Chattisgarh High Court
Shivnath Jaiswal vs Parmeshwar And Ors on 1 July, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment reserved on : 14/06/2022
Judgment Delivered on : 01/07/2022
FA No. 146 of 2015
Shivnath Jaiswal, S/o Ramsakal Jaiswal, aged about 43 years,
R/o village Duppi, Post Office Narsinghpur, Police Station and
Tahsil Rajpur, Civil and Revenue District Balrampur-
Ramanujganj (C.G.)
---- Appellant
Versus
1. Parmeshwar, S/o Samal, aged about 66 years, R/o village
Khadgawan Kala, Police Station and Tahsil Pratappur, Civil
and Revenue District Surajpur (C.G.)
At present R/o Hariharpur (Kachharpara), Tahsil Pratappur,
Civil and Revenue District Surajpur.
2. Ramraj S/o Ramroop Yadav, aged about 35 years, R/o village
Khadgawan Kala, Police Station and Tahsil Pratapur, Civil and
Revenue District Surajpur (C.G.)
3. State of Chhattisgarh, through Collector, Surajpur, District
Surajpur (C.G.)
---- Respondents
For Appellant : Mr. Manoj Paranjape with Mr.
Anurag Singh, Advocates.
For Respondents No. 1 & 2 : Mr. Harish Khuntiya,
Advocate.
For Respondent No.3/State : Mr. Ashutosh Mishra, P.L.
D.B. : Hon'ble Shri Justice Goutam Bhaduri &
Hon'ble Smt Justice Rajani Dubey
C A V Judgment
1. The appellant/plaintiff has preferred this first appeal
being aggrieved by the judgment and decree dated
24.03.2015 passed by Additional District Judge,
Pratappur, District Surajpur (C.G.), in Civil Suit No.01-
A/2013, whereby the suit filed by the appellant/plaintiff
herein for specific performance of contract has been
dismissed.
2. Before the learned trail Court, execution of agreement
dated 11.10.2012 between the appellant/plaintiff herein
and defendant/respondent No.1 herein & receipt of
advance of Rs.4,00,000/- is an admitted fact.
3. Brief facts of the case are that on 11.10.2012,
defendant/respondent No.1 herein had entered into an
agreement with the appellant/plaintiff for sale of suit
property bearing Kh. No.3278 area 0.19 hectares,
situated at village Khadgawan, Tahsil Pratappur, District
Surajpur (C.G.) for consideration of Rs.10,00,000/- and
has obtained an amount of Rs.4,00,000/- as an advance.
It was specifically averred in the plaint that the
appellant/plaintiff herein was ready and willing to
perform his part of the contract. According to the
agreement, after getting the balance amount of sale
consideration, the defendant/respondent No.1 herein
was required to execute the sale deed on or before
15.12.2012. The defendant/respondent No.1 herein
informed the appellant/plaintiff that due to clerical
mistake the caste of the defendant/respondent No.1
herein has wrongly been mentioned and to correct the
same, he has filed an application before the Sub
Divisional Officer, Pratappur, and therefore, after getting
correction in the revenue record, the sale deed would be
executed. From 15.12.2012 onwards, the
plaintiff/appellant herein was in tough with
defendant/respondent No.1 and was insisting for
execution of sale deed. On 04.11.2012, the
defendant/respondent No.1 had filed an application for
correction in his caste before the Sub Divisional
Magistrate and Revenue Case No.21-B/121/2012-13 was
registered accordingly. It was also averred in the plaint
that the defendant/respondent No.1 herein, with
malafide intention, has not obtained report on 22 points
and he was not ready to perform his part of contract
despite of payment of earnest money & despite
repeated request, the sale deed has not been executed.
It has been further averred that on 21.12.2012, a notice
was served upon defendant/respondent No.1 herein but
he neither replied to the notice nor executed the sale
deed. Therefore, the appellant/plaintiff filed a civil suit
for specific performance of contract.
4. The defendant/respondent Nos. 1 and 2 herein, in their
written statements, denied all the allegations of plaintiff
made in the suit stating that the appellant/plaintiff
herein was not ready and willing to perform his part of
contract. It was also averred in the written statement
that due to clerical mistake in the revenue record in
particular the case of the defendant/respondent No.1
heren, the sale deed could not be executed. The
defendant/respondent No.1 herein was ready and willing
to perform his par of the contract but the
appellant/plaintiff herein neither paid the balance
amount of consideration nor was ready to perform his
part of contract, therefore, under compelling
circumstances, on 17.12.2012, the
respondent/defendant No.1 entered into an agreement
with one Dilip and Mukesh Agrawal for sale of the land in
question. It was also stated that defendant/respondent
No.1 herein replied to the show cause notice specifically
mentioning that the agreement has been cancelled
owing to non payment of balance amount of
consideration. He is ready to repay the advance money
and, on 05.01.2013, the defendant/respondent No.1
herein executed a new agreement (agreement
cancellation deed) and returned Rs.4,00,000/- to the
appellant/plaintiff herein but the appellant/plaintiff did
not sign in the agreement cancellation deed and
demanded Rs.50,000/- as an interest, as such, the
plaintiff's suit is liable to be dismissed.
5. After appreciating oral and documentary evidence on
record, the learned trial court dismissed the suit of the
plaintiff/appellant herein. Hence, this appeal.
6. Learned counsel for the plaintiff/appellant submits that
after execution of agreement, the defendant/respondent
No.1 had moved an application for report on 22 points
regarding execution of sale deed and during this period,
the plaintiff/appellant kept on contacting
defendant/Respondent No. 1 and requested him to
execute the sale deed of the suit property after receiving
the outstanding amount of Rs. 6 Lakhs, but the
defendant/Respondent 1 assured him to execute the sale
deed after getting correction in the revenue record with
regard to his caste related error, but the
defendant/respondent No. 1 wants to execute the
agreement of the suit property with one Deepak and
Mukesh Agarwal contrary to the terms of the contract.
Learned counsel further submits that
defendant/respondent No.1, according to the agreement,
did not fulfill his promise on time, due to which the sale
deed could not be executed in time as prescribed in the
agreement, for which the defendant/respondent No.1 is
solely responsible. The plaintiff/appellant was always
ready and willing to pay balance amount of Rs. 6 Lakhs
for execution of sale deed but by making an excuse to
rectify the caste related error in the revenue record,
defendant/respondent No. 1 had evaded to execute the
sale deed. Learned counsel also submits that the
learned trial Court has not taken into consideration the
oral and documentary evidence on record in its correct
perspective. Before the learned trial Court, the
appellant/plaintiff has proved his readiness and
willingness but the learned trial Court wrongly dismissed
the suit holding that on being demanded the balance
amount of Rs.6 Lakh of sale consideration, the plaintiff
has failed to pay the same on time. The learned trial
Court ought to have considered the factum of execution
of agreement and receipt of money of Rs.4 Lakh by
defendant/respondent No.1 but the learned trial Court
did not appreciate admitted facts of the case and passed
the impugned judgment and decree, which, in the
aforesaid facts and circumstances of the case, deserves
to be set aside.
7. On the other hand, learned counsel for respondent Nos.
1 and 2 and learned P.L. for the State supported the
impugned judgment and decree passed by the learned
Court below.
8. Heard learned counsel for the parties and perused the
material available on record.
9. The learned trial Court, on the basis of pleadings of
plaint, framed as many as three issues, which are
reproduced herein below :-
"01& - D;k oknh] izfroknh dz- 1 ls] oknHkwfe [kljk ua- & 3278
jdck 0-19 gs- fLFkr xzke & [kMxoka dyk] Fkkuk o rglhy &
izrkiiqj] ftyk & lwjtiqj ¼N-x-½ dk iathd`r fcdzh i=]
lafonk i= fnukad [email protected]@12 ds vuqlkj fu"ikfnr djk ikus
dks vf/kdkjh gS \
02& D;k oknh] 4]00][email protected]& #- dks fnukad [email protected]@2013 dks okil
izkIr dj] lafonk i= fnukad [email protected]@2012 ds fujLrh i= esa
fcuk gLrk{kj fd, Hkkx x;k Fkk \
03& D;k oknh] izfroknh dz-&01 ds fo#+)] bl vk'k; dk LFkk;h
fu'ks/kkKk izkIr djus dk vf/kdkjh gS fd izfroknh dz-&01]
oknHkwfe [kljk ua-&3278 jdck 0-19 gs- fLFkr xzke&[kMxoka
dyk] Fkkuk o rglhy & izrkiiqj] ftyk & lwjtiqj ¼N-x-½ dk
fdlh vU; dks fcdzh u djs o mlds ewy #o#i esa ifjorZu u
djs \
05. Before the learned trial Court, defendant/respondent
No.1 admitted the execution of agreement of sale of suit
property dated 11.10.2012 and receipt of Rs.4,00,000/-. It is
also an admitted fact that defendant/respondent No.1 herein
filed an application for correction in revenue record before the
Sub Divisional Officer, who in turn, passed an order on
13.12.2012 for correction of the caste of the
defendant/respondent No.1 in revenue record and directed the
Patwari to prepare report on 22 points. The appellant/plaintiff
herein stated in his evidence that he is ready to perform his
part of contract. In para 12 of affidavit filed under Order 18
Rule 4 of C.P.C. he has stated as under:-
"eS 'kiFk iqoZd dFku djrk gwWa fd eS vuqca/k i= fnukad 11-10-12 ds
vuqdze esa lafonk okn Hkwfe [kljk ua- 3278 jdck 0-19 gsDVs;j dks dz;
djus gsrq rRij gqW rFkk fodz; eqY; dh jkf'k vadu 6]00][email protected]& # ¼N%
yk[k #i;s½ iath;u frFkh dks ijes'oj dks vnk djus gsrq rRij FkkA"
But, in para 18 of his cross-examination, he admitted
that ";g dguk lgh gS fd vuqca/ki= iz-ih-&1 esa larks"k tk;loky vkSj jkejkt nksuksa
xokg gSaA ;g dguk lgh gS fd vuqca/ki= esa 15 fnlacj 2012 rd jftLVªh djkus dh
ckr fy[kh x;h gSA ;g dguk lgh gS fd 15 fnlacj 2012 rd cdk;k jkf'k nsus dh
ckr fy[kh x;h gSA ;g dguk lgh gS fd 15 fnlacj 2012 rc cdk;k jkf'k nsus ds ckn
jftLVªh djkus dh ckr fy[kh x;h gSA"
The appellant/plaintiff, in para 19 of his cross-
examination, has also admitted that ";g dguk lgh gS fd 15 fnlacj
2012 rd eSus vuqca/kdrkZ dks cdk;k jkf'k ugh fn;k gS] Lor% dgk fd 22 fcUnq
vuqca/kdrkZ ysdj jftLVkj ds lkeus vkrk] rc eSa jftLVkj ds lkeus iSlk nsrk".
It has also been admitted by the plaintiff/appellant in
para 19 that " ;g dguk lgh gS fd vuqca/k i= ds ckn eq>s tkudkjh gqvk fd
ijes'oj dks iwoZ dh dkxt esa tkfr laca/kh =qfV gks x;h FkhA ;g dguk lgh gS fd
ijes'oj vius tkfr lq/kkj djus ds fy, vuqfoHkkxh; vf/kdkjh izrkiiqj ds le{k
vkosnu Hkh yxk fn;k FkkA ;g dguk lgh gS fd fnukad 13&12&12 dks ijes'oj dk
tkfr lq/kkj djus dk vkns'k Hkh vuqfoHkkxh; vf/kdkjh izrkiiqj }kjk fd;k x;k gSA "
The appellant/plaintiff has also admitted in para 21 that
";g dguk lgh gS fd eSaus jftLVkj ds ;gkW vFkok rglhynkj ds ;gkW vFkok
vuqfoHkkxh; vf/kdkjh ds ;gkW fnukad [email protected]@12 ds iwoZ vFkok [email protected]@12 dks
vuqca/k dk ikyu djus ds fy, vFkok djkus ds fy, dksbZ Hkh vkosnu i= eSaus ugha fn;k
gSA "
06. A bare perusal of the aforesaid statement/evidence of
the plaintiff/appellant clearly shows that the
plaintiff/appellant had to pay balance amount of sale
consideration on or before 15.12.2012 but he did not
make any effort for payment of balance amount for
execution of sale deed. This court does not find any
force in the argument of learned counsel for the
plaintiff/appellant that defendant/respondent No.1
evaded to execute the sale deed on the ground of
correction of his caste in revenue record for the reason
that the plaintiff/appellant himself admitted in his
evidence that order of correction of caste of the
defendant/respondent No.1 in revenue record was
passed on 13.12.2012 i.e. before the 15.12.2012 which
was the last date of payment of balance amount of sale
consideration.
07. The defendant/respondent No.1 herein has stated in his
evidence that he had filed an application before Sub
Divisional Officer, Pratappur, who, on 13.12.2012, had
passed an order of correction of his caste in revenue
record, which reflects that the defendant/respondent
No.1, in any manner, has evaded to execute the sale
deed.
08. Furthermore, in the instant case, the appellant/plaintiff
herein did not send any notice to defendant/respondent
No.1 herein before the due date i.e. 15.12.2012. Notice
(Ex.P-2) was sent on 21.12.2012 by the
appellant/plaintiff herein i.e. after due date and the
defendant/respondent No.1 herein duly replied to the
said notice vide Ex.D-2 specifically stating that according
to the agreement of sale, the balance amount of
consideration had to be paid on 15.12.2012 but the
appellant/plaintiff herein, on being repeated request by
defendant/respondent No.1 herein, did not pay the
balance amount of sale consideration. As such, he was
compelled to sale his land to another persons because
he was in need of money for which he had entered into
an agreement to sale of suit property with the
plaintiff/appellant, who failed to pay the balance amount
in prescribed time limit.
09. Present is a civil suit for specific performance of contract
by the appellant/plaintiff herein, as such, it is
indisputable that in a suit for specific performance of
contract, the plaintiff must establish his readiness and
willingness to perform his part of contract. The readiness
and willingness on the part of the plaintiff to perform his
part of contract would also depend upon the question as
to whether the defendant did everything which was
required of him to be done in terms of the agreement for
sale."
10. Supreme Court in the matter of N.P. Thirugnanam (D)
by Lrs v. Dr. R. Jagan Mohan Rao & Ors 1 held in para
5 as under:-
"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 valid
agreement of sale. Section 16(c) of the Act
envisages that plaintiff must plead and prove
1 1996 AIR 116
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."
11. In the case in hand, appellant/plaintiff herein has failed
to show and prove the essential part of his performance
and rather he reluctant with willingness to perform his
part of the contract and was at no point of time ready
with either money or resources to fulfill his part of the
contract.
12. The defendant/respondent No.1 herein executed a deed
of Cancellation of Agreement (Ex.D-4) with
appellant/plaintiff herein. A bare perusal of the said
document would go to show that executer i.e.
defendant/respondent No.1 had returned Rs.4,00,000/-,
which was taken as advance, to the appellant/plaintiff
herein but, according to defendant/respondent No.1,
appellant/plaintiff herein did not sign on Ex.D-4 and
demanded Rs.50,000/- as interest on advance given to
defendant/respondent No.1 herein & in rebuttal, the
appellant/plaintiff herein filed medical certificate
(Ex.P/14) attempting to show that on the date of
execution of document (Ex.D-4) i.e. on 05.01.2013, he
was unwell, as such, he could not sign the said
document/-. In this regard, the learned trial Court, in
para 39 recorded its finding that in Ex.D/14, the time has
not been mentioned in it. That apart, it has also not
been mentioned in Ex.D/14 that he was hospitalized in
the hospital, as such, it is not established that on
05.01.2013 the appellant/plaintiff taking treatment in
the hospital.
13. Further, during the pendency of appeal, the
appellant/plaintiff had informed the Court that
defendant/respondent No.1 sold some part of suit
property to another person and prayed for time to
implead the purchaser in the array of respondents, but
till date the appellant/plaintiff has not impleaded the
purchaser as party. This conduct of the
appellant/plaintiff also proved that he is not at all ready
and willing to perform his part of contract.
14. It is settled principle of law that in a suit of specific
performance of contract, the plaintiff has to prove that
he had performed or has always been ready and willing
to perform essential terms of the contract which are to
be performed by him. The continuous readiness and
willingness on the part of the plaintiff is a condition
precedent to grant the relief of specific performance but,
in this case, the plaintiff/appellant herein has failed to
prove this condition. The learned trial Court also
recorded its finding that the plaintiff/appellant has failed
to prove his part of contract and dismissed the suit of
the plaintiff/appellant herein and decided all the issues
against him. The finding recorded by the learned trial
Court is based on proper appreciation of oral and
documentary evidence and according to the principles
laid down by Supreme Court. We see no infirmity in the
impugned judgment and decree of the learned trial
Court.
15. Consequently, the appeal being devoid of merit is liable
to be dismissed and is hereby dismissed. Parties shall
bear their respective costs. Let decree be accordingly
drawn.
Sd/- Sd/-
(Goutam Bhaduri) (Rajani Dubey)
Judge Judge
PKD
