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MAHBUBUR RAHMAN versus AHSANUL GHANI

High Court of Judicature at Allahabad

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Mahbubur Rahman v. Ahsanul Ghani - SECOND APPEAL No. - 931 of 1995 [2007] RD-AH 18731 (10 December 2007)

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HIGH COURT OF JUDICATURE AT ALLAHABAD

Judgment reserved on 27.9.2007

Judgment delivered on 10.12.2007

Second Appeal No. 931 of 1995

Mahboobur Rahman Vs. Ahsanul Ghani

~~~~

Hon. Dilip Gupta, J.

The plaintiff has filed this Second Appeal for setting aside the judgment and decree passed by the learned IX Additional District Judge, Kanpur Nagar by which the judgment and decree of the Trial Court has been set aside and the Original Suit that had been filed by the plaintiff for execution of the sale-deed has been dismissed.

The Original Suit had been filed by the plaintiff with the allegation that the defendant, who was the owner of house bearing No. 102, Faithfulganj, Kanpur Nagar executed an agreement dated 16/17-4-1975 to sell the house to the plaintiff for a consideration of Rs. 30,000/- and earnest money of Rs. 15,000/- had also been paid in cash; that the plaintiff served a notice dated 6.5.1979 on the defendant to seek permission from the Competent Authority under the provisions of Section 27 of the U.P. Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the 'Ceiling Act') and even though the said notice was served on the defendant on 17.5.1979, the defendant did not seek permission and execute the sale-deed and that the defendant sent a reply dated 6.7.1979 feigning ignorance of the agreement and stated that the signatures of the defendant may have been obtained by deceitful means on some papers. The suit was accordingly filed with the relief that the defendant may be directed by a mandatory decree to execute the sale-deed in respect of the disputed house after securing the remaining amount of Rs. 15,000/- from the plaintiff.

A written-statement was filed on behalf of the defendant mentioning therein that the plaintiff was occupying the disputed house as a tenant of the defendant on a monthly rent of Rs. 200/-; that the defendant had never executed the alleged agreement dated 16/17-4-1975 and nor had he received the sum of Rs. 15,000/- in cash towards earnest money; that in fact the defendant was a guarantor to the extent of Rs. 50,000/- in respect of the loan taken by M/s. Adam Textiles from the State Bank of India and the disputed house was hypothecated to the State Bank which had threatened the defendant to discharge the liability under the loan and as the plaintiff and the defendant were well known to each other, the plaintiff persuaded the defendant to give possession of the portion of the disputed house on a monthly rent of Rs. 200/- to save himself from the liability and also agreed to defend the defendant in the event the Bank filed a suit against the defendant and with this objective the plaintiff took the defendant to his counsel Sri Mohammad Aslam Ansari who obtained the signatures of the defendant on some unwritten papers and the alleged agreement appears to have been fabricated and forged on the said papers; that the property was worth Rs. 1,00,000/- and could not have been agreed to be transferred to the plaintiff for paltry sum of Rs. 30,000/- and that it is only through the notice dated 6.5.1979 that the defendant for the first time learnt about the plaintiff's deception and forgery and accordingly sent the Registered notices dated 6.7.1979 and 17.8.1979 to the plaintiff for supplying the alleged agreement but that was not supplied.

On the pleadings of the parties, the Trial Court framed the following issues:-

1.Whether the suit is under valued and court fee paid is insufficient?

2.Whether the suit is barred by time?

3.Whether the agreement is forged as alleged?

4.Whether the agreement was got affected by fraud, misrepresentation as alleged in paragraph Nos. 12 to 15 of written statement?

5.To what relief, if any, is the plaintiff entitled?

The Trial Court, while deciding issue No.1, noticed that the plaint was amended and after the amendment of the valuation clause the plea did not survive. In respect of issue No.2 the Trial Court held that the suit was not barred by limitation. Issue Nos. 3 and 4 were decided together by the Trial Court. It was held that the defendant could not prove that the agreement was forged and had been obtained by playing fraud. Issue No.5 was decided in favour of the plaintiff and the suit was accordingly decreed for specific performance of contract.

The defendant filed an Appeal against the said judgment and decree in this Court being First Appeal No. 54 of 1982. This Appeal was subsequently transmitted to the District Court.

During the pendency of the Appeal an amendment application under Order 6 Rule 17 of the Code of Civil Procedure (hereinafter referred to as the 'CPC') was presented before the Court on 30.7.1982. The amendment in the plaint that was sought was for adding paragraphs 5-A, 5-B and 5-C which are as follows:-

"(5-A) That the defendant did not obtain the permission of the Competent Authority under the Urban Land Ceiling and Regulation Act, 1976 and as such the time stipulated under the agreement for the performance of the agreement i.e. One month from the date of obtaining the permission (and its communication to the plaintiff) has not yet expired.

(5-B) That the plaintiff has been always ready and willing and still is to perform his part of the contract of which the defendant had notice and had always been keeping the balance of the amount payable, ready with him.

(5-C) That the plaintiff had always been making the defendant specifically to perform his part of the agreement but the defendant has not done so."

This amendment application was rejected by the order dated 28.2.1995.

The Lower Appellate Court allowed the Civil Appeal and set aside the judgment and decree of the Trial Court and dismissed the suit filed by the plaintiff.

The Lower Appellate Court held that the specific performance of the contract could not be enforced in view of the provisions of Section 16 (c ) of the Specific Relief Act, 1963 (hereinafter referred to as the 'Act') as the plaintiff had failed to aver and prove that he has performed or has always been ready and willing to perform the essential term of the contract which are to be performed by him; that the suit was barred by limitation; that the burden was on the plaintiff to prove that the defendant had executed the agreement to sell in favour of the plaintiff which burden he failed to discharge; that if the agreement had been executed in the year 1975 as alleged by the plaintiff, then there was no reason for him to wait for a period of four years in serving the notice and filing the suit.

At the time of the admission of the Second Appeal, the following substantial questions of law were framed:-

"Whether the Lower Appellate Court is justified in dismissing the suit for non-compliance of provisions of Sections 14 and 16 of Specific Relief Act without any pleading or issue on said point?

Whether the Lower Appellate Court ought to have framed the issue if relevant and ought to have remitted it to Trial Court?

I have heard Sri M.A. Qadeer, learned counsel for the appellant and the learned counsel appearing for the respondent.

Learned counsel for the appellant submitted that the compliance of "readiness and willingness" under Section 16(c) of the Act has to be in spirit and substance and not in letter and form and if the entire averments in the plaint are taken into consideration, then it would be evident that the plaintiff had complied with the provisions of Section 16 (c) of the Act and in support of his contention he has placed reliance upon the decisions of the Supreme Court in Syed Dastagir Vs. T.R. Gopalakrishna Setty (1999) 6 SCC 337 and Aniglase Yohannan Vs. Ramlatha and others (2005) 7 SCC 534. He further submitted that the defendant also had not taken this plea in the written-statement and in any view of the matter in the Civil Appeal an amendment application was moved to incorporate this plea but the amendment application was wrongly rejected by the Lower Appellate Court.

Learned counsel for the respondent, however, submitted that in view of the provisions of Section 100 CPC the Appeal can only be heard on the substantial question of law formulated by the Court and that there is no illegality in the findings recorded by the Lower Appellate Court.

As seen above, the substantial question of law that had been formulated by this Court at the time of the admission of the Second Appeal was as to whether the Lower Appellate Court was justified in dismissing the suit for non-compliance of the provisions of Sections 14 and 16 of the Act without there being any pleading or issue on the said point and in such circumstances whether an issue should have been framed and the matter remitted to the Trial Court for a decision.

In order to appreciate the contention advanced by the learned counsel for the parties, it would be necessary to examine the provisions of Section 16(c) of the Act along with the explanation and the same is as follows:-

"16. Personal bars to relief.- Specific performance of a contract cannot be enforced in favour of a person-

(a).......................................

(b).......................................

(c) 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.- For the purposes of clause (c),-

(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;

(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction."

Learned counsel for the appellant has placed reliance upon the decisions of the Supreme Court in Syed Dastagir (supra) and Aniglase Yohannan (supra) in support of his contention that readiness and willingness has to be in spirit and substance and not in letter in form. This contention has been advanced because of the fact that in the plaint there is no averment at all about readiness and willingness. It was only in the Civil Appeal that an amendment application was moved to incorporate this plea but that amendment application was rejected by the Court. The relevant portion of the judgment of the Supreme Court in Syed Dastagir on which reliance has been placed by the learned counsel for the appellant is as follows:-

"So the whole gamut of the issue raised is, how to construe a plea specially with reference to Section 16(c) and what are the obligations which the plaintiff has to comply with in reference to his plea and whether the plea of the plaintiff could not be construed to conform to the requirement of the aforesaid section, or does this section require specific words to be pleaded that he has performed or has always been ready and is willing to perform his part of the contract. 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 aforesaid difference of pleas which inevitably differ from one to the other. Thus, 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 a statute specifically requires a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16(c) 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.

Returning to the facts of the present case we find the aforesaid pleading recites that all balance amount of the consideration under the contract has been paid by the plaintiff of which there is an endorsement by the defendant except the balance amount of Rs. 120 about which also there is a specific plea that he has tendered the same in the Court. It is true that in the pleading the specific words "ready and willing to perform" in this nomenclature are not there but from the aforesaid plea, could it be read that the plaintiff was not ready and willing to perform his part of that obligation? In other words, can it be said that he has not pleaded that he is "ready and willing" to perform his part? Courts cannot draw any inference in the abstract or to give such hypertechnical interpretation to defeat a claim of specific performance which defeats the very objective for which the said Act was enacted. The section makes it obligatory to a plaintiff seeking enforcement of specific performance that he must not only come with clean hands but there should be a plea that he has performed or has been and is ready and willing to perform his part of the obligation. Unless this is there, Section 16 (c) creates a bar to the grant of this discretionary relief. As we have said, for this it is not necessary to plea by any specific words, if through any words it reveals the readiness and willingness of the plaintiff to perform his part of the obligation then it cannot be said there is non-compliance of the said section.

It was held in the case of R.C. Chandiok v. Chuni Lal Sabharwal AIR 1971 SC 1238 that readiness and willingness cannot be treated as a strait-jacket formula. This has to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned. Finally, we have no hesitation to hold that the pleading as made by the plaintiff not only shows his readiness and willingness to perform his part of the obligation under the contract but by tendering the total amount shows he has performed his part of the obligation."

In Aniglase Yohannan (supra) on which reliance has also been placed by the learned counsel for the appellant, the Supreme Court observed as under:-

"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 specif 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.

Section 16 (c) of the Act mandates the plaintiff to aver in the plaint and establish the fact by evidence aliunde that he has always been ready and willing to perform his part of the contract. On considering almost an identical fact situation it was held by this Court in Surya Narain Upadhyaya v. Ram Roop Pandey AIR 1994 SC 542 that the plaintiff had substantiated his plea."

The decision of the Supreme Court in Syed Dastagir (supra) has to be examined in the context of the averments made in the plaint which was under consideration before the Supreme Court. It was pleaded that the agreement was for execution of the sale-deed for a sum of Rs. 9500/- out of which Rs. 5,000/- was agreed to be adjusted towards the mortgaged amount of Rs. 5,000/- and Rs. 500/- was paid towards advance payment of the sale price. Thus only Rs. 4,000/- remained to be paid out of which Rs. 3880/- had been paid on various dates and only Rs. 120/- remained to be paid but the defendant was not accepting the same, as a result of which the plaintiff deposited the said amount in the Court on the date of the filing of the suit. It is in this context that the Supreme Court observed that all the balance amount of the sale consideration had been paid by the plaintiff of which there was an endorsement by the defendant except the balance amount of Rs. 120/- about which also there was a specific plea that the amount had been tendered in the Court. The Supreme Court, therefore, held that the pleadings not only showed readiness and willingness to perform his part of the obligation under the contract but by tendering the total amount he had performed his part of the obligation.

In Aniglase Yohannan (supra) the Supreme Court observed that the basic principle behind Section 16 (c ) read with Explanation (ii) is that the person seeking benefit of specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief.

Thus, in order to appreciate the contention advanced by the learned counsel for the appellant, it would be necessary to reproduce the averments made in the plaint and the same are as follows:-

"1. That the defendant is the owner of house bearing no. 102 Faithfulganj, Kanpur. The plaintiff is occupying the said house.

2. That for various purposes and specially for the purpose of carrying on his business and also for paying share money of the other heirs of his father, the defendant needed money. The defendant approached the plaintiff and demanded Rs. 15,000/-, immediately and agreed that the defendant shall execute sale of his house no. 102 Faithfulganj, Kanpur, in favour of the plaintiff for a sum of Rs. 30,000/-. An agreement dated 16/17.4.1975 was executed between the parties. The defendant received and admitted the receipt of Rs. 15,000/- in cash from the plaintiff and further agreed that he will execute a deed of sale in respect of his house no. 102 Faithfulganj, Kanpur, in favour of the plaintiff for a sale consideration of Rs. 30,000/-.

3. That subsequent to the execution of the said agreement, Urban Land (Ceiling & Regulation) Act 1976 was promulgated. Section 27 of the said Act, prohibited transfer of property. It was specifically laid down that without the previous permission in writing from the Competent Authority, no transfer of any property could be made.

4. That thereafter the defendant should have sought requisite permission from the competent authority appointed under the aforesaid Act No. 33 of 1976. The plaintiff also requested the defendant but the said request went unheeded.

5. That the plaintiff served notice dated 6th of May 1979 on the defendant to seek permission and execute sale deed. The said notice was personally served on the defendant on 17th of May 1979. By reply dated 6th of July 1979 the defendant feigned ignorance of the agreement; he needed the copy of the agreement and the documents so that he might send a proper reply; that in the year 1976 a suit was filed by the State Bank of India against Adam-Textiles in which he was defendant no.5 and the said suit is pending; and the signatures of the defendant were secured and obtained by deceitful means on some papers. All these are false pretexts taken by the defendant.

6. That the defendant is bound to execute the deed of sale of the aforesaid house after seeking necessary permission from the various authority as per the agreed terms. As the defendant has failed to do so, hence the suit.

7. That cause of action for the suit arose on 16/17.4.1975 when the defendant entered into the agreement and secured Rs. 15,000/- from the plaintiff and subsequently when the Act No. 33 of 1976 was promulgated and restrictions were put on the transfer of property, when the defendant was called upon to seek exemption from the Competent Authority and lastly in July 1979 when the period of notice expired and when the defendant failed to seek the exemption and execute the deed of sale in favour of the plaintiff.

8. That as the property is situate within the jurisdiction of this Court and the transaction has also been made within the jurisdiction of this Court, this Hon'ble Court is competent to try the suit.

9. That for the purposes of jurisdiction and valuation the suit is valued at Rs. 31,800/- on which a court fee of Rs. 2807.50 is paid.

A perusal of the aforesaid averments made in the plaint show that after the alleged execution of the agreement dated 16/17-4-1975 the plaintiff kept quite for a long period of more than four years and it was only on 6.5.1979 that he sent the notice to the defendant for seeking permission and executing the sale-deed but as the defendant had failed to do so, the suit was filed. It is, therefore, clear that the plaint does not mention what steps had been taken by the plaintiff during the long period of four years from the date of execution of the alleged agreement dated 16/17-4-1975 up to the date of notice dated 6.5.1979. It needs to be mentioned that even according to the case taken in the plaint, it was not necessary to obtain prior permission of the Competent Authority to transfer the property as the agreement was prior to the coming into force of the Ceiling Act and it is for this reason that the agreement does not also make any mention of prior permission from the Competent Authority under the Ceiling Act. There is only a general reference that the sale-deed would be executed within one month after permission was granted. It also needs to be mentioned that the agreement to sell was not registered as at the relevant time when the alleged agreement dated 16/17-4-1975 was executed there was no requirement in law for registering the said agreement and it was subsequently that it was made compulsory for registration of agreement to sell. The suit was filed in the year 1979 when the registration of the agreement to sell had been made compulsory. There is nothing in the plaint which may indicate that the plaintiff had performed or has always been ready and willing to perform the essential terms of the contract. The decisions of the Supreme Court in Syed Dastagir (supra) and Aniglase Yohannan (supra), therefore, do not help the plaintiff-appellant.

Section 16 (c) of the Specific Relief Act speaks of readiness and willingness. The distinction between readiness and willingness is that the former has reference to financial capacity while the latter on the conduct of the plaintiff wanting specific performance. ' Willingness' is merely a mental process while 'readiness' has something to do with translating that will into action and is preceded by necessary preparation of being in a position to be ready. This is what was observed in Bishambhar Nath Agarwal Vs. Kishan Chand AIR 1998 All. 195. A person may, therefore, be ready but if the will to do it is not there his willingness is lacking as was observed in Bijai Bahadur Vs. Shiv Kumar AIR 1985 All. 223.

In N.P. Thirugnanam (D) by L.Rs. Vs. Dr. R. Jagan Mohan Rao & Ors., AIR 1996 SC 116 the Supreme Court observed :-

"............ Section 16(c) of the act envisages that 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 and 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 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. As stated, 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 contract."

In Jugraj Singh & Anr. Vs. Labh Singh & Ors., AIR 1995 SC 945, the Supreme Court observed :-

"Section 16(c) of the Specific Relief Act, 1963 provides that the plaintiff must plead and prove that he has always been ready and willing to perform his part of the essential terms of the contract. The continuous readiness and willingness at all stages from the date of the agreement till the date of the hearing of the suit need to be proved. The substance of the matter and surrounding circumstances and the conduct of the plaintiff must be taken into consideration in adjudging readiness and willingness to perform the plaintiff's part of the contract."

In the case of Manjunath Anandappa Urf Shivappa Hansi Vs. Tammanasa & Ors., AIR 2003 SC 1391 the Supreme Court observed:-

"The decisions of this Court, therefore have no manner of doubt that a plaintiff in a suit for specific performance of contract not only must raise a plea that he had all along been and even on the date of filing of suit was ready and willing to perform his part of contract, but also prove the same. Only in certain exceptional situation where although in letter and spirit, the exact words had not been used but readiness and willingness can be culled out from reading all the averments made in the Plaint as a whole coupled with the materials brought on record at the trial of the suit, to the said effect, the statutory requirement of Section 16 (c) of the Specific Relief Act may be held to have been complied with."

In Umabai and another Vs. Nilkanth Dhondiba Chavan (Dead) by LRS. And another (2005) 6 SCC 243 the Supreme Court observed:

"It is now well settled that the conduct of the parties, with a view to arrive at a finding as to whether the plaintiff-respondents were all along and still are ready and willing to perform their part of contract as is mandatorily required under Section 16(c) of the Specific Relief Act must be determined having regard to the entire attending circumstances. A bare averment in the plaint or a statement made in the examination-in-chief would not suffice. The conduct of the plaintiff-respondents must be judged having regard to the entirety of the pleadings as also the evidences brought on records.

..................

It was for the plaintiff to prove his readiness and willingness to pay the stipulated amount and it was not for the appellants to raise such question. ................"

It is clear from the averments made in the plaint and from the evidence brought on record that there is complete absence of continuous readiness and willingness on the part of the plaintiff. There is nothing in his conduct which may even remotely show that prior to the notice dated 6.5.1979 the plaintiff had expressed any readiness and willingness to perform his part of the contract.

The contention of the learned counsel for the appellant that the defendant also did not raise such a plea does not help the plaintiff-appellant because under Section 16 (c ) of the Act it is for the plaintiff to aver and prove this fact. This is what was observed by the Supreme Court in Umabai (supra). The Trial Court, while deciding issue No. 5 merely observed that certain sections of the Act including section 16(c ) of the Act was not applicable because the plaintiff has been ready and willing to perform his part of the contract. This finding has been arrived at without any discussion. The Lower Appellate Court, on the other hand, has elaborately dealt with this issue. It has observed that under the alleged agreement dated 16/17-4-1975 permission was required to be taken within one month of the agreement and then the sale-deed was required to be executed but the plaintiff not only failed to make any specific averment in the plaint about readiness and willingness but also failed to prove the same. In the light of the discussion made above, the finding recorded by the Lower Appellate Court is correct.

The Lower Appellate Court by a detailed order had rejected the application filed at the belated stage for amending the plaint by adding a relief about readiness and willingness. At the time of the admission of the Second Appeal, the Court did not formulate any substantial question of law as to whether the amendment application had been illegally rejected. This plea, therefore, cannot be considered at the time of hearing of the Second Appeal. However, even otherwise there is no infirmity in the order rejecting the amendment application as it had been moved with a considerable delay and would involve a retrial as evidence would have to be led by the parties on this issue.

The Lower Appellate Court had also allowed the Appeal on the ground that the suit was barred by limitation. No substantial question of law has been framed regarding this issue and, therefore, no relief can be granted to the plaintiff if the suit was barred by limitation. The Lower Appellate Court has also held that the plaintiff failed to prove the execution of the agreement. Neither was any substantial question of law formulated at the time of the admission of the Appeal and nor any submission has been made in this regard by the learned counsel for the appellant.

Thus for all the reasons stated above, the Second Appeal is dismissed. There shall be no order as to costs.

Dt/-10.12.2007

Sharma


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