Andhra HC (Pre-Telangana)
Gonugunta Gopala Krishna Murthy vs Uppala Jwala Narasimham And Another on 8 August, 2001
Equivalent citations: 2001(5)ALD787, 2001(5)ALT788, AIR 2002 ANDHRA PRADESH 68, (2002) 1 CIVILCOURTC 101, (2001) 5 ANDHLD 787, (2002) 1 ICC 74, (2001) 5 ANDH LT 788, (2002) 2 CURLJ(CCR) 627, (2003) 1 BANKCLR 368
Author: Elipe Dharma Rao
Bench: Elipe Dharma Rao
ORDER
1. This CRP is filed against the order dated 26th April, 1996 in CFR No.1248 in OS No.18 of 1996 on the file of learned Subordinate Judge, Kandukur.
2. The above suit was filed for specific performance of contract praying the Court to pass a judgment and decree in favour of the plaintiff directing the defendants to execute a regular registered sale deed in respect of the suit schedule property after receiving the balance of sale consideration and deliver the vacant possession of the property to the plaintiff, failing which the plaintiff should be at liberty to get the same done through the process of the Court and further sought a direction to restrain the defendants, their men, heirs and assignees from raising any super structures in the schedule property by means of permanent injunction and to pay costs of the suit.
3. The above suit was filed on the basis of an agreement of sale dated 1-3-1996 entered into between the petitioner/ plaintiffand the respondents/defendants. The learned Subordinate Judge, before numbering the above suit, directed the plaintiff, in view of Explanation (i) to Section 16(c) of the Specific Relief Act, 1963, to prepare to deposit the sale consideration after filing of the written statement while directing the Sheristadar of the Court to register the plaint, if otherwise in order. Assailing the correctness of the order, the present CRP is filed by the petitioner/plaintiff.
4. The learned Counsel for the petitioner contends that the order of the Court below is unwarranted and that the learned Judge passed the order impugned even before numbering the suit at the threshold itself and while passing the order impugned, the learned Judge has not given any reasons. He further contended that Explanation (i) to Section 16(c) of Specific Relief Act does not empower the Court to give such a discretion at the stage of inception of the plaint, but what all required is to show the plaintiffs readiness and willingness to perform his part of the contract. Explanation (i) is an exception to the section, therefore it cannot be given full effect. In support of his contention, the learned Counsel for the petitioner relied on a decision of this Court in Sakamuri Sivaram Babu v. Parasa Sunjan Raju, 1992 (1) APLJ 154, wherein the order of the learned Subordinate Judge, Guntur returning the plaint in CFR No.11515 of 1991 with a direction to deposit the balance consideration for the purpose of entertaining the suit for specific performance of the agreement of sale is questioned. This Court while interpreting Explanation (i) to Section 16(c) of the Specific Relief Act, 1963 observed that in case where payment of money is involved, it is not that essential for the plaintiff" to actually tender or deposit the money, except when so directed by the Court and that the direction to deposit the money is as a matter of exception, the general rule being that there is no necessity of the money being deposited in order to prove one's own readiness or willingness to perform his part of the contract. It was further observed that the direction envisaged by the explanation as a measure of exception cannot be understood as one at the inception stage of the suit for purposes of registering the plaint and entertaining the suit and that this exception does not mean that the Court has jurisdiction to issue direction for deposit of balance consideration even at the inception stage of the proceedings i.e., at the stage of registering and entertaining the suit. What all required by Section 16(c) of the Act is that the plaintiff should aver performance of, or readiness and willingness to perform, his part of the contract and held that the order under appeal therein was without jurisdiction and accordingly set aside.
5. For better appreciation of the contentions, it is belter to extract Section 16(c)(i) of the Specific Relief Act, 1963.
"16. Personal Bars to Relief :--Specific Performance of a contract cannot be enforced in favour a person:
(a) xxxxx
(b) xxxxx
(c) Who fails to aver and prove that he has performed or has always been ready and wilting to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.
Explanation :--For the purpose of clause (c) :
(i) where a contract involved the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the Court;
(ii) xx
6. A reading of the above-said provision makes it clear that one has to prove that he has performed and always been ready and willing to perform the contract, but the defendant has failed or prevented or waived to perform the contract. In those circumstances Explanation (i) empowers the Court to direct the plaintiff to deposit the balance of money in the Court if the Court comes to the conclusion based on facts and circumstances of the case to prove the readiness and willingness of the plaintiff to perform his part of contract by depositing balance money in the Court. Explanation (i) supra is an exception to the above section where payment of money is involved and it is not essential for the plaintiff to actually tender to the defendant and he need not deposit in the Court any money at the time of presentation of the plaint, except when so directed by the Court. What all required is to prove that one's own readiness or willingness to perform his part of the contract. The direction envisaged in the explanation is a measure of exception and it cannot be understood at the stage of inception of the suit for the purpose of registering plaint and entertaining the suit, the amount has to be deposited. On the other hand, the Court is empowered to issue direction to deposit the balance consideration, if it is satisfied that the plaintiff is not in a position to get registration of the sale agreement, if decree is passed in his favour. At this stage, the Court, under the above-said provision, is entitled to direct the plaintiff to deposit the remaining sale consideration in the Court, but it cannot direct the plaintiff to deposit the balance sale consideration even at the stage of inception of the plaint or at the stage of registration and entertaining the suit.
7. The decision relied on by the learned Counsel for the petitioner squarely applies to the facts and circumstances of the case on hand. In the present case also, the learned Subordinate Judge at the inception stage i.e., even before numbering the suit the order impugned was passed. In view of the decision of this Court referred to above, the order impugned is liable to be set aside and it is accordingly set aside.
8. On the other hand, the learned Counsel for the respondent relied on a decision of this Court in Nagarapu Kanakaiah, 1988 (1) ALT 41, wherein it was held that there is no illegality to be interfered under Section 115 CPC in the direction by the lower Court to the plaintiff to deposit the balance of the sale consideration.
9. This observation was made by the learned single Judge of this Court in the above judgment on the background of the latest trend in filing false and vexatious suits for specific performance has been experienced by the Subordinate Judges. The learned Judge further observed that the Court has got ample power inspite of the averments contained in the plaint to direct the party to deposit the money in the event of entertaining a doubt about the bona fide nature of the plea that has been set up by the plaintiff in the plaint. The mere fact that averments have been made as contemplated under Section 16(c) of the Specific Relief Act, it cannot be said that Court has no power to order deposit of the amount. It is further observed that where the consideration amount is on high side and the amount of advance paid is low, it is desirable to put a check on the suitors in preventing them from filing false and vexatious suits and the agreement of sale need not be registered and it can easily be brought into . existence at any time with the active connivance of the scribe and the attestors. It is further observed that it is the duty of the Subordinate Judicial Officers to consider whether in a given case a direction can be given to deposit the balance to find out the truth or otherwise of the allegation that has been made in the plaint about the readiness of the plaintiff to perform his part of the contract. When the Subordinate Judge with experience found that false and vexatious suits are being filed, he is certainly at liberty to ask for deposit of money and when the discretion has been exercised by the Judicial officer in a given set of circumstances, it is not open to the party to approach the High Court and invoke Section 115 of the Code of Civil Procedure to revise that order and the High Court by giving a direction, cannot say that the officer has committed any illegality or the order that has been passed by him is without jurisdiction. The High Court must be conscious of the fact about the revisional powers conferred under Section 115 of the Code of Civil Procedure. In view of the Division Bench judgment the interpretation given by the learned single Judge cannot be applied to the facts of this case which held that Explanation (i) to Section 16(c) is an exception to the main section and that what all is required by Section 16(c) of the Act is that the plaintiff should aver and prove readiness and willingness to perform his part of the contract and he need not deposit the balance consideration of the agreement, therefore, held that the order under appeal therein was without jurisdiction and accordingly set aside.
10. Incidentally, the said Division Bench judgment was not brought to the notice of the learned Subordinate Judge, lest he could not have passed such an order. On the other hand, the direction given by the learned Subordinate Judge is prospective in operation i.e., the plaintiff should be prepared to deposit the sale consideration after filing of written statement in the suit.
Normally such a direction, which is prospective in nature, could not be granted. Coming to the Division Bench decision, it is true that Explanation (i) to Section 16(c) of the Act, is an exception to the main section, but exception is part and parcel of the main section. When the Legislature in its wisdom expressly conferred jurisdiction and power on the Courts to direct the plaintiff to deposit the balance amount in the interest of public i.e., to avoid vexatious and frivolous litigations, which is very much experienced by the Lower Judiciary. A broad interpretation must be given to the above section. If a narrow interpretation is given curtailing the power and jurisdiction of the Court, the intent and very purpose of incorporating Explanation (i) to Section 16(c) of the Act will be defeated. Therefore, it cannot be said that at any time of the trial of the suit, the Subordinate Judge has no jurisdiction to direct the plaintiff to deposit the amount to show his readiness and willingness to perform his part of the contract. Therefore, the judgment of the Division Bench can be distinguished to the extent that the Subordinate Court has no power to direct the plaintiff to deposit the remaining sale consideration at the time of inception or registration of the suit, but in view of the Explanation (i) to Section 16(1)(c) of the Act, the learned Subordinate Judge can direct the plaintiff to deposit the balance sale consideration, based on the facts and circumstances of the case, if he is satisfied, during the course of trial. Under these circumstances, I have no hesitation in holding that while exercising powers under Explanation (i) to Section 16(c) of the Special Relief Act, the Courts should not direct the plaintiff to deposit the balance consideration at the inception of the plaint before its registration. However, if during the course of trial of the suit, based on the facts and circumstances of the case, comes to the conclusion that a false and vexatious litigation has been filed, it is empowered to direct the plaintiff to deposit the balance sale consideration to prove his readiness and willingness to perform his part of the contract in the interest of justice.
11. For the foregoing reasons, the order passed by the learned Subordinate Judge directing the plaintiff to be prepared to deposit the sale consideration after filing of the written statement in the suit, is contrary to the spirit of Explanation (i) to Section 16(c) of the Specific Relief Act, 1963 and, therefore, the same is liable to be set aside and is accordingly set aside.
12. In view of the settled legal position, the CRP is allowed and the order impugned is set aside. No order as to costs.