Kerala High Court
Krishnan Kesavan And Ors. vs Kochukunju Karunakaran on 7 August, 1987
Equivalent citations: AIR1988KER107, AIR 1988 KERALA 107, (1987) KER LJ 1085
JUDGMENT S. Padmanabhan, J.
1. Defendants are the appellants and the revision petitioners. Munsiff, Pathanamthitta decreed O.S. No. 628 of 1979 for specific performance of an agreement for sale of immovable property entered into by the first defendant in favour of the plaintiff. Second defendant is the person in whose favour the first defendant entered into a subsequent agreement. Appeal was also dismissed and hence the second appeal. There was an order of injunction against the defendants from creating documents and disturbing the possession of the plaintiff. Plaintiff filed I.A. 12 of 1980 for taking action against the defendants under Order 39 Rule 2-A of the Code of Civil Procedure for having violated the injunction. I.A. 251 of 1980 was also filed for damages and prosecution. Both the petitions were allowed. Defendants 1 and 2, were ordered to be detained in civil prison for two months each and Rs. 500/- each was awarded as damages. C.M.A. No. 23 of 1982 filed by the defendants was dismissed and hence the Civil Revision Petition.
2. The property agreed to be sold is one obtained on assignment by the first defendant from the State, evidenced by Ext. A2 patta. The alleged agreement is oral and it was on 28-10-1979. Rs. 4,500/- was the sale consideration out of which Rs. 400/- was alleged to have been given as advance. Date of ex edition of sale was on 9-l 1-1979. Though the agreement was denied, both the courts concurrently found oil-evidence that the agreement is true and it was broken by the first defendant. So also the concurrent finding is that plaintiff was always and continued to be ready and willing to perform his part of the contract. The substantial questions of law on which notice was issued in Second Appeal is whether there is the requisite averment in the plaint for relief under Section 16(c) of the Specific Relief Act. One other substantial question of law permitted to be raised at the time of arguments was whether the alleged agreement for sale is hit by the provisions of Section 23 of the Contract Act.
3. Before entering the substantial questions of law the learned counsel for the appellants made an attempt to challenge the concurrent decrees on the merits by a contention that the evidence on which the courts below acted was meagre, insufficient and untrustworthy and that the courts below did not take note of the fact that courts are not expected to grant prayers for specific performance based on oral agreements and dependent on oral evidence alone. I do not think that there is any merit in that argument. What the Supreme Court has stated in Ouseph Varghese v. Joseph Aley, (1969) 2 SCWR 347 is only that rarely a decree for specific performance is granted on the basis of an agreement supported solely by oral evidence. That is only as rule of caution and prudence for the guidance of courts in appreciating the contentions and evidence for the purpose of granting or refusing reliefs. That is not a rule of law. An oral agreement is not something prohibited by law, No rule of law says that relief cannot be granted when the agreement and evidence supporting it are only oral and no documents are there to support. Oral agreements can be enforced by courts provided the evidence is sufficient to satisfy the conscience of the court. Both the courts below evaluated the pleadings, and evidence carefully and found the issue in favour of the plaintiff. No substantial question of law is involved justifying interference. Such an argument is not available also.
4. The argument based on Section 23 of the Contract Act is not a contention taken up in the pleadings or at any time before the trial court or the first appellate court. So far as necessary for the purpose of this case, the applicability of Section 23 is only in construing whether the agreement is one forbidden by law or if permitted would defeat the provisions of any law. If so the agreement will be void under Section 23.
5. Admittedly the land in question belonged to the Government and was assigned to the first defendant. Section 3 of the Kerala Government Land Assignment Act authorises the Government to prescribe conditions and limitations when assignments are made There is the rule making power also. Under Rule 8(1) of the Land Assignment Rules, assigned lands are heritable and alienable. But Rule 8(1A) provides that unoccupied lands assigned on registry shall not be alienable for a period of three years from the date of registry. Patta was issued on 12-7-1977 and the agreement of sale involved in this case was on 28-10-1979, within three years of the registry. This is the basis on which the plea under Section 23 of the Contract Act was raised. The plea is only a desparate one. The partial restriction in the rule is only regarding unoccupied lands given on registry. Here it is an admitted fact that the land was given possession to the first defendant by the Government more than 15 years before the registry under the Food Production Scheme. Therefore it is not unoccupied land. Further, the first defendant himself agreed later to sell the property to the second defendant evidenced by Ext. B1. The argument based on Section 23 of the Contract Act is therefore not only not available, but mala fide also.
6. The only other question to be considered is based on Section 16(c) of the Specific Relief Act which says 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. Explanation to that sub-section says that the plaintiff must aver performance of or readiness and willingness to perform, the contract according to its true construction.
7. Now the position of law in this respect is well settled. Though a Single Bench of this Court in an unreported decision held that even in the absence of a plea, readiness and willingness could be inferred, that view was overruled by a Division Bench in A.S.65 of 1967 which is also an unreported decision. An averment in the plaint with regard to the willingness and readiness of the plaintiff to perform his part of the contract is essential to sustain an action for specific performance. In the absence of such an averment the suit for specific performance cannot be decreed (Prabhakaran v. Bhavani AIR 1974 Ker 153). That was the position even before this rule obtained statutory recognition in 1963 by the introduction of Section 16(c) in the Specific Relief Act). Badruddin v. Tufail Ahmed, AIR 1963 Madh Pra 31 said that the court has no jurisdiction to relax that rule. Even when the defendant denies the contract or tries to evade performance, plaintiff will not be absolved from the liability of alleging and proving readiness and willingness and their continued existence (Saral Kumar v. Madhusudan AIR 1964 Cal 556). When the contract is repudiated by the defendant there are two courses open to the plaintiff. He can sue at law for damages on account of breach. If such a course is adopted the contract is put an end to. He can also elect to sue on equity for specific performance. When the latter course is adopted, since he is seeking equity' he has to comply with Section 16(c). The requirements of English and Indian law in this respect are the same. The averment of readiness and willingness must continue up to the date of decree (Ardeshir v. Flora Sassoon, AIR 1928 PC 208). In the absence of such an averment the cause of action for claiming specific performance is not there (Prem Raj v. D.L.F.H. & C. Ltd., AIR 1968 SC 1355. The reason is that specific performance is an equitable and discretionary relief. The person who approaches the court for such a relief will have to come with clean hands and a genuine claim. He who claims equity must do equity.
8. Then the question is only regarding the manner in which the provisions of Section 16(c) of the Specific Relief Act has to be complied with. In other words the question is whether compliance need be only in spirit or it must be in letter also or whether it need be in form or compliance in substance will suffice. Pursuant to the agreement plaintiff was put in possession and he is enjoying the property and paying tax. Patta for the property was also given to him -and he is in possession. Since the first defendant did not come forward in spite of repeated demands after making funds ready, plaintiff issued notice calling upon him to appear before the sub registry and execute the sale deed. All these facts were alleged in the plaint and the balance amount was deposited in court along with the suit. The allegations in the plaint and the conduct of the plaintiff clearly indicated that he was and is ready and willing to perform his part of the contract and he has called upon the defendant to perform his part but he either refused or avoided. The attitude of the defendant was only denial of the contract and not that he was ready but the plaintiff was net ready. There was no contention in the written statement or the appeal memo that plaintiff was not ready and willing to perform his part of the contract. No issue was also raised in that respect because no such controversy was there. A reading of the plaint will make it clear that the plaintiff was and is ready and willing to perform his part of the contract and he approached the court with that readiness and willingness. His continued readiness and willingness is also there. It is not disputed and both the courts found so also.
9. One of the cardinal principles of interpretation of statutes should be that without doing violence to the language of the provisions interpretation should be towards advancement of the cause of justice and not for its denial on technical grounds.
Compliance need only be substantial to the satisfaction of the court because what the court is interested is to find out truth and do justice between parties. It need be only to the spirit and substance and not to the letter and form. Though it is always desirable to make specific averments of readiness and willingness and also the fact of having demanded for performance but it was denied, it is enough if it is made clear in the recitals in the plaint that he was so willing and performance was demanded but refused. The averment that he has no objection to perform the contract in accordance with the decision of the court is a sufficient averment as contemplated in Section 16(c) of the Specific Relief Act (Badruddin's case, AIR 1963 Madh Pra 31); Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions regarding pleadings are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between the parties, and to prevent deviations from the course which litigation on particular cause of action must take (Ganesh Trading Co. v. Moji Ram, AIR 1978 SC 484). Such provisions as Section 16(c) of the Specific Relief Act should be used only as a step in aid of justice and not as a road block to justice as held in Kalipada Das v. Bimal Krishna Sen Gupta AIR 1983 SC 876. In Byomkesh v. Nani Gopal, AIR 1987 Cal 92 it was held that when a defendant, who participated in the trial without any objection regarding absence of plea of readiness and willingness and suffered a decree, raises such a plea in appeal the court should not throw out the plaint but should give him a reasonable opportunity to make good the defect. That means the defect even if it is there is only curable and not fatal. In this case there is no such defect also to be cured.
10. Forms 47 and 48 in Appendix-A to the Code prescribe the forms in specific performance suits. Those forms provide for specific pleadings of readiness and willingness and demand for performance and its refusal. But Order 6 Rule 3 says that compliance of forms as nearly as may be will be sufficient. The forms could only be read alongwith Order 6 Rule 3 and not word by word. Compliance of the forms is not what is absolutely necessary in the pleadings though it is always desirable in "order to enable the courts to arrive at the truth and do justice. Justice should not be allowed to suffer merely for the non-compliance in the highly technical sense. The Supreme Court said in Ramesh Chandra v. Chuni Lal AIR 1971 SC 1238 :
"Readiness and willingness cannot be treated as a strait-jacket formula. Those have to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned".
11. That principle was followed in Anwarula Haq v. Nizam Uddin, AIR 1984 All 136. It was held that readiness and willingness has to be adjudged in a broad perspective. It is enough if the averments indicate in substance a continuous readiness and willingness. Section 16(c) of the Specific Relief Act does not insist on using any specific set of words. Most of those decisions were considered and followed in Mani Amma v. Kololichalil Choyi 1983 Ker LJ 246. In view of the preponderance of authorities in support of the above view and in the absence of any decision which says that forms 47 and 48 in Appendix-A will have to be followed to the letter, I can only say in view of Order 6 Rule 3 that substantial compliance is sufficient. From what I have discussed earlier, substantial compliance is there and it was so understood by the defendants also. The argument to the contrary is only a last resort That cannot be accepted to reject a genuine claim on technical grounds. Here it is clear that performance was demanded and refused and plaintiff was and is always ready and willing to perform his part.
12. The C.R.P. is also without any merits. Both the courts below on the evidence came to the conclusion that the injunction order was wilfully violated not only by the execution of Ext.B1 but also by trespassing into the suit properly in the possession of the plaintiff and destroying the trees and plants. That is a flagrant inroad into the authority of the court. No litigant should be allowed to go free by deliberately flouting the orders of courts. That is a matter affecting the administration of justice and courts cannot have a light hearted approach in such matters. When both the courts have concurrently found on a detailed analysis of the evidence and the allegations that the defendants with scant respect fort he authority of the court flouted its orders purposely in different ways this court cannot interfere with those findings in revision. The actions of the defendants have a serious impact on the dignity and authority of court. Orders of courts are intended to be obeyed by parties. Effective checking of violations is necessary to keep up the prestige and image of the courts and it is also necessary for maintaining an orderly society in a democratic set up. A person who obtains an order from court is entitled to see that the order is enforced. Both the orders sought to be revised are in conformity with Order 39 Rule 2-A and there is no question of jurisdictional error or illegality or irregularity in the exercise of the jurisdiction.
The Second Appeal and C.R.R are dismissed with costs.