Document Fragment View

Matching Fragments

5. In answer to the submissions of counsel for defendants, Mr. Rajiv bhalla, Advocate, counsel for the plaintiff urged that the defendants are not entitled to urge the plea of res-judicata or the suit being barred under Order 2 Rule 2, Code Of Civil Procedure, or being barred by time because the pleas have not been properly raised by the pleadings or in the issues. He further contended that the legal representatives cannot take a plea inconsistent with the pleas taken by the deceased-defendant in his written statement. He contended that if a legal representative wants to raise a new plea which the deceased could have taken, he must get himself impleaded in his personal capacity and only then, he can assert his independent title to the property. Mr. Bhalla contended that the cause of action in the earlier suit differs from the one in the present suit which is for specific performance of agreement of sale and so, it is not barred under Order 2 Rule 2, Code of Civil Procedure. In regard to the plea of the res-judicata, counsel contended that the earlier suit was dismissed being not maintainable and thus, any finding recorded therein cannot operate as res-judicata. As regards the allegation of suit being barred by time, counsel contended that the suit has been filed within three years from the date of refusal of the defendants to execute the sale-deed and so, the suit is within time. Mr. Bhalla contended that at no stage the plaintiff waived her right to sue for specific performance of the contract. In the end, he contended that merely because suit has been filed on the last day of limitation, is no ground to deny the relief of specific performance particularly when under the law of limitation, the period prescribed is three years from the date the plaintiff has notice that performance is refused.

6. On going through the record and hearing the counsel for the parties at length. I am of the view that the Courts below have acted erroneously in not permitting the legal representatives to raise the plea of res-judicata or suit being barred under Order 2 Rule 2, Code of Civil Procedure, and being barred by time. Sub-rule (2) of rule 4 of Order 22, Code of Civil Procedure, authorises a legal representative to take any defence appropriate to his character as legal representative of the deceased-defendant. In other words, it authorises a legal representative to file additional writ ten statement, raising all pleas which the deceased-defendants had or could have raised except those which were personal to the deceased. Under the rule, there is no prohibition for raising pure questions, of law which go to the very root of the matter and are in the nature of questions of jurisdiction. In Vidya Wati v. Manmohan and Ors., (1996-1)112 P.L.R. 97 (S.C.), the apex Court reiterated the view taken in earlier two decisions, namely, Bal Krishan v. Om Parkash and Anr., A.I.R. 1986 SC 1952 and Jagdish Chander Chatterjee and Ors. v. Sri Krishan and Anr., 1973(1) S.C.R. 850, and held that all rights and defences available to the deceased-defendant become available to the legal representatives. In the present case, it is not the case of the plaintiff that the pleas on merits taken by the legal representatives are contrary and inconsistent to the pleas taken by the deceased-defendant. Deceased-defendants in the written statement specifically urged that the plaintiff had not been ready and willing to perform her part of the contract, whereas they had always been ready and willing to execute the sale-deed on receipt of balance sale consideration. The legal representatives have not departed from or contradicted the position taken by the defendants whose legal representatives they are. In my view, there is no prohibition for taking additional pleas by the legal representatives regarding res-judicata, suit being barred by time or barred under Order 2 Rule 2, Code of Civil Procedure, being pure questions of law. The law permits legal representatives to raise all contentions except those which are personal to the deceased. The pleas sought to be raised being not personal to the deceased, should have been allowed to be raised.

9. Regarding the plea of res-judicata, counsel for the defendants contended that to get a decree for specific performance, condition precedent is the proving of readiness and willingness on the part of plaintiff to perform her part of the contract. Counsel contended that in the former suit for injunction, one of the issue was in regard to willingness on the part of the plaintiff to perform her part of the contract. He contended that the said issue was decided against the plaintiff and it was held that the plaintiff was not ready to perform her part of the contract. Counsel contended that the findings on this issue would operate as res-judicata in the suit for specific performance. Against this, counsel for the plaintiff contended that in the suit for injunction, it was not necessary for the plaintiff to prove her readiness and willingness to perform her part of the contract and so, the finding given on the said issue in the suit for injunction would have no effect in the suit filed for specific performance.

10. The principle contained in Section 11, Code of Civil Procedure, is that a Court shall not try any suit or issue in which the matter, directly and substantially in issue, has been decided in an earlier suit between the same parties. In Satydhyan Ghosal and Ors. v. Smt. Deorajin Debi and Anr., A.I.R. 1960 SC 941, their Lordships of the Supreme Court have held that the principle of res-judicata is based on the need of giving a finality to judicial decision. When a matter-whether on the question of fact or question of law has been decided between the parties in one suit or proceedings and the decision is final, either because no appeal was taken to the higher Court or because the appeal was dismissed or no appeal lies, neither party will be allowed in a future suit or proceedings between the same parties to canvas the matter again. In Syed Mohd. Salie Labbai (Dead) v. Mohd. Hanifa (Dead), A.I.R. 1976 SC 1569, the Hon'ble Supreme Court held that the best method to decide the question of res-judicata is, first to determine the case of the parties as put forward in their respective pleadings of the previous suit and then to find out as to what had been decided in the judgment which operates as res-judicata. A reading of the judgment dated 2.5.1983 rendered in suit for injunction shows that in her plaint, after setting out terms and conditions contained in the agreement, plaintiff alleged that "she was always ready and willing to perform her part of the contract and she is still ready and willing to perform her part of the contract but defendants 1 to 3 have never expressed their readiness and willingness to perform their part of the agreement". Defendants in their written statement, as is evident from para 2 of the judgment, denied that they were not ready to perform their part of the contract as alleged by the plaintiff. On the pleadings of the parties, trial Court framed as many as five issues and issue No.3 was "Whether the plaintiff was and is willing to perform her part of the contract ? OPP." Trial Court decided issue No.3 against the plaintiff and held that 'it is proved that defendants were ready and willing to perform their part of the contract but on the other hand plaintiff has not produced any evidence to prove that she made any efforts with defendants 1 to 3 to get permission for the sale of land. Therefore, I decide this issue against the plaintiff that she was not ready to perform her part of the contract." Trial Court on the basis of finding on issue No.3 and on other issues, out of which one was in regard to maintainability of the suit, dismissed the suit clause (c) of Section 16 of the Specific Relief Act lays down that performance of contract cannot be enforced in favour of a person who has not averred in the pleadings and who has not proved that he on his part was ready and willing to perform his part of the contract, in its essential terms excepting only when the plaintiff proves that defendant himself waived or prevented the performance of the terms of the contract. Clause (c) of Section 16 reads as under :-