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MOHD. YAQUB versus SABBIR AND OTHERS

High Court of Judicature at Allahabad

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Mohd. Yaqub v. Sabbir And Others - SECOND APPEAL No. 3110 of 1980 [2006] RD-AH 20766 (8 December 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 30

SECOND APPEAL NO. 3110 of 1980

Mohammad Yaqub (since deceased)

Represented by Mohd. Arshad

And others - Plaintiff-Appellants

Versus

Shabbir and others - Defendant-Respondent

Hon'ble Sunil Ambwani, J.

1. Heard Shri R.K. Saxena assisted by Shri M.A. Siddiqui for appellant and Shri M.A. Quadeer for respondents.

2. The plaintiff-appellant filed OS No. 165 of 1976 for specific performance of agreement dated 6.4.1967 and in alternative for re-fund of the earnest money. The suit was  decreed by the trial court on 8.5.1974. The Civil Appeal No. 277 of 1974 was allowed on 16.7.1980 and suit was decreed for  return of earnest money of Rs. 950/- out of total sale consideration of Rs. 1400/- with 6% interest.

3. In the plaint presented on 2.4.1970 the plaintiff alleged that during the pendency of OS No. 253 of 1963 for partition the defendant agreed on  6.4.1967, to sell a portion of the house for Rs. 1400/- claimed by her in suit. The plaintiff paid Rs. 250/- in advance and further paid Rs. 700/- on 14.8.1969 for  which a receipt of Rs. 950/- was given by the  defendant  leaving a balance payment of Rs. 450/- for execution of sale deed. In para 6 of the plaint it was stated that the partition suit was decided and  possession was given to the defendant on 12.11.1969. Thereafter whenever the plaintiff made requests for execution of the sale deeds. The defendant avoided to talk on the matter. A registered notice was sent to her on 9.3.1970 fixing 26.3.1970 for execution of the sale deed. Before the date fixed for execution of the sale deed, a reply was given with the false statement denying the execution of the agreement, giving rise to the necessity of filing of the suit. In para 7, it was stated that cause of action to file the suit arose on the execution of agreement on 6.4.1967 and thereafter on 11.3.1970 when the defendant refused to execute the sale deed. In the statement recorded on 28.2.1974 the plaintiff Mohd. Yaqoob (PW-2) stated in para 2 that he was always ready and willing to comply with the conditions of agreement; to pay the balance sale consideration and to get the sale deed registered.

4. In the written statement the defendant denied the execution of the agreement. The trial court found  the agreement to be proved. The trial court did not frame any issue as to whether necessary facts for readiness and willingness to perform the part of the contract required in  Section 16 (c) of the Specific Relief Act 1963, was  averred in the plaint. Only two issues were framed (1) whether defendant entered into an agreement to sell the house of suit on 6.5.1967; and (2) the relief to which the plaintiff is entitled. After recording the findings that the agreement was proved, the suit for specific performance of contract was decreed on payment of balance sale consideration of Rs. 450/-.

5. The appellate court considered the grounds taken in appeal of  compliance of Section 16 (c) of the Specific Relief Act. Relying upon the judgments in Mahmood Khan and another vs. Ayub Khan and others, AIR 1978 Alld. 463 and Kandev Nath Chaudhari vs. Devendra Kumar Nath AIR 1979 Guwahati 65 the appellant court held that since the necessary averments as required under Section 16 (c), were not made in the plaint, the plaintiff is not entitled to the relief of specific performance of contract.

6. In para 13 of the judgment the appellant court observed that the appellant did not dispute before the Court in appeal that the agreement  bears his thumb impression. He however stated that Jaibunisha had taken a loan of Rs. 250/-,  and had signed on a paper. It was not clear as to when and how, the  thumb impression was taken on the agreement. The appellate court upheld the findings of the trial court that the agreement was proved and that defendant had received Rs. 950/- towards part of the sale consideration.

7. The Second Appeal was admitted on ground Nos. (ii) and (v) as follows:-

"ii. Because omission to use the words and phraseology as used under Section 16 of the Specific Performance Act is not fatal to the suit. It is sufficient that the language used in the plaint shows that the plaintiff has throughout been ready and willing to perform his part of contract. From the facts stated in the plaint, it is abundantly clear that the plaintiff-appellant had throughout been ready and willing to perform his part of contract, the court below has acted illegally in refusing the relief of specific contract of sale merely because the omission to use the particular word and phraseology.

(v) Because the appellant has moved an application for the amendment of the plaint, which under the facts and circumstances of the case ought to have been allowed, the court below has acted illegally in rejecting the amendment application."

8. Learned counsel for the appellant has relied upon the judgments in Surya Narain Upadhyay vs Ram Roop Pandey and others AIR 1994 SC 105,; Aniglase Yohannan vs. Ramlatha and others, (2005) 7 SCC 534; H.P. Pyarejan vs. Dasappa (Dead) by LRs and others, (2006) 2 SCC 496; and  Mst. Sugani vs. Rameshwar Das and another 2006 (4) ADJ 687 (SC)  in support of the grounds taken in appeal, which are found to be substantial questions of law.

9. The strict requirement in law, in  the pleading in terms of Section 16 (c) read with Explanation (ii), of the Specific Relief Act  has undergone a change. In  Aniglase Yohannan's case (supra) the Supreme Court observed that this change started from R.C. Chandiok vs. Chuni Lal Sabharwal, AIR 1971 SC 1238, in which the Supreme Court held that readiness and willingness could not be treated as a straightjacket formula and had to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned. In Syd Dastagir v. T.R. Gopalakrishna Setty, (1999) 6 SCC 337, the Supreme Court further observed that in construing a plea in any pleading, courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one's case for a relief. Such an expression may be pointed, precise, sometimes vague but still it could be gathered what he wants to convey through only by reading the whole pleading, depending on the person drafting a plea. In India most of the pleas are drafted by counsel, hence the differences in  of pleas inevitably differ from one to the other. To gather true spirit behind a plea it should be read as a whole. This does not distract one from performing his obligations as required under a statute. But to test whether he has performed his obligations, one has to see the pith and substance of a plea. Where a statute requires any fact to be pleaded,  then that has to be pleaded may be in any form. The same plea may be stated by different persons through different words; then how could it be constricted to be only in any particular nomenclature or word. Unless the  statute specifically requires a plea to be in any particular from, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16 (c)of the Specific Relief Act, 1963  does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of ''readiness and willingness', has to be in spirit and substance and not in letter and form. So to insist for a mechanical production of the exact words of a statute is to insist for the form rather than the essence. So the absence of form cannot dissolve an essence if already pleaded.

10. In the same judgment it was observed as follows:

"It is thus clear that an averment of readiness and willingness in the plaint is not a mathematical formula which should only be in specific words. If the averments in the plaint as a whole do clearly indicate the readiness and willingness of the plaintiff to fulfill his part of the obligations under the contract which is the subject-matter of the suit, the fat 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.

The basic principle behind Section 16 (c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief."

11. Shri M.A. Quadeer appearing for defendant-respondent has  relied upon judgment of Division Bench of this Court in Mohd. Khan vs. Ayub Khan AIR 1978 Alld. 463. The judgment takes notice of R.C. Chandiok's case. It half steps over the judgment in stating that on the facts and circumstances of that case (R.C. Chandiok's case), it was  held that there was nothing to indicate that the appellants at any stage were not ready and willing to perform their contract. This case, therefore, is not of much help to the respondents. The Division Bench noticed Form 47 of Appendix ''A' of the First Schedule of Civil Procedure Code, which provides for strict requirement of the pleading in a particular form.

12. The change in law is  after Aniglase Yohannan's case cannot be ignored, the Supreme Court has taken the same view in H.P. Pyarejan's case (supra) and then in Mts Sugani's case (supra). The last of these judgments was delivered on 25.4.2006. The submission of Shri M.A. Qadeer, that the Court must follow the Division Bench in Moh. Khan's case, and that the Supreme Court did not consider Form 47 of Appendix ''A' of the First Schedule of Civil Procedure Code, fails to take into account the obvious shift in law. The judgments of Supreme Court are binding precedents on all the Courts in the land. It is not open to the High Court to rely upon the Division Bench judgments of its Court just because the judgments of Supreme Court do not mention about a form prescribed, to draft pleadings.

13. Coming to the facts of the case I find that it was clearly pleaded by the appellant that on 12.11.1969 the defendant got possession of the portion agreed to be sold to the plaintiff. The plaintiff made several requests for execution of the sale deed, which were avoided by the defendant on which a registered notice was sent on 9.3.1970 fixing 26.3.1970 for execution but before the date could arrive, the defendant by her reply dated 11.3.1970 denied the execution agreement giving rise to the suit  on 2.4.1970. The plaintiff then entered the witness box and clearly stated that he was ready and willing to perform his part of the contract and was always prepare to pay the balance sale consideration and execute registered document for sale.

14. The averment in the plaint and the conduct of the parties clearly proved that the plaintiff was ready and willing to perform the part of the contract. The strict requirement in law in pleading is no longer necessary. The court has to read the plaint & other material and to find the  intention of the parties. When the Court finds that the plaintiff has been ready and willing to perform his part of the contract and that the  defendant denies the execution of agreement itself, which is then proved by admissible evidence, the Court could be acting within its discretion to grant the decree specific performance of contract.

15. The first substantial question of law is returned in favour of the plaintiff-appellant, and in view thereof the second question need not be decided.

16. The second appeal is allowed. The judgment and decree dated 16.7.1980 passed by first appellate court is set aside and judgment and decree of the trial court is restored. The plaintiff appellant is also entitled to Rs. 5,000/- as costs of these proceedings from the defendant-respondents.

Dt. 8.12.2006

RKP/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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