Kapoor Page 90 of 139 C/FA/558/2002 JUDGMENT Chand, but also his sons. Thus prima facie it appears that the purchaser of the property in dispute was not only Kapoor Chand but also his sons. Hence, it cannot be said that the sons of Kapoor Chand have no semblance of title and are mere busybodies or interlopers."
25.3.2 Reliance was placed upon the decision of the Punjab and Haryana High Court in Atul Sharma and another v, Gurinder Singh and others, AIR 1984 P&H 365, wherein the court held that in a suit for specific performance of contract to sell coparcenary property by A to B, application by coparcener of A to be impleaded as parties on the ground that A could not sell the property on the ground that the sale was not for necessity or for the benefit of the family is maintainable. It cannot be said that a coparcener by getting himself impleaded as a party seeks only a decision on his or the vendor title only. He seeks to oppose the right of the plaintiff to enforce the agreement to sell against a coparcenary property and as such his prayer cannot be denied.
25.3.3 Reliance was also placed upon the decision of this court in the case of Bai Devkabai and others v. Shah Shamji Mulji, AIR 1971 Gujarat 256, for the proposition that the general rule is that persons other than the parties to the contract, that is, strangers, are not necessary parties and specific performance cannot be claimed against such persons. Law recognises exceptions to it where impleading of strangers will avoid multiplicity of proceedings and where interest of persons actually in possession of the property might be affected.
25.3.4 The decision of the Andhra Pradesh High Court in
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the case of Kalisetti Subbarayudu and others v. Pagadala Balramayy, AIR 1955 Andhra 194, was referred wherein it has been held that, where all the plaintiffs in the previous suit were entitled to file the previous suit being jointly interested against the defendant within the meaning of Order II, rule 3 and could not have contended that Order II rule 2 would not be a bar to a subsequent suit by them, the fact that only one of the plaintiffs in the previous suit filed the subsequent suit would not in law make any difference. The court held that Order II rule 2 is aimed against multiplicity of suits in respect of the same cause of action. The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment. If the evidence to support the two claims is different, then the causes of action are also different. The cause of action in the two suits may be considered to be the same if in substance they are identical.
25.3.5 It was urged on behalf of the defendant that if there is any semblance of title of the defendant's sons in the suit property, they could have been joined in a suit for specific performance and hence, such relief could have been prayed for in the first suit.
25.4 On the other hand Mr. A. S. Vakil, learned advocate for the plaintiffs, submitted that the test would be whether on the cause of action pleaded in the injunction suit, the plaintiff is entitled to sue for specific performance.
25.4.1 In support of such submission strong reliance was placed upon the decision of a learned Single Judge of this court in the case of Dhabubai we/o Nathubhai Dudhabhai v.
Page 92 of 139C/FA/558/2002 JUDGMENT Bai Ratan we/o Hirabhai Dahyabhai, 1967 GLR 677, wherein the court held thus:
"5. Xxxxx Before we actually consider the effect of the words "in respect of the cause of action appearing in clause (1) of R.2 O.2 of the Civil Procedure Code which relates to joinder of causes of action. Order 2 Rule 3(1) provides that "Save as otherwise provided, a plaintiff may unite in the same suit several cause of action, against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit." This clause permits the plaintiff to unite in the same suit several causes of action provided they are against the same defendant, or the same defendants jointly. It is, thus, a permissive provision and that way it leaves him with an option to join in the same suit different causes of action,provided they are against the same defendant, or the same defendants jointly. Now the defendants in both the suits are different while in the former suit, all five of them, in the present suit only two defendants. Even if therefore, the plaintiff desired to join both the causes of action, he could not have been able to do so, since defendants or the persons liable for the claims differ, and it would not matter, if two of them viz. These respondents were the same in the earlier suit. The suit would be defective on that ground. Therefore, when the bar arising out of R.2 of O. 2 of the Civil Procedure Code is to be considered, it is also to be seen whether there would have arisen any defect in the suit by reason of uniting in the same suit several causes of action against different defendants, and if so, as I think, it would, the bar under O. 2, R. 2 cannot arise.
6. Xxxxx The term "cause of action" has nowhere been defined in the Civil Procedure Code and that term has been explained in various decisions of different Courts. In Mohammad Khalil Khan v. Mahbub Ali Mian, A.I.R. 1949 Privy Council 78, it has been explained to mean as every fact which will be necessary for the plaintiff to prove, if traversed in order to support his right to the judgment. If the evidence to support the two claims is different, then the causes of action are also Page 93 of 139 C/FA/558/2002 JUDGMENT different. The facts of the case were than on 14th September 1928, Mohammad Khalil Khan and Fida Ali Khan and anther filed a suit of their own viz., Suit No.8 of 1928 in respect of certain property called "Oudh property" against Abadi Begam (defendant No.1), Mushtaq Ahmad (defendant No.2), Abdul Latif (defendant No.3) and Mahbub brothers (defendants Nos. 4 to 7) and one Gulam Jelani. The plaintiffs had confined their claim to that property alone and had not included in their claim the other property called "Shahjahanpur property", although that property also had belonged to Rani Barkatunissa, and the Collector of Shahjahanpur had already decided against their claim on 20th June 1918. In respect of Shahjahanpur property another suit was filed and the question arose as to whether the suit in respect of that property was barred by the provisions contained in O. 2 R. 2 of the Civil Procedure Code. While considering that part of the argument, Their Lordships discussed the meaning of the expression "cause of action" as explained in various leading cases and then observed that the plaintiffs cause of action to recover the properties consisted of those facts which would entitle them to establish their title to the properties and those facts were the same with respect of both properties, those being, that Rani Barkatunissa was the owner of the properties; that she died on 13th February 1937; that she was a Sunni by faith and that they were her heirs under the Muhammadan Law. If the plaintiffs proved those facts, they would be establishing their right to both the properties. It was that way that they found that the cause of action in respect of both the properties was one in identity and since the plaintiffs had not included the Shahjahanpur property in the earlier suit, the subsequent suit was barred by the provisions contained in O. 2 R. 2. At one place Their Lordships happened to observed that what would constitute the cause of action in a suit must always depend on the particular facts of, the case, and one of the tests that is applied, where the question whether the cause of action in two suits is the same or not, is whether the same evidence would support the claim in both suits; and if the evidence required to support the claim is different, then the causes of action are also different. In view of this decision, it is unnecessary to refer to various other cases wherein this very expression "cause of action" has been explained. However, I would refer to one or two decisions where this Page 94 of 139 C/FA/558/2002 JUDGMENT very term has been explained. In Krishanaji Ramchandra v. Ragunath Shanker, 55 Bom. L.R. 741, the words "cause of action" used on O. 2, R. 2(1) of the Code of Civil Procedure are explained as meaning "the particular cause of action" and where there are different causes of action, O. 2, R. 2 of the Code will not apply. It is only where the causes of action are the same, the bar imposed in the said provision will apply. In Sher Ali Mridha v. Torap Ali, A.I.R. 1942 Calcutta 407, the expression 'cause of action" has been explained as really meaning the fact or combination of facts which give rise to a right of action, the right of suing before a Judge for realisation of the relief arising out of the infringement of the right. In other words, it means the facts that give rise to a right of an action and facts which require that right to be exercised arising out of the infringement of the right. Applying these tests in the case before us, the plaintiff is required to establish his right to action and that right to action arises against these two defendants under a rent-note Ex. 33 dated 27-6-53. He has further to establish that these two defendants failed to pay the rent for the property given to them under the rent-note. Similarly, in the previous suit, the plaintiff had to establish his right to action and that was against not these two respondents only, but against them and three other minor sons of respondent No.1. That right was under a different rent-note of 24-12-51 and thus, the genesis of the right to action was not the same as was as Mohammad Khalil Khans case referred to above, but was quit distinct. For establishing the two causes of action, the plaintiff would have to establish different facts on the strength of different evidence as they were different rent- notes, executed by different persons though no doubt in respect of the same property. The mere fact that two of the parties to the subsequent rent-note were also parties to the earlier rent-note of 1951, or that the property and the rent for the property was the same, cannot make the right to action in any way the same or identical, so as to justify the plaintiff to join both the causes of action in the earlier suit, and that his not having done so, the penalty under O. 2, R. 2 of the Civil Procedure Code would visit his claim in the suit.
7. Xxx xxx xxxx
8. My attention was invited to by Mr. Karlekar to a Page 95 of 139 C/FA/558/2002 JUDGMENT decision in a case of Sonu Khushal Khadake v. Bohinibai Krishna, 18 Bom. L.R. 45. In this case the property in dispute belonged to one Tukaram who died in 1901 leaving behind him his wife Bhagirathi and two daughters. On 4th January 1906 Bhagirathi sold a portion of Tukarams property to one Dagdu, and on the 12th idem sold other part of the property to one Zagdu. Zagdu and Ukhardu were brothers and they were joint in estate. Bhagirathi died on the 5th August 1909. On 26th April 1910, Bahinibai daughter of Bhagirathi filed a suit (No.270 of 1910) against Zagdu and one Tapi to recover possession of the property sold to Zagdu. In the meantime Bahinibai and her sister passed a deed of gut of all the three survey numbers to one Tukaram, son of Dagdu. The two sisters presented a purshis to the Court on the 24th September 1910 whereby the suit came to be dismissed on the 7th October 1910. On 7th October 1910 Bahinibai sold those very three survey numbers to one Sonu and on the strength of that sale deed, Sonu filed a suit on the 7th December 1912 to recover possession of those three survey numbers. The Court of first instance dismissed the suit on the preliminary ground that it was barred by the provisions of O. 2 R. 2 of the Civil Procedure Code. On appeal that decision was confirmed by the District Judge. Both the Courts held that as Bahini omitted to sue in respect of two survey numbers in 1910, the plaintiff, who derived his right through her, was barred by O. 2 R. 2 of the Civil Procedure Code, from preferring his claim to those numbers in the present suit. The High Court, however, held that inasmuch as the cause of action in the two suits were different, the two sets of acts which required to be proved in both the suits in order to enable the plaintiff to succeed being different sets of facts, the suit was not barred under O. 2 R. 2 of the Civil Procedure Code. Their Lordships in the course of their judgment explained the term "cause of action" by reference to various authorities and adopted the principle that one great criterion for finding out as to whether there existed the same cause of action in both the suits was that the same evidence will be required to maintain both the actions. Hayward J, in a concurrent judgment has made certain observations which appear to be quite useful and have some bearing in the present case. After observing that the cause of action in the suit of 1910 consisted of the title arising on the death of Bhagirathi and the alleged invalidity of the sale-deed relating to Page 96 of 139 C/FA/558/2002 JUDGMENT survey No.324 in favour of Zagdu and the Cause of action in the suit of 1912 consisted of the title arising on the death of Bhagirathi and the alleged invalidity not for present purposes of the sale-deed relating to survey No.324 in favour of Zagdu, but of another sale-deed relating to other survey Nos.403 and 404 in favour of another, Dagdu, he has then observed that "no doubt those two separate cause of action might have been joined together in one suit, as raising the common question of title arising out of the death of Bhagirathi and affecting to some extent each of the two different defendants, under the permissive provisions of O. 1 R. 3 of the Schedule of the Civil Procedure Code as in the case of Nundo Kumar Nasker v. Banomali Gavan ((1902) I.L.R. 29 Calcutta 817), and Umabai v. Vithal ( (1908) 11 Bom. L.R. 34). But that is quite another thing from holding that those two separate cause of action ought to have been joined together in one suit agianst the two different defendants. The two causes of action were clearly separate because the invalidity of the sale-deed in favur of Zagdu could not have been established solely by proof of the invalidity of sale-deed in favour of Dagdu. Nor would proof of the invalidity of the sale-deed in favour of Zagdu alone have sufficed to settle the invalidity of the sale-deed in favour of Dagdu. Moreover the two causes of action affected different defendants. There was, therefore, no legal necessity to joint them in one suit, as neither claims under separate causes of action nor claims affecting different defendants are contemplated by the peremptory provisions of O II, R. 2 of the Schedule of the Civil Procedure Code. It would not have mattered - even if the two separate causes of action had jointly affected the different defendants and had not involved a several liability of each of the two different defendants. For they would still have been beyond the contemplation of the peremptory provisions of O. II, R. 2, though within the permissive provisions of O. II R. 3, of the Schedule to the Civil Procedure Code. Then he observed that it seems to him essential for the proper determination of those somewhat difficult questions of non-joinder and mis- joinder that not only should the causes of action in each case be exactly comprehended but that a clear distinction should be, maintained between the permissive nature of the provisions of O. I, R. 3, and O. II, R. 3, and the peremptory nature of the provisions of O. II, R. 2, of the 1st Schedule to the Civil Procedure Code. I have Page 97 of 139 C/FA/558/2002 JUDGMENT already referred to the provision contained in O. 2, R. 3, which permits the plaintiff to join different causes of action provided, they are against the same defendant or defendants. Even that, this plaintiff could not have done as the persons liable under two different rent-notes were different and not the same, and the suit would have been bad on ground of multifariousness and when that test is applied, it is too much to say, that his having not included the claim of rent in the previous suit would be Hit by provisions contained in O.2 R. 2 of the Civil Procedure Code. What has weighed with the Courts below is that the claim is similar viz. of rent, and that again in respect of the same property and further as the defendants in the suit were defendants in earlier suit with three other minor sons of defendant No.1 living in the same house and forming at it were one family. Now two things are evident. One is that even though defendant No.1 as father of the minor sons executed the previous rent-note of 1951, the minors would be independently liable for the claim of rent and they were no longer made liable in a subsequent rent-note of 1953. The liability in the former case was of five persons so far as plaintiff is concerned, and was of only two defendants in the subsequent suit. They arise from different rent-note and claims are also for different period. Not only therefore the plaintiff ought to have included the subsequent claim in the former suit, even if he desired to include, he could not have done so under even the permissive provisions contained in O.2, R. 3 of the Civil Procedure Code. In my opinion, therefore, the cause of action in the subsequent suit though may be of a similar character, was not at all the same or identical with the previous one, and further since that would be against different parties, the provisions of O. 2, R. 2 are not attracted and there is no bar to the present claim in the suit."
25.5 As regards whether the plaintiffs could have sought the relief for specific performance of the suit agreement in the former suit, this court is of the view that since there was no privity of contract between the plaintiffs and the defendants No.2 to 7 in the previous suit, such relief could not have been claimed against them, more so, as they were claiming a title Page 98 of 139 C/FA/558/2002 JUDGMENT adverse to that of the defendant. In the opinion of this court, the evidence that would be led in the two suits would be different, inasmuch as in the previous suit the plaintiffs would be required to prove that in the light of the suit agreement, the defendant and his sons had no right to alienate the suit property and further establish that they had a prima facie case, the balance of convenience was in their favour and that they would suffer from irreparable injury in the event permanent injunction was not granted in their favour, whereas in the suit for specific performance the plaintiffs would be required to prove that they were always ready and willing to perform their part of the obligations under the suit agreement and that the defendant failed to perform his part of the suit agreement entitling the plaintiffs to a decree of specific performance. Therefore, though in view of the provisions of Order 1 rule 5 of the First Schedule to the Code it may have been permissible to claim different reliefs against different defendants, it would be beyond the peremptory provisions of Order ll rule 2 and would not act as a bar against the plaintiffs instituting a different suit claiming relief of specific performance only against the defendant against whom alone they had a right to claim such relief. In the opinion of this court, though there may be some similarity in the causes of action in the former and the present suit, the same are not identical and further since the causes of action are against different parties, the provisions of Order II rule 3 are not attracted. Point No.1 stands answered accordingly.
26. Another question that arises in the context of the submissions advanced by the learned advocate for the appellants is whether in view of the interim order passed in the Page 99 of 139 C/FA/558/2002 JUDGMENT previous suit, it can be inferred that the trial court has granted permission to institute the subsequent suit under Order II rule 2 of the First Schedule to the Code.
26.1 Sub-rule (3) of rule (2) of Order of the First Schedule to the Code provides that a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the court, to sue for all such reliefs, he shall not afterwards sue for any such relief so omitted. From the language employed in the provision, it is clear that the leave of the court to sue for relief omitted can be sought at any time during the pendency of the former suit, but such leave must be obtained prior to the date of institution of the subsequent suit because when permission is required to sue, it has to precede the institution of the suit. The contention advanced on behalf of the appellants that such permission can be inferred from the interim order directing the plaintiffs to file an application for consolidating both the suits, does not merit acceptance inasmuch as, such permission should have been obtained prior to instituting the second suit and not at any point of time thereafter.
POINT NO.2
27. Whether the trial court was justified in holding that the suit is bad on account of non-joinder of necessary parties?
27.1 In the context of this issue, it may be apposite to refer to the decision of the Supreme Court in Kasturi v. Iyyamperumal (supra) wherein the respondents No.1 and 4 to 11 therein who were admittedly not parties to the contract and Page 100 of 139 C/FA/558/2002 JUDGMENT setting up a claim of independent title and possession over the contracted property, filed an application to get themselves added in the suit as defendants. The trial court allowed the application on the ground that as the said respondents were claiming title and possession of the contracted property, they must be held to have a direct interest in the subject matter of the suit, and therefore, entitled to be added as party- defendants in the suit as their presence would be necessary to decide the controversies raised in the suit. The High Court in revision confirmed the said order and accordingly a special leave petition was filed before the Supreme Court against the order of the High Court at the instance of the appellant. The Supreme Court held that two tests are required to be satisfied to determine the question who is a necessary party. For deciding the question who is a proper party in a suit for specific performance, the guiding principle is that the presence of such a party is necessary to adjudicate the controversies involved in the suit for specific performance of the contract for sale. Thus, the question is to be decided keeping in mind the scope of the suit. The question that is to be decided in a suit for specific performance of the contract for sale is to the enforceability of the contract entered into between the parties to the contract. In the facts of the said case the court held that if the persons seeking addition were added in such a suit, the scope of the suit for specific performance would be enlarged and it would be practically converted into a suit for title.
27.2 In the facts of the present case, since the plaintiffs apprehended that the suit property may be disposed of to some third party, they instituted a suit for injunction for restraining all the defendants from in any manner Page 101 of 139 C/FA/558/2002 JUDGMENT alienating/transferring the suit land with a view to protect their rights under the suit agreement. But insofar as institution of the suit for specific performance of the suit agreement is concerned, the plaintiffs had no privity of contract with the sons of the defendant and consequently had no right to sue them for specific performance, in these circumstances they did not deem it fit to implead them as defendants in the suit, more so, considering the fact that the sons of the defendant claimed a right adverse to the defendant and not under him or through him.
27.3 In Sumtibai v. Paras Finance Co. Regd.
Partnership Firm (supra), on behalf of the respondent reliance was placed upon the earlier decision of the Supreme Court in the case of Kasturi v. lyyamperumal (supra) to submit that in that case it has been held that in a suit for specific performance of a contract for sale of property a stranger or a third party to the contract cannot be added as defendant in the suit. The Supreme Court was of the opinion that the said decision was clearly distinguishable and held that the decision in the case of Kasturi v. Iyyamperumal can only be understood to mean that a third party cannot be impleaded in a suit for specific performance if he has no semblance of title in the property in dispute. Obviously, a busybody or interloper with no semblance of title cannot be impleaded in such a suit. That would unnecessarily protract or obstruct the proceedings in the suit. However, the said decision will have no application where a third party shows some semblance of title or interest in the property in dispute. In the facts of that case, the Supreme Court observed that the registered sale deed dated 12.8.1960 by which the property was purchased showed that the shop in Page 102 of 139 C/FA/558/2002 JUDGMENT dispute was sold in favour of not only Kapoor Chand, but also his sons. Thus prime facie it appeared that the purchaser of the property in dispute was not only Kapoor Chand but also his sons. Hence, it could not be said that the sons of Kapoor Chand had no semblance of title and were mere busybodies or interlopers. It, however, may be pertinent to note that in both the above decisions it was the third party/parties who had filed applications for being impleaded as defendants whereas in the facts of the present case, the question is whether or not the sons of the defendant were necessary parties.
27.4 It has been urged on behalf of the defendant that prior to the institution of the previous suit the plaintiffs were aware that the defendant's six sons had interest in the suit property and that each of them had a share equal to that of the defendant, and, therefore, when the sons of the defendant had an interest in the suit property, for the purpose of obtaining any relief in the suit, it was necessary to join them as parties to the suit, and therefore, the trial court was wholly justified in holding that the suit was bad on the ground of non- joinder of necessary parties. In this regard, it is well settled that the tests to determine as to who is a necessary party to a proceeding, are: (i) there must be a right to some relief against such party in respect of the matter involved in the proceeding in question and (ii) it should not be possible to pass an effective decree in absence of such a party.
27.5 At this juncture, reference may be made to the provisions of section 19 of the Specific Relief Act, which read as under:
Page 103 of 139C/FA/558/2002 JUDGMENT "19. Relief against parties and persons claiming under them by subsequent title. - Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against -
(a) either party thereto;
(b) any other person claiming under him by a title arising subsequently to the contract except a transferee for value who has paid his money in good faith and without notice of the original contract;
(c) any person claiming under a title which, though prior to the contract and known to the plaintiff, might have been displaced by the defendant;
(d) when a company has entered into a contract and subsequently become amalgamated with another company, the new company which arises out of the amalgamation;
(e) when the promoters of a company have, before its incorporation, entered into a contract for the purpose of the company and such contract is warranted by the terms of the incorporation, the company;
Provided that the company has accepted the contract and communicated such acceptance to the other party to the contract."
27.6 On a plain reading of section19 of the Specific Relief Act, it is apparent that the sons of the defendant do not fall within the ambit of any of the categories enumerated in clauses (a) to (e) thereof, inasmuch as, they are neither parties to the contract nor are they claiming under him. On the contrary, their claim is adverse to the title of the defendant. Section 19 is exhaustive on the question as to who are the parties against whom a contract for specific performance may be enforced. For the defendant's sons to be necessary there must be a right to some relief against them in respect of the matter involved in the proceeding in question, whereas in the facts of the present case, the suit agreement has been executed by and between the plaintiffs and the defendant and hence, the plaintiffs do not have a right to any relief against Page 104 of 139 C/FA/558/2002 JUDGMENT the defendant's sons under the suit agreement which forms the foundation of the suit for specific performance. In the opinion of this court, if the sons of the defendant were to be added to the suit it would tantamount to conversion of the suit into a title suit deciding the title inter se between the defendant and his sons. The other test which is required to be satisfied is whether it is not be possible to pass an effective decree in absence of such a party. In the opinion of this court, for effectively adjudicating upon the right of the plaintiffs and the defendant based upon the suit agreement, the presence of the sons of the defendant is not at all necessary. In case the defendant succeeds in showing that the suit property is ancestral land in which his sons have a share, a decree of specific performance could be granted only to the extent of the defendant's share in the property and in respect of the remaining land damages could be awarded in favour of the plaintiffs. The judgment in the suit would, therefore, not in any manner affect the rights of the sons of the defendant. In the opinion of this court, the defendant's sons being strangers to the suit agreement making a claim adverse to the title of the defendant (vendor) contending that they are co-owners of the suit property are neither necessary nor proper parties.
27.7 In Krishan Lal and others v. Tekchand and others, AIR 1987 P&H 197, it was urged that in a suit for specific performance of contract for sale, instituted by a purchaser against the vendor, a stranger to the contract is not entitled to be added as a party even if he contended that the contracted property is joint family property of which he is also the co-owner. In such a case, especially when there was no prayer for possession in the suit if the third parties were Page 105 of 139 C/FA/558/2002 JUDGMENT added, it would enlarge the scope of the suit and the suit would turn to be a suit for title. It cannot be said that to avoid multiplicity of proceedings it would be proper to join third parties since merely on this ground, a party which does not fall within the scope of the expression which governs the question for determination as to who is a proper party, cannot be joined as a proper party to the suit. When the plaintiff is willing to take the title, which the vendor had, and no relief for possession of the suit property was claimed nor any relief was claimed against the applicants therein, the latter cannot be allowed to be joined as parties.
27.8 The trial court was, therefore, not justified in holding that the suit is bad on account of non-joinder of necessary parties. Point No.2 stands answered accordingly.
POINT NO. 328. Whether the trial court was justified in holding that the suit agreement is void?
28.1 The trial court, in the impugned judgment, has held that the plaintiffs not being agriculturists were not entitled to purchase agricultural land and, therefore, the suit agreement is violative of the provisions of section 63 of the Tenancy Act. In this regard it may be pertinent to refer to the relevant provisions of the Tenancy Act. Section 63 of the Tenancy Act bars transfers to non-agriculturists and inter alia provides that save as provided in the Act no agreement made by an instrument in writing for the sale, gift, exchange, lease or mortgage of any land or any interest therein shall be valid in Page 106 of 139 C/FA/558/2002 JUDGMENT favour of a person who is not an agriculturist or who being an agriculturist cultivates personally land not less than the ceiling area whether as an owner or tenant or partly as owner and partly as tenant or who is not agricultural labourer. Clearly, therefore, section 63 bars even agreements of sale in favour of non-agriculturists.
28.2. Section 85 of the Tenancy Act which bears the heading "Bar of jurisdiction". Sub-section (1) thereof provides that no civil court shall have jurisdiction to settle, decide or deal with any question which is by or under the Act required to be settled, decided or dealt with by the Mamlatdar or Tribunal, a Manager, the Collector, the Gujarat Revenue Tribunal or the State Government in appeal or revision or the State Government in exercise of their powers of control.
28.3 Section 70 of the Tenancy Act provides for the duties and functions to be performed by the Mamlatdar. Clause
(a) thereof reads thus: "to decide whether a person is an agriculturist". Therefore, the question as to whether the plaintiffs are agriculturists within the meaning of such expression as contemplated in the Tenancy Act falls within the ambit of the duties of the Mamlatdar under section 70 of the Tenancy Act and, therefore, the jurisdiction of the civil court to decide such question is ousted. The trial court, therefore, had no jurisdiction to decide as to whether the plaintiffs who were residing at a distance of more than eight kilometres from the suit land were agriculturists or not.
Besides, section 63 of the Tenancy Act inter alia provides that no sale shall be valid in favour of a person who is not an Page 107 of 139 C/FA/558/2002 JUDGMENT agriculturist except in the circumstances provided there under. Section 84C of the Tenancy Act provides that wherein respect of the transfer or acquisition of any land the Mamlatdar suo motu or on the application of any person interested in such land has reason to believe that such transfer or acquisition is or becomes invalid under any provisions of the Act, the Mamlatdar shall issue notice and hold inquiry as provided for in section 84B and decide whether the transfer or acquisition is or is not valid. Sub-section (2) thereof inter alia provides that if after holding inquiry, the Mamlatdar comes to the conclusion that the transfer or acquisition of land to be invalid, he shall make an order declaring the transfer or acquisition to be invalid. Therefore, the jurisdiction to decide question as regards the validity of a transfer or acquisition of land is vested in the Mamlatdar under section 84C of the Tenancy Act and consequently, the jurisdiction of the trial court to decide such question is barred. The trial court, therefore, had no jurisdiction to determine as to whether the suit agreement was in breach of the provisions of section 63 of the Tenancy Act and decide on the validity thereof.
28.4 Moreover, on a plain reading of the recitals contained in the suit agreement, it is evident that there was no agreement to sell agricultural lands but that the agreement was to sell non-agricultural land as the defendant was first required to obtain N.A permission and get such entry made in the revenue record and after obtaining the title clearance certificate, to execute the sale deed in favour of the plaintiffs or their nominees. The trial court, however, has totally ignored this part of the suit agreement and embarked upon an unnecessary inquiry as to whether the plaintiffs were Page 108 of 139 C/FA/558/2002 JUDGMENT agriculturist and were competent to purchase the suit lands.
28.5 In the light of the fact that the suit agreement is an agreement to sell non-agricultural land, apart from the fact that the trial court had no jurisdiction to pronounce on the validity of the suit agreement on the ground of breach of the provisions of the Tenancy Act, even otherwise, the provisions of section 63 of the Tenancy Act would not be attracted to the transaction in question. The trial court was, therefore, not justified in holding that the suit agreement was void. Point No.3 stands answered accordingly.
POINT NO.4
29. Whether the trial court was justified in holding that the plaintiffs are not entitled to a decree of specific performance?
29.1 Section 16 of the Specific Relief Act bears the heading "Personal bars to relief". Clause (c) thereof provides that specific performance of a 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 or waived by the defendant. The explanation to the said clause provides that (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; and (ii) the plaintiff must aver performance of, or readiness and Page 109 of 139 C/FA/558/2002 JUDGMENT willingness to perform, the contract according to its true construction.
29.2 The expression "readiness and willingness" to perform has been explained by the Supreme Court in the case of J.P. Builders v. A. Ramadas Rao, (2011) 1 SCC 429, wherein the court has held that the words "ready" and "willing" imply that the person was prepared to carry out the terms of the contract. The distinction between "readiness" and "willingness" is that the former refers to financial capacity and the latter to the conduct of the plaintiff wanting performance. Generally, readiness is backed by willingness.
29.2.1 The court referred to its earlier decision in the case of N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao, (1995) 5 SCC 115, wherein it was held that section 16(c) of the Act envisages that the 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 fails 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 Page 110 of 139 C/FA/558/2002 JUDGMENT 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.
29.2.2 The court further held that section 16(c) of the Specific Relief Act, 1963 mandates "readiness and willingness"
on the part of the plaintiff and it is a condition precedent for obtaining relief of grant of specific performance. It is also clear that in a suit for specific performance, the plaintiff must allege and prove a continuous "readiness and willingness" to perform the contract on his part from the date of the contract. The onus is on the plaintiff. The court further held that it is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that plaintiff has to comply with section 16(c) of the Specific Relief Act and when there is non-compliance with this statutory mandate, the court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. "Readiness and willingness"
to perform the part of the contract has to be determined/ascertained from the conduct of the parties.
29.3. A Division Bench of this court in the case of Ashwinkumar Manilal Shah v. Chhotabhai Jethabhai Patel (supra) held that section 16(c) of the Specific Relief Act provides that specific performance of a 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 of the performance of which has been prevented or waived by the defendant. The Page 111 of 139 C/FA/558/2002 JUDGMENT court held that from this provision it is clear that a person who fails to aver and prove that he has performed or has always been ready and willing and is still ready and willing to perform the essential terms of the contract is not entitled to a decree for specific performance of contract. The court further held that in addition to such allegation there should be specific allegation and there should be specific proof by the plaintiff that he has been ready and willing to perform his part of the obligation under the contract. If in the evidence mere readiness of the plaintiff is established but not willingness the suit for specific performance is bound to fail. Similarly, if the willingness of the plaintiff to perform his part of the obligation is proved, but not readiness in that case, no decree for specific performance can be granted.
29.4 In the light of the above statutory and legal position, it may be germane to refer to the averments regarding readiness and willingness to perform the contract made by the plaintiffs. Such averments have to be read in conjunction with certain other averments made in the plaint. In paragraph 3 of the plaint, it has been averred that on the basis of the registered banakhat, the defendant was required to obtain N.A. permission at the cost of the defendant and was required to get the same entered in the record and after getting the rights and title cleared was within a period of two years thereafter required to obtain the balance consideration from the plaintiffs and was bound to execute a sale deed in favour of the plaintiff or in favour of any one or more persons named by the plaintiffs.
29.5 In paragraph 4, it is stated that the plaintiffs have in
Page 112 of 139
C/FA/558/2002 JUDGMENT
unambiguous terms informed the defendant in writing that the plaintiffs are always ready and willing to perform their obligations under the registered banakhat and are even now ready to give the entire consideration in terms of the conditions of the banakhat and in this regard, the plaintiffs had given a registered notice dated 26.11.1992 to the defendant which the defendant has not acted upon.
29.6 In paragraph 6, it is averred that on the basis of the above facts. it has become necessary to file this suit to see that the defendant performs his obligations under the agreement and for the purpose of effectively implementing the agreement to sell as well as to see that the defendant obtains N.A. permission at his own cost and puts the plaintiff in actual possession of the land and executes a registered sale deed in favour of the plaintiffs or in favour of the person nominated by the plaintiffs.
29.7 Thus, while in paragraph 9 of the agreement to sell, the parties have specifically agreed that the vendee shall bear the entire cost of stamp fee, drafting, typing, advocates fee for the purpose of execution of the sale deed for ownership rights over the subject land and shall bear the cost of getting the title cleared as well as obtaining certificate and obtaining the N.A. or other ancillary approvals, in the plaint it is averred that the defendant has to obtain N.A. permission at his own cost. The readiness and willingness of the plaintiffs has to be read in the light of these averments, inasmuch as prior to payment of the balance consideration, an obligation was cast upon the plaintiffs to bear the cost of N.A. permission, whereas the plaintiffs have sought to throw such burden on the defendant.Page 113 of 139
C/FA/558/2002 JUDGMENT As held by the Supreme Court in the above referred decision, the words "ready" and "willing" imply that the person was prepared to carry out the terms of the contract. It has been held that the distinction between "readiness" and "willingness"
is that the former refers to financial capacity and the latter to the conduct of the plaintiff wanting performance. Generally, readiness is backed by willingness. 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. It has been held that mere pleading regarding readiness and willingness will not be enough. The plaintiff has to state during trial that he is still ready and willing to perform his part of the contract. In order to prove readiness the plaintiff has to prove that he has the necessary means from the date of the contract till the date of filing of the suit to pay the balance consideration. In the facts of the present case, except for a bare assertion in the plaint that the plaintiffs are ready and willing to perform their obligations under the registered banakhat and are even now ready to give the entire consideration in terms of the banakhat, nothing has been so stated in the oral evidence. While by way of documentary and oral evidence, the execution of the agreement and part-payment of sale consideration at the time of the execution of the agreement has been proved, no oral evidence has been adduced regarding the plaintiffs being ready and willing to perform their part of the obligations under the suit agreement. No evidence whatsoever has been led to show that the plaintiffs had sufficient cash and financial capacity to execute the sale deed to prove readiness to perform their part of the obligations under the suit agreement.
Page 114 of 139C/FA/558/2002 JUDGMENT Moreover, while it was the obligation of the plaintiffs to bear the cost of obtaining N.A. permission and the title clearance, in the plaint such obligation is sought to be cast upon the defendant. The averment regarding readiness and willingness is therefore, not according to the true construction of the contract as contemplated in clause (ii) of the explanation to section 16(c) of the Specific Relief Act.
29.8 On behalf of the appellants, the learned advocate has placed reliance upon the decision of the Supreme Court in the case of Motilal Jain v. Ramdasi Devi, (2000) 6 SCC 420, wherein the court has held 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 fulfill 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. However, this decision in no manner carries the case of the appellants any further inasmuch as, it is nobody's case that the averments regarding readiness and willingness are not made in the plaint.
29.9 The learned counsel for the appellants has also placed reliance upon the decision of the Supreme Court in the case of R.C. Chandiok v. Chuni Lal Sabharwal, (1970) 3 SCC 140, wherein the court held thus:-
"5. We are unable to concur with the reasoning or the conclusions of the High Court on the above main points.Page 115 of 139
C/FA/558/2002 JUDGMENT It is significant that the lease deed was not executed in favour of the respondents by the Government until May 21, 1956. So long as their own title was incomplete there was no question of the sale being completed. It is also undisputed that according to the conditions of the lease the respondents were bound to obtain the sanction of the Rehabilitation Ministry before transferring the plot to any one else. The respondents were fully aware and conscious of this situation much earlier and that is the reason why on August 11, 1955 it was agreed while extending the period for execution of the sale deed that the same shall be got executed after receipt of the sanction. The statement contained in Ext. P-7 that the execution of the sale deed "by us cannot be complete without the said sanction" was unqualified and unequivocal. The respondents further undertook to inform the appellants as soon as sanction was received and thereafter the sale deed had to be executed within a week and got registered on payment of the balance amount of consideration. We are wholly unable to understand how in the presence of Ext. P-7 it was possible to hold that the appellants were bound to get the sale completed even before any information was received from the respondents about the sanction having been obtained. It is quite obvious from the letter Ext. P-8, dated June 15, 1956 that the respondents were having second thoughts and wanted to wriggle out of the agreement because presumably they wanted to transfer it for better consideration to some one else or to transfer it in favour of their own relation as is stated to have been done later. The respondents never applied for any sanction after August 11, 1955 and took up the position that they were not prepared to wait indefinitely in the matter and were therefore cancelling the agreement "for want of certainty". We are completely at a loss to understand this attitude nor has any light been thrown on the uncertainty contemplated in the aforesaid letter. It does not appear that there would have been any difficulty in obtaining the sanction if the respondents had made any attempt to obtain it. This is obvious from the fact that when they actually applied for sanction on November 11, 1956 it was granted after almost a week. The statement contained in Exhibit P-10, dated July 4, 1956 that the sanction was not forthcoming has not been substantiated by any cogent evidence as no document was placed on the record to Page 116 of 139 C/FA/558/2002 JUDGMENT show that any attempt was made to obtain sanction prior to November 11, 1956. Be that as it may the respondents could not call upon the appellants to complete the sale and pay the balance money until the undertaking given in Ext. P-7, dated August 11, 1955 had been fulfilled by them. The sanction was given in November, 1956 and even then the respondents did not inform the appellants about it so as to enable them to perform their part of the agreement of sale. There was no question of time having ever been made the essence of the contract by the letters sent by the respondents nor could it be said that the appellants had failed to perform their part of the agreement within a reasonable time.
6. On behalf of the respondents it has been urged that in spite of the letters of the respondents by which the agreement had been cancelled the appellants did not treat the agreement of sale as having come to an end and kept it alive. They were therefore bound to send a draft of the conveyance and call upon the respondents to execute the sale deed and get it registered on payment of the balance of the sale price as soon as they came to know directly from the Housing and Rent Officer that sanction had been granted. This they failed to do and it must be inferred that they were not ready and willing to perform their part of the agreement. Our attention has been invited to a statement in Halsbury's Laws of England, Vol. 34, 3rd Edn. at p. 338 that in the absence of agreement to the contrary it is the purchaser who has to prepare the draft conveyance and submit it to the vendor for approval. No such point was raised at any prior stage and in any case we do not consider that after the cancellation of the agreement by the respondents it was necessary or incumbent on the appellants to send any draft conveyance. The very fact that they promptly filed the suit shows their keenness and readiness in the matter of acquiring the plot by purchase. It must be remembered that the appellants had not only put in an advertisement in newspapers about the existence of the agreement but had also sent a letter Ex. P-13 on September 12, 1956 declaring their readiness and willingness to pay the balance of the purchase price on the respondents procuring the sanction. The appellants further made enquiries directly Page 117 of 139 C/FA/558/2002 JUDGMENT from the authorities concerned about the sanction. Readiness and willingness cannot be treated as a straight-jacket formula. These have to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned. In our judgment there was nothing to indicate that the appellants at any stage were not ready and willing to perform their part of the contract. The High Court had taken another aspect of readiness and willingness into consideration, namely, the possession of sufficient funds by the appellants at the material time for payment of the balance of the sale price. Romesh Chand PW 6 had stated that his father was a Head Master since 1922 in a High School and he was also doing import business. He gave up service in 1934. The son joined the father in his business in the year 1928 and his other brother Appellant 2 also joined that business some years ago. The bank account was produced which showed that between July 18, 1955 and December 31, 1955 the appellants' father had in his account a credit of over Rs 15,000 but thereafter between January, 1956 and March, 1956 an amount of Rs 16,000 odd had been withdrawn. According to the High Court, after these dates there was nothing to show that the appellants had any funds. The evidence of Romesh Chand PW 6 that the family had an amount of Rs 40,000 lying at the house was not believed. Now in the first place the relevant period for determining whether the appellants were in a position to pay the balance of the sale price was after November, 1956 when sanction had been obtained by the respondents for transfer of the plot from the Rehabilitation Ministry. The appellants had admittedly paid without any difficulty Rs 7500 as earnest money and the bank account of the father showed various credit and debit entries from time to time. On March 5, 1956 an amount of Rs 12,720 had been withdrawn by a cheque in favour of Romesh Chand PW 6. According to his statement this amount was withdrawn because his father was very ill and it was decided to withdraw the amount at that time. It was deposited with his mother and remained with her throughout. There is no material or evidence to show that this amount had been expended or spent and that the statement of Romesh Chand was false on the point. Even if the version that Rs 40,000 in cash were lying at the house of the appellant is discarded at least an Page 118 of 139 C/FA/558/2002 JUDGMENT amount of Rs 12,720 must have been available at the material and relevant time. The appellants were carrying on business and there is nothing to indicate that they were not in a position to arrange for the remaining sum to make up the total of Rs 15,000. We are therefore, unable to accept that the appellants, who had all along been trying their utmost to purchase the plot, did not have the necessary funds or could not arrange for them when the sale deed had to be executed and registered after the sanction had been obtained."
29.10 It was submitted that the above decision would be squarely applicable to the facts of the present case as the onus lay upon the defendant to first obtain the N.A. permission and get the title clearance whereafter the appellants were required to pay the balance consideration. It was emphatically argued that no evidence has been led to show that the plaintiffs did not have the means to perform their part of the obligation and that there is no allegation to that effect in the written statement. Referring to the contents of the written statement, it was submitted that the defendant has nowhere stated that the plaintiffs were not ready and willing to perform their obligations under the contract, and, therefore, there was no requirement for the plaintiffs to show that they were ready and willing to perform their part of the contract. It was submitted that there was an obligation upon the defendant to spell out that the plaintiffs were not ready and willing to fulfill their part of the contract in which case, the plaintiffs would have been required to deal with the same and an issue would have been framed in that regard. It was further submitted that the readiness and willingness has to be culled out from the conduct of the plaintiffs inasmuch as soon after the suit agreement came to be executed, the plaintiffs had sought registration of the same; however, it was the defendant who Page 119 of 139 C/FA/558/2002 JUDGMENT had not performed his obligations under the contract and has refused to get the same registered. It was submitted that the plaintiffs had thereafter, with a view to protect their rights under the agreement to sell instituted the suit for permanent injunction, and therefore, it is evident that at all times, the plaintiffs were ready and willing to perform their obligations under the contract. It was submitted that under the terms of the agreement, the stage for the plaintiffs to perform their part of the obligations under the contract arises after the N.A. permission has been obtained, whereas in the facts of the present case, it is not the case of the defendant that he had applied for N.A. permission and called upon the plaintiffs to incur the expenditure in respect thereof and that the plaintiffs had refused to do so. It was submitted that the contract agreement was required to be executed in terms of the sequence provided therein, whereby firstly there was an obligation on the part of the defendant to obtain N.A. permission and title clearance certificate while the expenditure was to be incurred by the plaintiffs. It was submitted that in the absence of the defendant having called upon the plaintiffs to pay any part of the expenditure for obtaining the N.A. permission, there was no obligation on the part of the plaintiffs under the suit agreement. Therefore, the stage of the plaintiffs performing their obligation under the contract had not yet arrived, and hence, the readiness and willingness of the plaintiffs is required to be viewed in the totality of the facts as emerging from the record.
29.11 It was submitted that least the defendant could have done was to specify at the time of trial or otherwise as to which of the obligations, according to the defendant, the Page 120 of 139 C/FA/558/2002 JUDGMENT plaintiffs were neither ready nor willing to perform.
29.12 In support of such submission, the learned counsel placed reliance upon the decision of the Supreme Court in the case of Ramkrishna Pillai and another v. Muhammed Kunju and others, (2008) 4 SCC 212, wherein the court had observed that there was no dispute ever raised by the defendants about the readiness and willingness of the plaintiffs to fulfill their obligations and that the High Court was clearly in error in holding that no plea regarding readiness and willingness was raised. The court noted that the trial court, in its judgment had referred to various portions of the averments in the plaint, where the plaintiffs had categorically stated that they were and are always willing to fulfill their part of the obligations. The High Court also failed to notice that there was no plea either in the written statement or in the cross objections filed in the appeal before the High Court that the plaintiffs were not ready and willing to fulfill their part of the obligation. In the facts of the said case, the High Court had concluded as follows:
"Then the question is whether the respective plaintiffs have pleaded and proved that they were always ready and willing to perform their part of the contracts. Even though time did not start to run on the expiry of two months from the dates of the agreements, certainly, the plaintiffs were aware that the defendants had to discharge their obligation and get a release of the mortgage in two months of the dates of the agreements. Until the sending of the notices preceding the suits, there is nothing to show that the plaintiffs at any time called upon the defendants to perform their part of the contract."
The Supreme Court held that the conclusions were clearly Page 121 of 139 C/FA/558/2002 JUDGMENT contrary to the pleadings of the plaintiffs. It was categorically stated in the plaint in both the suits that the plaintiffs are always ready and willing to fulfill their part of the obligations and that defendants were evading the execution for one reason or the other.
29.13 Mr. Vakil also referred to the decision of the Supreme Court in the case of Gurdial Kaur v. Piara Singh, (2008) 14 SCC 735, wherein the court held that a suit for specific performance of contract provides for a discretionary remedy and that in terms of section 20 of the said Act, the court may for sufficient and cogent reasons refuse to grant a decree for specific performance of contract. The court held that in terms of section 16(c) of the Specific Relief Act, the court must arrive at a finding that the plaintiff had not only averred, but also established readiness and willingness on his part to perform his part of the contract. The court held that the rigours of section 16(c) of the Act, however, are not such which would for all intent and purport to be strictly construed. Indisputably, it is necessary to make averments in regard to the readiness and willingness as is required under section 16(c) of the Act in terms of Form 47 appended to the Code of Civil Procedure. It is, however, trite that, even for the said purpose, the entirety of the plaint must be taken into consideration. If upon reading the plaint in its entirety, the court comes to the conclusion that for all intent and purport, the requirements of section 16(c) of the Specific Relief Act stood complied with, no exception thereto can be taken. The court noticed that the first appellate court inter alia opined that not only the plaintiff has expressed his readiness to purchase the land, his willingness to do so can be culled out Page 122 of 139 C/FA/558/2002 JUDGMENT from other averments made in the plaint as and in particular the one where he had stated that he had gone to the Registration Office for getting the deed of sale executed and registered but it was the defendant, who did not turn up thereafter. He had also fulfilled the criteria of his readiness and willingness to perform his part of the contract as not only he had paid a sum of Rs. 7,000/- on the date of the execution of the agreement, he had deposited a balance sum of Rs. 8,000/- on the date of presentation of the plaint. As a vendee what he could do was to offer the balance amount of consideration to the vendor and make arrangements for getting the sale deed executed and registered. If he has done all that, the vendee was ready and willing to perform his part of the contract.
29.14 Referring to the testimony of the defendant's witness, it was pointed out that the witness has admitted that his father had not asked for any expenditure for the purpose of obtaining N.A. and preparing maps and that his father had not taken any action for preparing maps and obtaining N.A. permission. It was submitted that the plaintiffs had always shown readiness and willingness to perform their part of the contract and that the defendants have not been in a position to point out as to how the plaintiffs were not ready and willing to perform their obligations under the contract, and therefore, the trial court was not justified in holding that the plaintiffs were not entitled to the grant of a decree of specific performance of the suit agreement.
29.15 On the other hand, Mr. H. M. Parikh, learned advocate for the defendants had invited the attention of the court to the provisions of Order VIII rule 5 of the First Schedule Page 123 of 139 C/FA/558/2002 JUDGMENT to the Code to submit that the same provides that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleadings of the defendant, shall be taken to be admitted except as against a person under disability. It was submitted that, therefore, the only obligation upon the defendant is to deny every allegation of the facts set out in the plaint and no further allegations are required to be made as to whether the plaintiff is ready and willing to perform the part of the obligation under the suit agreement. Reference was made to the written statement filed on behalf of the defendant, to submit that the defendant has denied the averments made by the plaintiffs in the plaint that they were always ready and willing to perform their part of the obligations under the contract. It was submitted that when there is a denial, the plaintiffs have to prove that they were and are ready and willing to perform their obligations under the contract and if they are able to prove such fact, the onus then shifts on the defendant. It was submitted that in the absence of any evidence in this regard, namely, that the plaintiffs were ready and willing to perform their obligations under the contract, the onus never shifted upon the defendant. It was submitted that there is no evidence in the examination-in-chief of the plaintiff to the effect that they were ready and willing to perform their obligations under the contract and, therefore, there is no cross- examination on this aspect in the testimony of the plaintiff. It was submitted that at no point of time have the plaintiffs issued any notice to the defendant to obtain N.A. permission and, on the contrary, it is averred in the plaint that the defendant has to incur the expenditure for N.A. permission at his own cost. It was submitted that in these circumstances, it Page 124 of 139 C/FA/558/2002 JUDGMENT cannot be said that the plaintiffs are ready and willing to perform their obligations under the suit agreement as they are shifting their liability under the contract on the defendant. It was urged that the plaintiffs having failed to prove that they were ready and willing to perform the essential terms of the contract which were to be performed by them, the trial court was wholly justified in holding that the plaintiffs were not entitled to specific performance of the suit agreement.
29.16 In support of his submissions, the learned counsel placed reliance upon the decision of the Supreme Court in the case of Pushparani S. Sundaram v. Pauline Manomani James (supra), wherein the court held thus:
4. The only question raised before the High Court which it considered, to which we are called upon for consideration is, whether the appellants were always ready and willing to perform their part under the contract. The High Court came to the conclusion that willingness and readiness is no doubt pleaded but they led no evidence to prove it.
Thus held, that the plaintiff is not entitled for the decree of specific performance. The submission by the learned Counsel for the appellants is that the plaintiff was always willing and ready to perform his part under the contract but mere non-leading of any evidence is not sufficient to reject it. Inference of readiness and willingness could be drawn by the conduct of the plaintiff and the circumstances, in a particular case in other words to be gathered from the totality of circumstances.
5. For this, the appellants rely on two circumstances, one that immediately after the exemption was given by the Ceiling Authorities on the 31st March, 1982, the present suit was filed in April, 1982 and the other the tendering of further sum of Rs. 5,000/- to the defendant after execution of the agreement of sale. He also reiterates with reference to Para 11 of the plaint which pleads that the appellant was and is ready and willing to perform his part of the contract. So far these are being a plea that Page 125 of 139 C/FA/558/2002 JUDGMENT they were ready and willing to perform their part of the contract is there in the pleading. We have no hesitation to conclude, that this by itself is not sufficient to hold that the appellants were ready and willing in terms of Section 16(c) of the Specific Relief Act. This requires not only such plea but also proof of the same. Now examining first of the two circumstances, how could mere filing of this suit, after exemption was granted could be a circumstance about willingness or readiness of the plaintiff. This at the most could be the desire of the plaintiff to have this property. It may be for such a desire this suit was filed raising such a plea. But Section 16(c) of the said Act makes it clear that mere plea is not sufficient, it has to be proved.
6. Next and the only other circumstance relied is about the tendering of Rs. 5,000/, which was made on the 2nd March, 1982 which was even prior to the grant of the exemption. Such small feeder to the vendor is quite often made to keep a vendor in good spirit. In this case only other payment made by the plaintiff was Rs. 5,000/-at the time of execution of the agreement of sale. Thus, total amount paid was insignificantly short of the balance amount for the execution of the sale deed. Thus, in our considered opinion the said two circumstances taken together, is too weak a filament to stand even to build an image of readiness and willingness. Section 16(c) of the Specific Relief Act, requires that not only there be a plea of readiness and willingness but has to be proved so. It is not in dispute except for a plea there is no other evidence on record to prove the same except the two circumstances. It is true that mere absence of plaintiff coming in the witness box that by itself may not be a factor to conclude that he was not ready and willing in a given a case as erroneously concluded by the High Court. But in the present case, not only the plaintiff has not come in the witness box, but not even sent any communication or notice to the defendant about his willingness, to perform his part of the contract. In fact no evidence is led to prove the same."
29.17 It was submitted that, therefore, merely making an averment in the plaint that the plaintiffs are ready and willing to perform their part of the agreement is not sufficient, but Page 126 of 139 C/FA/558/2002 JUDGMENT such plea has to be proved by adducing evidence in that regard, whereas no such evidence has been led by the plaintiffs to prove that they were ready and willing to perform their obligations under the suit agreement.
29.18 Reference was also made to paragraph 12 of the decision of the Supreme Court in the case of B. Vijaya Bharathi v. P. Savitri, (supra), wherein the court observed thus:-
"12. One crucial fact that stares us in the fact is that on 13.03.1992 the first defendant ran away from the Registering Authority making it clear that she did not want to act in furtherance of the Agreement in executing a General Power of Attorney in favour of the plaintiff's husband. The High Court was right in stating that no prudent person would stay quiet for a period of one year and eleven months after such an unequivocal repudiation of the agreement if they were really interested in going ahead with the sale transaction. The only inference, therefore, from this is that the plaintiff cannot possibly be said to be ready and willing throughout to perform their part of the agreement."
29.19 Mr. Parikh submitted that in the facts of the present case also, the defendant on 9.5.1991 itself had not agreed to give his consent for registration of the suit agreement. However, even thereafter, the plaintiffs did not take any action till 26.11.1992 when the notice came to be issued to the defendant to perform his part of the obligations under the suit agreement. It was submitted that in these circumstances, it cannot be said that the plaintiffs were ready and willing to perform their part of the obligations under the suit agreement.
29.20 As noticed earlier, on behalf of the
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appellants/plaintiffs, reliance has been placed upon the
decision of the Supreme Court in the case of Ramkrishna PiIIai v. Muhammed Kunju (supra), wherein the Supreme Court in paragraph 6 of the reported decision has noted that there was no denial to the plea regarding readiness and willingness, whereas in the facts of the present case, while the plaintiffs have made the averments regarding readiness and willingness to perform their obligations under the suit agreement in paragraph 4 of the plaint, the defendant in paragraph 11 of the written statement has clearly stated that the plea taken in paragraph 4 of the plaint is not proved and that in the said paragraph the plaintiffs have stated that they had in an unambiguous manner informed the defendant in writing that they were always ready and willing perform their duties and obligations under the banakhat and that they are ready to pay the balance consideration as per the banakhat etc. which facts are incorrect and that the defendant does not accept the same.
29.21 In J.P. Builders (supra), the Supreme Court has held that it is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply with section 16(c) of the Specific Relief Act and when there is no compliance with this statutory mandate, the court is not bound to grant specific performance and is left with no alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. "Readiness and willingness" to perform the part of the contract has to be determined/ascertained from the conduct of the parties.
Page 128 of 139C/FA/558/2002 JUDGMENT 29.22 Thus, the above referred decision of the Supreme
Court in Ramkrishna PiIIai v. Muhammed Kunju (supra) would turn on the facts of the said case and would not be applicable to the facts of the present case. Besides, the Supreme Court in a later decision in the case of Pushparani S. Sundaram v. Pauline Manomani James (supra) has held that a mere plea that the plaintiffs were ready and willing to perform their part of the contract is by itself not sufficient to hold that the plaintiffs were ready and willing in terms of section 16(c) of the Specific Relief Act which requires not only such plea but also proof thereof. The court observed that merely filing of the suit after exemption was granted could not be said to be a circumstance about readiness and willingness of the plaintiff; this at the most could be a desire of the plaintiff to have the property. It may be that for such a desire the suit was filed raising such a plea, but section 16(c) of the said Act makes it clear that mere plea is not sufficient, it has to be proved.
29.23 Viewed in the light of the above decision, the steps taken by the plaintiffs of filing a suit for permanent injunction to protect their rights under the suit agreement as well as making an application for being joined as a party in the partition suit instituted by a son of the defendant, all are indicative of the fact that the plaintiffs desired to purchase the property; however, except for a bare assertion in the plaint that the plaintiffs are and were always ready and willing to perform their part of the obligations under the suit agreement, no evidence worth the name has been led to prove the same. As held in the above decision, a mere plea is not sufficient, it has to be proved.
Page 129 of 139C/FA/558/2002 JUDGMENT 29.24 In Nathulal v. Phoolchand, 1969 (3) SCC 120, the
Supreme Court has held that in considering whether a person is willing to perform his part of the contract, the sequence in which the obligations under a contract are to be performed must be taken into account. The court held that if under the terms of the contract the obligations of the parties have to be performed in a certain sequence, one of the parties to the contract cannot require compliance with the obligations by the other party without in the first instance performing his own part of the contract which in the sequence of obligations is performable by him earlier. The court held that in view of the arrangement made by Phoolchand, it was clear that he had at all relevant times made necessary arrangements for paying the amount due, but so long as Nathulal did not carry out his part of the contract Phoolchand could not be called upon to pay the balance of the price. In these circumstances, the court held that Phoolchand was at all relevant times willing to carry out his part of the contract.
29.25 In Chandnee Widya Vati Madden v. C.L. Katial, AIR 1964 SC 978, the Supreme Court observed that the plaintiffs called upon the defendant several times to fulfil her part of the agreement but she failed to do so. It was averred on behalf of the plaintiffs that they had always been ready and willing to perform their part of the contract and it was the defendant who had backed out of it.
29.26 In the facts of the present case, in terms of the sequence as set out in the suit agreement, it was the defendant who was required to obtain the N.A. permission and Page 130 of 139 C/FA/558/2002 JUDGMENT get the same entered in the revenue record and to obtain title clearance certificate; however, it was the plaintiffs who were to bear the cost thereof. A close reading of the recitals contained in the suit agreement shows that in terms of the agreement, initially N.A. permission was to be obtained by the vendor whereafter the possession of the suit land was to be handed over to the vendee for use thereof. Under the terms of the agreement, if necessary, a registered agreement was to be executed in favour of a proposed society or in the name of such person/persons nominated by the vendee upon a consensus in a manner whereby the rights of neither of the parties is prejudiced.
29.27 After the defendant refused to execute the registered agreement to sell and took a stand that as his sons had an equal share in the suit land he could not execute the same without the consent of his sons, the plaintiffs have not pursued the matter any further by calling upon the defendant to obtain the consent of his sons or to obtain N.A. permission and hand over the possession of the suit land in furtherance of the agreement. Insofar as filing proceedings for getting the suit agreement registered and instituting the suit for permanent injunction and getting themselves impleaded in the partition suit instituted by the defendant's son is concerned, in the opinion of this court, these steps taken by the plaintiffs to protect their rights under the suit agreement only go to show that they were desirous of purchasing the suit land. However, the same does not establish readiness and willingness to perform their part of the suit agreement. Moreover, as is apparent on a plain reading of the plaint, none of the facts regarding the refusal of the defendant to get the suit Page 131 of 139 C/FA/558/2002 JUDGMENT agreement registered, the fact regarding the partition suit having been instituted by the defendant's son and the plaintiffs having made an application for being impleaded as parties or the fact regarding the plaintiffs having instituted a suit for permanent injunction have been mentioned by the plaintiffs and such facts appear to find reference in the examination-in- chief of the plaintiff No.2 only with a view to deal with the facts stated in the written statement of the defendant wherein various facts have been set out in support of the plea that the suit is barred by the provisions of Order ll rule 2 of the First Schedule to the Code.
29.28 A perusal of the suit notice reveals that the plaintiffs have called upon the defendant to take steps to get the suit land converted into non-agricultural land and within one month obtain the balance consideration from the plaintiffs and execute a registered sale deed in their favour. Thus, when the plaintiffs had called upon the defendant to obtain the balance consideration from them within a period of one month after obtaining N.A. permission, the plaintiffs ought to have led some evidence to show that they had the financial capacity to make such payment or arrange for such funds within the time stipulated in the suit notice.
29.29 The Supreme Court in J.P. Builders (supra) has interpreted the expression "readiness" to mean financial capacity and "willingness" to mean the conduct of the plaintiff wanting performance and has held that generally readiness is backed by willingness. It has been further held that the continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific Page 132 of 139 C/FA/558/2002 JUDGMENT 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 fails to either ever 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. 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 circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract. Section 16(c) of the Specific Relief Act, 1963 mandates "readiness and willingness" on the part of the plaintiff and it is a condition precedent for obtaining relief of grant of specific performance. It is also clear that in a suit for specific performance, the plaintiff must allege and prove a continuous "readiness and willingness" to perform the contract on his part from the date of the contract. The onus is on the plaintiff.
29.30 This court in Ashwinkumar Manilal Shah (supra) has held that if in the evidence mere readiness is established and not willingness, the suit for specific performance is bound to fail. Similarly, if the willingness of the plaintiff to perform his part of the obligation is proved, but not readiness, no decree of Page 133 of 139 C/FA/558/2002 JUDGMENT specific performance can be granted.
29.31 In the facts of the present case, the plaintiffs have taken a stand that as per the sequence of obligations set out in the suit agreement, the stage for the plaintiffs to perform their part of the obligations had not been reached, and hence, they were not required to do anything till the defendant performed his part of the obligation under the suit agreement and obtained N.A. permission and title clearance. It is only thereafter that the plaintiffs were required to perform their part of the obligations under the suit agreement. In short, the plaintiffs have thrown the entire onus of performing obligations under the suit agreement on the defendant stating that till the defendant performed his part of the obligations under the contract, in terms of the sequence set out in the agreement, the plaintiffs were not required to do anything. Accordingly, except for issuing the suit notice on 26.11.1992, the plaintiffs have not done anything, including calling upon the defendant to obtain the non-agricultural permission etc. at any point of time after the execution of the suit agreement.
29.32 The suit agreement indicates that it is an agreement to sell with possession which was to be handed over to the plaintiffs after the non-agricultural permission is obtained. As noted hereinabove, if necessary, even a registered agreement to sell was to be executed in favour of a proposed co-operative housing society or any such person/persons as nominated by the plaintiffs after due understanding between the parties in a manner that the rights of neither party are in any manner prejudiced and in respect of all transactions they had to cooperate with each other. In the Page 134 of 139 C/FA/558/2002 JUDGMENT cross-examination of the plaintiff No.2, it has been brought out that they have not organised any proposed co-operative society. In the cross-examination of plaintiff witness No.3 Rajendrabhai Arvindbhai Patel, who used to work as an accountant with the plaintiff No.1 and is a witness to the suit agreement, it has been brought out that the plaintiff No.1 had executed various projects and has further admitted that the plaintiff No.1 used to get the procedure of obtaining N.A. permission through his persons and used to bear the cost of obtaining the N.A. permission.
29.33 In paragraph 7 of the suit agreement, the parties have agreed that in connection with the rights of the vendee in the subject land based on the agreement as well as in connection with all transactions as per the desire of the plaintiffs, the signatures required by them from time to time or applications, reply, kabulat (consent), evidence, writing, documents, affidavit, bond, declaration, agreements, presence etc. are required to be done or got done by the vendor in favour of the vendee without any delay without taking any additional consideration. On the basis of this agreement, the vendees may to prove their rights and are also entitled to enter into all kinds of transactions, signatures etc. on the basis of their rights under the agreement and the vendor shall not raise any objection or dispute in respect of the same. Thus, in view of the recitals contained in clause 7 of the suit agreement, it was always open for the plaintiffs to do the needful to assert their rights under the suit agreement including obtaining the signatures of the defendant on any application for the purpose of furthering their rights under the suit agreement. Therefore, if the vendor did not take any steps Page 135 of 139 C/FA/558/2002 JUDGMENT to obtain non agricultural permission, the plaintiffs if they so desired, could have obtained the signatures consent etc. of the defendant and obtained the same as even otherwise it was the plaintiffs who had to bear the expenditure of the same. However, the plaintiffs have not taken any steps in that regard nor even called upon the defendant to do the needful and have taken a stand that till the defendant performed his part of the obligations under the suit agreement, the stage for the plaintiffs to perform their obligations under the suit agreement had not reached. Thus, in effect and substance, according to the plaintiffs they were not required to lead any evidence to show readiness and willingness on their part as it was the obligation of the defendant to first obtain the N.A. permission and till that was done, nothing was required to be done by the plaintiffs.
29.34 In the opinion of this court, in view of the provisions of section 16(c) of the Specific Relief Act, the onus lies upon the plaintiffs to show that they are and were always ready and willing to perform their obligations under the contract. By taking a stand that the first obligation was to be performed by the defendant and till then they are not required to do anything, the plaintiffs are seeking to shirk the burden cast upon them to show their readiness and willingness to perform their obligations under the contract.
29.35 In R.C. Chandiok (supra) on which strong reliance has been placed by the learned counsel for the plaintiffs, the appellants therein had not only put in an advertisement in the newspapers about the existence of an agreement but also sent a letter dated 12.9.1956 declaring their readiness and Page 136 of 139 C/FA/558/2002 JUDGMENT willingness to pay the balance of the purchase price on the respondents procuring the sanction. They further directly made inquiries from the authorities concerned about the sanction. Besides, it was also established by the appellants therein that they had in their possession sufficient funds at the material time for payment of the balance sale price. It is in these circumstances, that the Supreme Court held that the requirements of section 16(c) of the Specific Relief Act stand satisfied, whereas in the facts of the present case, no evidence whatsoever has been adduced to show that the plaintiffs were always ready and willing to perform their obligations under the suit agreement and the entire burden is sought to be cast upon the defendant. In the opinion of this court, in the absence of any evidence to establish either readiness, namely the possession of sufficient funds or the ability to raise sufficient funds at the material time; or willingness, namely any steps taken to ensure that N.A. permission is obtained by either calling upon the defendant to do so; or offering to pay the expenditure that may be required to be incurred for that purpose; or obtaining the signatures and necessary consents of the defendant to obtain N.A. permission; it cannot be said that the plaintiffs have proved that they were ready and willing to perform their obligations under the suit agreement, as contemplated under section 16(c) of the Specific Relief Act.
30. It may be noted that on 21st August, 2018, at the stage when the concluding part of the judgment was being dictated, on behalf of the appellant No.2, an affidavit had been tendered stating that the appellants/plaintiffs are ready and willing to deposit with the Registry of this court, a sum of Rs.1,00,00,000/- (Rupees one crore) within a period of two Page 137 of 139 C/FA/558/2002 JUDGMENT weeks. It was submitted on behalf of the appellants that this would show that the appellants are and were always ready and willing to perform their part of the obligations under the suit agreement.
30.1 In the opinion of this court, the readiness, namely, the financial capacity has to be shown right from the date of execution of the suit agreement and not at such a belated stage when the court is dictating the concluding part of the judgment. In these circumstances, for the reasons recorded hereinabove, the court is of the view that the plaintiffs are not entitled to a decree of specific performance as prayed for. Point No.4 stands answered accordingly.
31. For the foregoing reasons, while the court does not agree with the findings of the trial court to the extent discussed hereinabove, the court is of the view that appellants have not made out any case for grant of the relief prayed for in the suit. The appeal, therefore, fails and is, accordingly, dismissed.
32. At this stage, Mr. Apurva Vakil, learned counsel for the appellants has submitted that during the pendency of the appeal, vide order dated 8.5.2002 made in Civil Application No.2144 of 2002, interim relief had been granted in terms of paragraph 3(A) of the application in favour of the appellants and that such interim relief be continued for a period of eight weeks from today so as to enable the appellants to approach the higher forum.
33. Having regard to the facts of the case, the request appears to be reasonable. Under the circumstances, interim Page 138 of 139 C/FA/558/2002 JUDGMENT relief granted earlier shall continue for a period of eight weeks from today.
(HARSHA DEVANI, J) (A. S. SUPEHIA, J) Z.G. SHAIKH Page 139 of 139