Smt. Tarawati vs Ram Murti Lal Gangwar
2015 Latest Caselaw 4525 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 19
 

 
Case :- SECOND APPEAL No. - 918 of 2015
 

 
Appellant :- 	Smt. Tarawati
 
Respondent :- 	Ram Murti Lal Gangwar
 
Counsel for Appellant :- 	Ram Krishna Koli
 
Counsel for Respondent :- Ajay Kumar
 

 
Hon'ble Pramod Kumar Srivastava, J.

1. Original Suit No. 79 of 2010, Rammurti Lal v. Smt. Tarawati, was filed for the relief of specific performance of contract. The plaint case in brief was that parties had executed registered agreement to sell dated 12.2.2009 for sale of property of defendant to plaintiff for consideration of Rs. 1 lakh; and at the time of execution of this contract defendant had received Rs. 50,000/- as advance consideration and promised to execute sale deed within one year. But in spite of repeated reminders and legal notices of plaintiff, she had not executed sale deed. Therefore, plaintiff had filed suit for specific performance of said contract.

2. Defendant (present appellant) had filed written-statement in original suit with pleading that she was in need of money, so on the persuasion of plaintiff for executing the documents of loan she had gone to Tehsil Pilibhit, where she was persuaded to place thumb impressions on several documents, after which she was given Rs. 5,000/- as loan. She was not read and explained the document, therefore, the registered agreement to sell in question was result of fraud played upon her by plaintiff. Defendant (present appellant) had also filed counter-claim alongwith her written-statement with prayer that the registered agreement to sell dated 12.2.2009 executed on her behalf in favour of plaintiff be cancelled. But during proceedings of the case defendant-appellant had not deposited requisite court-fees for relief sought by her as counter-claim, so her pleading was not accepted as counter-claim.

3. After affording opportunity of hearing to parties and accepting their evidences the court of Civil Judge (Senior Division), Pilibhit had passed judgment dated 6.3.2014, by which suit of plaintiff for specific performance of contract was decreed with direction to defendant to receive Rs. 50,000/- as remaining consideration and execute sale deed of property agreed between the parties through registered deed as above. Aggrieved by this, defendant had preferred civil appeal no. 10/ 2014, which was heard and dismissed by the court of Additional District Judge, Court No. 1, Pilibhit on 7.8.2015 with specific finding that registered agreement to sell dated 12.2.2009 was properly executed by the parties, and defendant-appellant had failed to prove that there was any fraud or deception in its execution, and also that plaintiff had been ready and willing to perform his part of contract. Against the judgment of the two courts below, present second appeal has been preferred by defendant of the original suit.

4. The first argument of learned counsel for the appellant side was that the counter-claim of defendant-appellant was not considered by the two courts below. This argument is unacceptable. A counter-claim is accepted as plaint with all the formalities of a plaint. Since defendant-appellant had not paid required court fees for counter-claim, therefore, it could not be accepted as a formal counter-claim. There is no illegality or impropriety in it.

5. Learned counsel for the appellant contended that no evidence was furnished by plaintiff-respondent to prove that he had amount of Rs. 50,000/- in his account for being paid as consideration of sale deed to be executed in specific performance of contract. This argument is also not acceptable in light of evidences available before the two courts below. Firstly, there is specific evidence on part of plaintiff-respondent before trial court that amount of Rs. 50,000/- is deposited in account in lieu of consideration for proposed sale deed. Secondly, there is concurrent finding of fact of the two courts below that plaintiff-respondent had been ready and willing to perform his part of contract. These findings are based on available evidences and passed after application of mind. This finding is apparently acceptable. Such finding of fact cannot be interfered in second appeal.

6. The main contention of learned counsel for the appellant was that there is no mention of plaintiff's readiness and willingness to perform his part of contract in plaint. He contended that in absence of such specific averment of readiness and willingness for performance of contract, the suit is barred by Section 16 (c) of Specific Relief Act.

7. In Gomathinayagam Pillai and others  v. Palaniswami Nadar, AIR 1967 SC 868 the Hon'ble Apex Court had held as under:

"Before he could be awarded a decree for specific performance, the respondent had to prove his readiness and willingness continuously from the date of the contract till the date of hearing of the suit and if he failed in that, his suit was liable to fail."

8. In N.P. Thirugnanam v. R. Jagan Mohan Rao (Dr), (1995) 5 SCC 115 the Apex Court had held:

"5. It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under Section 20 of the Specific Relief Act, 1963 (for short "the Act"). Under Section 20, the court is not bound to grant the relief just because there was a valid agreement of sale. 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 the 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 the contract."

9. In Biswanath Ghosh v. Gobinda Ghosh, (2014) 11 SCC 605 the Supreme Court had held:

"22. It is a well-settled proposition of law that in a suit for specific performance the plaintiff must be able to show that he is ready and willing to carry out those obligations which are in fact part of the consideration for the undertaking of the defendant. For the compliance with Section 16(c) of the Act it is not necessary for the plaintiff to aver in the same words used in the section i.e. ready and willing to perform the contract. Absence of the specific words in the plaint would not result in dismissal of the suit if sufficient fact and evidence are brought on record to satisfy the court the readiness and willingness to perform his part of the contract. --"

28. In sum and substance, in our considered opinion, the readiness and willingness of person seeking performance means that the person claiming performance has kept the contract subsisting with preparedness to fulfil his obligation and accept the performance when the time for performance arrives."

10. A perusal of pleadings reveal that although this specific words of plaintiff being always ready and willing to perform his part of contract in question is not mentioned in specific words but after considering the total averment of plaint, it is explicitly clear that such intention is evident from plaint when plaintiff has mentioned that on his insistence defendant had agreed to execute sale deed, and when he reached to office of Sub Registrar, then defendant absented herself so he had again reminded her and then sent registered legal notice through counsel for execution of sale deed in compliance of said registered contract. The over all reading of plaint makes it clear that plaintiff had all along being ready and willing to perform his part of contract in question. On the basis of pleadings of the parties, trial court had framed specific issue no. 1 regarding registered agreement to sell being legally executed, and issue no. 2 that whether plaintiff had always being ready and willing to perform his part of contract. Parties had given evidences on these points, therefore, there is likelihood of any infringement of legal right of defendant-appellant as no prejudice has been caused to her. It is also pertinent to mention here that the defence case of written statement about registered agreement to sell or its pleading for cancellation of registered agreement to sell dated 12.2.2009 had not been proved by defendant-appellant side. It is also pertinent to mention that even first appellate court had given specific finding of fact that plaintiff had been ready and willing to perform his part of contract dated 12.2.2009 for which he had gone to office of Sub Registrar, Pilibhit and got his presence noted in said office but defendant-appellant absented, due to which sale deed could not be executed. There is specific finding of fact by first appellate court about continuous readiness and willingness of plaintiff-respondent to perform his part of registered agreement to sell in question.

11. From the aforementioned sequence of facts and events, it can be safely inferred that the respondent-plaintiff was always ready and willing to discharge his obligation and perform his part of the agreement. In my considered opinion, the undisputed facts and events referred to hereinabove shall amount to sufficient compliance with the requirements of Section 16(c) of the Specific Relief Act. Taking into consideration the entire facts and circumstances of the case and the law discussed hereinabove, in my considered opinion the impugned judgments passed by the trial Court as well as the first appellate Court are not erroneous on this point of law.

12. The judgment of trial court for decreeing the plaintiff's suit was challenged in first appeal no. 10 of 2014, Smt. Tarawati V. Rammurti Lal Gangwar. This appeal was dismissed by first appellate court on 7.8.2015, against which present second appeal has been preferred. Thus, this appeal is preferred against judgment passed in first civil appeal no. 10 of 2014 before first appellate court under Order XLI C.P.C. The provisions of Rule 2 of Order XLI reads as under:-

"2. Grounds which may be taken in appeal.- The appellant shall not, except by leave of the court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the Appellate Court, in deciding the appeal, shall not be confined to the grounds of objection set forth in the memorandum of appeal or taken by leave of the court under this rule:

Provided that the court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground."

13. The Rule 2 as above is mandatory in nature for any appellant, who except the permission of the Court, shall not be heard on any ground of objection not set forth in his memo of appeal. In present case the memo of first appeal makes it clear that no ground was taken on behalf of appellant that defendant-respondent was not always ready and willing to perform this part of contract. Since this ground had not been taken in first appeal, therefore, it is inappropriate for appellant to raise this ground in second appeal, especially when first appellate court had given specific finding of fact that plaintiff had always been ready and willing to perform his part of contract in question. Therefore, argument of learned counsel for the appellant on this point in light of Section 16(c) of the Specific Relief Act is non sustainable. One important argument on behalf of appellant was that issues were not framed on counter-claim, therefore, in such circumstance judgment and decree of trial court is not sustainable in eye of law.

14. As discussed above, in non-payment of requisite mandatory legal court fees the pleading of defendant could not be accepted as formal counter-claim. In his written statement and counter-claim the defendant had sought relief of cancellation of registered agreement to sell dated 12.2.2009 in light of relief sought by plaint and in alleged counter-claim several issues were framed including the issue no. 1 to the effect that whether registered agreement dated 12.2.2009 between the parties was legally executed, and issue no. 2 that whether plaintiff has always been ready and willing to perform his part of contract. These two issues cover the pleadings and relief sought in alleged counter-claim of defendant-appellant. Therefore, contention of learned counsel for the appellant on this point is non-acceptable.

15. So far as decision on point of substantial question of law is concerned, there appears none in this matter. The only dispute between the parties is as to whether registered deed of agreement to sell dated 12.2.2009 between the parties is executable or not and whether plaintiff has been ready and willing to perform his part of contract or not. The trial court had framed specific issues on these points and the two courts below have given concurrent finding of fact on these points.

16. On examination of the reasonings recorded by the trial court, which are affirmed by the learned first appellate court in first appeal, I am of the view that the judgments of the trial court as well as the first appellate court are well reasoned, based upon proper appreciation of the entire evidence on record. No question of law much less a substantial question of law was involved in this case before the High Court. No perversity or infirmity is found in the concurrent findings of fact recorded by the trial court that has been affirmed by the first appellate court to warrant interference in this appeal. None of the contentions of the learned counsel for the appellant-defendant can be sustained.

17. In view of the above, this Court finds that no substantial question of law arises in this appeal. The second appeal is dismissed.

Order Date :- 24.11.2015

SR