[Cites 25, Cited by 0]
Gujarat High Court
Deseased Bhavabhai Karshanbhai Patel ... vs Bhimjibhai Khimjibhai Patel on 5 May, 2026
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Reserved On : 15/04/2026
Pronounced On : 05/05/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 5691 of 1999
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE)
NO. 1 of 2024
In R/FIRST APPEAL NO. 5691 of 1999
With
CIVIL APPLICATION (DIRECTION) NO. 2 of 2024
In R/FIRST APPEAL NO. 5691 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI Sd/-
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Approved for Reporting Yes No
Yes
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DESEASED BHAVABHAI KARSHANBHAI PATEL THROUGH
LEGALHEIRS & ORS.
Versus
BHIMJIBHAI KHIMJIBHAI PATEL & ORS.
=====================================================
Appearance:
MR AV PRAJAPATI(672) for the Appellant(s) No. 1.1,1.2,1.3
MR.D K.PUJ(3836) for the Defendant(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
CAV JUDGMENT
1. The instant first appeal under Section 96 of the Code
of Civil Procedure, 1908 (hereafter referred to as 'the Code') at
the behest of original defendant, challenges the judgment and
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decree dated 16.03.1999 passed by the 4 th Joint Civil Judge,
Senior Division, Rajkot (trial Court, for short) in Special Civil
Suit No.301 of 1991, by which the plaintiff's suit was decreed.
2. Plaintiff's suit for specific performance of the contract
(Exhibit-122) was decreed along with the consequential relief of
possession of the land, permanent injunction and cost and the
appellant herein was ordered to perform his part of the contract.
2.1 The operative order of the impugned judgment and
decree reads as under:-
"The plaintiffs' suit is hereby allowed and decreed for
specific performance of the contract at Ex. 122, possession
of the land. the permanent injunction and costs of the suit,
as prayed for in para 14 of the plaint. Accordingly. the
defendant is hereby ordered to perform his part in respect of
the essential terms of the contract, Ex. 122 and for that
purpose, he shall apply before the concerned authorities for
obtaining necessary permission or certificate as discussed in
this judgment, within 2 months from the date of this order.
Thereafter, if necessary permission/clearance is granted,
then the defendant shall execute the sale-deed on payment
of balance consideration by the plaintiffs to him. He shall
also hand over peaceful and vacant possession of the land
to the plaintiffs, after execution of the sale- deed as above.
Further, the defendant is hereby restrained permanently
from selling the suit land or transferring or assigning the
same in any other manner to the person other than the
plaintiffs.
The defendant shall bear his own costs and he
shall pay costs of the plaintiffs in the suit.
Decree to be drawn accordingly.
Pronounced in open court on this 16th day of
March, 1999."
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2.2 For convenience and brevity, parties are referred to
as per their status before the trial Court.
3. The facts of the case, in a nutshell, are as under:-
3.1 Plaintiff has filed a suit for the specific performance
of the agreement to sale.
3.2 The defendant is the owner of land measuring 2000
sq. yds.s situated in Ward No.7 of the Rajkot Municipal
Corporation having FP No.1/284/1442/2 of original plot No.1 in
TP scheme No.4 of revenue survey No.373 paiki, 374 paiki and
380 (suit land).
3.3 It is the case of the plaintiff that the competent
authority, under the provisions of the Urban Land Ceiling Act,
1976 (hereinafter referred to as the 'ULC Act') declared the suit
land as within the ceiling limit in the holding of the defendant by
order in a case No.3203 of 1976 on 30.03.1991. The defendant,
therefore, was a lawful owner of the suit land and was in
possession and had the right to dispose of or to deal with it.
3.4 As far as agreement to sale is concerned, it was a
case of the plaintiff that the defendant executed an agreement to
sell qua the suit land on 15.04.1991 in favor of the plaintiff.
After negotiation, the price of the land was fixed at the rate of
Rs.950/- per sq. yds., totalling Rs.19,00,000/- for a suit land
admeasuring 2000 sq. yds.. Plaintiff paid Rs.5,001/- to the
defendant as token at the time of execution of the agreement to
sell.
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3.5 It was a case of the plaintiff that defendant was
required to obtain a permission under Section 26(1) of the 'ULC
Act' and after obtaining such permission was under obligation to
execute the sale deed in favor of the plaintiff as a Karta and
Manager of the HUF, either in favor of the plaintiff or any person
to be named by the plaintiff within 06 months or after getting
cleared all the titles of the land. Time was not the essence of the
contract time and amongst the other conditions, it was agreed
that the time can be relaxed. Other conditions were also to be
performed by the defendant, including obtaining signature of
other members of the HUF on the sale deed. The defendant was
also required to measure the land and obtain the actual
measurement of the entire land. However, plaintiff claimed that
defendant, failed to perform his part of the agreement to sell -
contract, despite several reminders were sent, and rather
remained converse to the terms and conditions of the agreement
to sell and did not perform his part.
3.6 The plaintiff approached the learned trial Court for
relief of specific performance of the agreement to sell dated
15.04.1991 and possession of the suit land. The relief of
permanent injunction restraining the defendant from changing
the hands of the suit land was also asked.
3.7 Defendant having been served with the process, filed
written statement at Exhibit-30 and contested the suit
proceedings. While setting up the defense of the plaintiff's suit
being false and denying the bonafide of the plaintiff and the
plaintiff having no right to file the suit and other averments
made in the plaint, the defendant simultaneously denied the
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execution of the agreement to sell dated 15.04.1991, including
validity and enforceability of the agreement. It is rather claimed
that the document is rather a bond required to be executed on
the proper stamp paper of Rs.76,000/-. Further, the thumb
impression of the defendant on such agreement to sell dated
15.04.1991 was also denied.
3.8 Purported agreement to sale the document has been
put in the line of being a false, bogus and got-up document and
it is also denied that plaintiff has not received any advance
money or sale consideration or part of the self consideration.
3.9 It is further contended that each plaintiff is holding
excess vacant land than the ceiling limit under the 'ULC Act',
and therefore, even on that count, they are not entitled to get
any further land within the city limit and thus, no decree can be
passed. Ultimately, by this written statement, the defendant
prayed to dismiss the suit with cost.
3.10 It is in this rival pleading, the learned trial Court
framed the issues (Exhibit-77) and permitted both the parties to
lead the evidence. After analyzing the evidence on record both
oral and documentary, the learned trial Court was pleased to
allow the suit in the aforesaid terms.
3.11 Being aggrieved, the defendant has filed this appeal
raising various grounds.
4. Heard learned advocate Mr. A.V. Prajapati appearing
for the appellant - defendant and learned advocate Mr. D.K. Puj
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appearing for respondent - plaintiff. Both of them have filed the
written submission along with the authorities, which have been
taken on record.
4.1 In his written submission, learned advocate Mr. A.V.
Prajapati appearing for the appellant - defendant mainly
submitted that the impugned decree is contrary to law, evidence
and settled principles governing suit for specific performance.
4.2 That the respondent - plaintiff hopelessly failed to
prove either the existence of a valid and enforceable contract or
their continuous readiness and willingness to perform his part,
as mandated by section 16(c) of the Specific Relief Act, 1963
(hereinafter referred to as the 'SR Act').
4.3 That the respondent - plaintiff claimed that the
defendant, in capacity of Karta and Manager of HUF, agreed to
sell suit land by taking a token money of Rs.5,001/-; however,
hopelessly failed to prove existence of the HUF of Bhavabhai
Karshanbhai Patel.
4.4 That the Exhibit-122 styled as 'agreement to sell' is
not a valid contract, but merely a proposal or a bond requiring
proper stamps only.
4.5 That the learned trial Court erred in taking Exhibit-
122 as a binding contract in view of Section 2 of the Indian
Contract Act, 1872 (hereinafter referred to as the 'Contract Act'),
an agreement becomes a concluded contract only when there is
an offer, acceptance, lawful consideration and intention to create
legal contractual relationship. However, same is missing on face
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reading of Exhibit-122, rather it shows that it is a proposal
depending on the future contingencies.
4.6 That the respondent - plaintiff did not lead any
evidence to show that any of the conditions, being a part of
Exhibit-122 was ever complied and yet, relief in the suit for
specific performance was granted erroneously.
4.7 That even learned trial Court also believed that the
agreement to sale, Exhibit-122 is dependent upon multiple
conditions, and therefore, has granted the conditional degree of
specific performance and passed the judgment to the effect to
firstly complete the condition and then to perform the part of the
contract, which itself shows that the Exhibit-122 is not a
righteous contract or concluded contract.
4.8 That the payment of token money of Rs.5,001/-
against the total sale consideration of Rs.19,00,000/- is
insignificant (less than 0.03%) and cannot be treated as an
earnest money. It also reflect the plaintiff's absence of readiness
and willingness to perform his part of the contract. However, the
learned trial Court overlooked these pivotal aspects and
committed serious error in granting the decree.
4.9 That the suit land exceeds 1500 sq.mts. and each of
the respondents - plaintiffs already possess holding above the
ceiling limit, in view of Sections 3 and 6 of the 'ULC Act', each
plaintiff were prohibited from acquiring additional vacant land
without permission under Section 26(1) of the 'ULC Act'.
However in absence of obtaining any permission under Section
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26 of the 'ULC Act', no specific performance can be granted and
thereby, the agreement to sell at Exhibit-122 is hit by Section 23
of the 'Contract Act'.
4.10 That one of the plaintiff filed an Insolvency
Application No.7 of 2017 indicating his poor financial capacity
and being incapacitated to close his debts, which runs counter
to the very need of Section 16(c) of the 'SR Act' to prove
continuous readiness and willingness.
4.11 That the appellant - defendant, in written statement,
specifically denied his thumb impression upon the Exhibit-122.
According to plaintiff, this thumb impression was identified by
Mr. Jivraj R. Patel, who has signed in his place. However, the
plaintiff by leading a cogent evidence, did not remove suspicious
circumstances shrouding on Exhibit-122
That the stamp paper, upon which the Exhibit-122
is, is not purchased by the plaintiff, but his advocate.
4.12 That the suit is filed beyond the prescribed period of
limitation.
4.13 That the impugned judgment is bad in law as it is
ignoring the factual aspect that the defendant has filed the RCS
No.399 of 2009 against Dudhabhai Mapabhai Bevada and his
Power of Attorney, who is one of the person named as a
purchaser, alleging that he has encroached upon the suit land.
The suit was decreed and the first appeal challenging the
judgment and decree in favor of the defendant is also dismissed,
whereby the status of one of the purchaser became as an
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'Encroacher'. Moreover, it also established that by hook and
crook, plaintiff were in attempt and in a hurry to grab the
defendant's land.
4.14 In support of his argument, learned advocate Mr.
A.V. Prajapati referred to the recent judgment of the Supreme
Court in the case of:-
i) R. Shama Naik v. G. Srinivasiah, reported in 2024 INSC
ii) N.P. Thirugnanam (Dead) by LRs v. Dr. R. Jagan Mohan
Rao and Ors., reported in (1995) 5 SCC 115.
iii) K.S. Vidyanadam and Ors. v. Vairavan, reported in AIR
1997 SC 1751.
4.15 Mainly upon the above arguments, it is submitted
that the learned trial Court has committed serious error in
decreeing the suit. The impugned judgment is unjust, illegal and
against the settled principles and contrary to the facts and
evidence and thus, it is urged to allow the appeal and to quash
and set aside impugned judgment and decree and to dismiss the
suit.
5. Per contra, learned advocate Mr. D.K. Puj appearing
for the plaintiff - respondent, in his written argument mainly
raised the contention that the ULC has passed the order in favor
of the defendant - HUF at Exhibit-130, which clearly reflects that
the suit land belongs to the HUF, whereby original defendant
was the Manager & Karta.
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5.1 He would further submit that the learned trial Court
rightly considered Exhibit-122 as agreement to sale and further
believed that the plaintiff was ever ready and willing to perform
his part of the contract and granted the discretionary relief. The
appellant failed to bring any convincing evidence or ground to
dispel the legality and purity of the impugned judgment that the
thumb impression of the defendant upon the Exhibit-122 is
proved by evidence of witness, Exhibit-121. Moreover,
significantly, the defendant, who denies his thumb impression
on Exhibit-122, did not chose to file any complaint against the
plaintiff till date. Moreover, Mr. Lalakiya, the learned advocate, is
a witness to the agreement to sale, aptly according to the recital
in Exhibit-122, the terms and conditions were read over to both
the parties.
5.2 He would further submit that the learned trial Court
has framed the issues at Exhibit-77. Issue No.1 was dealt with
the help of the evidence of the plaintiff, Exhibit-84. PW-2 - Jivraj
R. Patel, at Exhibit-121, who proves the thumb impression of the
defendant. Legality of the agreement can be seen on going
through the Sections 2 to 12 of the provisions of the 'Contract
Act'.
5.3 That though the defendant raised the point during
argument of the appeal that he is illiterate, he did not raise such
issue in the written submission and no such issue was framed
by the learned Court below. Nonetheless, Mr. Lalakiya, the
learned advocate has read over the recital of the agreement,
which is established by the deposition of the PW-2 at Exhibit-
121, that the agreement at Exhibit-122 proves as agreement to
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sell, the receipt of Rs.5,001/- is confirmed in the agreement to
sell itself shows that the token money/earnest money was paid
to the plaintiff and that the defendant has signed the agreement
to sell as a Manager and Karta of HUF. He also pursued the ULC
proceeding as a Manager and Karta of the HUF and he had
undertaken to take the consent of family members on the
execution of the sale deed.
5.4 It is argued that, significantly, none of the family
members came forward to contest the suit proceedings or even
file the appeal challenging the impugned judgment and decree.
5.5 That the plaintiff has proved readiness and
willingness by depositing entire sale consideration before the
learned executing Court way back in year 2008, which indicates
that the plaintiff was ever ready and willing to perform his part
of the contract.
5.6 That the suit land and the land being the subject
matter of Special Civil Suit No.65 of 1986 was filed by the
plaintiff No.1 for specific performance against Premji Gopa is
different land.
5.7 In support of his argument, Mr. D.K. Puj, learned
advocate, relied upon the read upon the following judgments:-
i) Beemaneni Maha Lakshmi v. Gangumalla Appa Rao
(Since Dead) by LRs, reported in (2019) 6 SCC 233.
ii) Jai Jai Ram Manohar Lal v. National Building
Material Supply, Gurgaon, reported in (1969) 1 SCC 869.
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iii) Basavaraj v. Padmavathi and Anr., reported in (2023) 4
SCC 239.
5.8 In view of above submission, learned advocate Mr.
D.K. Puj submitted that the learned trial Court passed the
judgment and decree in accordance with the evidence led before
it considering the provision of the law justly, rightly and properly
and no interference is required to be called.
6. Regard being held to the rival submission of learned
advocates for both the side as well as perusal of the impugned
judgment and decree along with the paper book and the record
and proceedings of the suit, the primary and root questions fell
for the consideration in this appeal that:-
i) Whether the plaintiff, in a suit for specific performance,
has proved that he was ever ready and willing to perform his
part of the contract?
ii) Whether the learned Civil Court erred in passing the decree
of specific performance or not ?
iii) What order?
7. Before addressing the rival submission of the learned
advocate for both sides, let me refer to the judgment in case of C.
Venkata Swamy v. H.N. Shivanna (Dead) by LRs and Ors.,
reported in AIR 2017 SC 5604 to find out the jurisdiction of the
first appellate court while hearing the first appeal. Para 11, 12,
13, 14, 15, 16, 18, 19, 20 are relevant, which reads as under:-
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"11. It is a settled principle of law that a right to file first
appeal against the decree under Section 96 of the Code is a
valuable legal right of the litigant. The jurisdiction of the first
Appellate Court while hearing the first appeal is very wide
like that of the Trial Court and it is open to the appellant to
attack all findings of fact or/and of law in first appeal. It is
the duty of the first Appellate Court to appreciate the entire
evidence and arrive at its own independent conclusion, for
reasons assigned, either of affirmance or difference.
12. Similarly, the powers of the first Appellate Court while
deciding the first appeal are indeed well defined by various
judicial pronouncements of this Court and are, therefore, no
more res integra. It is apposite to take note of the law on this
issue.
13. As far back in 1969, the learned Judge - V.R. Krishna
Iyer, J (as His Lordship then was the judge of Kerala High
Court) while deciding the first appeal under Section 96 of the
Code in Kurian Chacko vs. Varkey Ouseph, AIR 1969 Kerala
316, reminded the first Appellate Court of its duty to decide
the first appeal. In his distinctive style of writing with subtle
power of expression, the learned judge held as under:
"1. The plaintiff, unsuccessful in two Courts, has
come up here aggrieved by the dismissal of his suit
which was one for declaration of title and recovery of
possession. The defendant disputed the plaintiff's title
to the property as also his possession and claimed
both in himself. The learned Munsif, who tried the
suit, recorded findings against the plaintiff both on
title and possession. But, in appeal, the learned
Subordinate Judge disposed of the whole matter
glibly and briefly, in a few sentences.
2. An appellate court is the final Court of fact
ordinarily and therefore a litigant is entitled to a full
and fair and independent consideration of the
evidence at the appellate stage. Anything less than
this is unjust to him and I have no doubt that in the
present case the learned Subordinate Judge has
fallen far short of what is expected of him as an
appellate Court. Although there is furious contest
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between the counsel for the appellant and for the
respondent, they appear to agree with me in this
observation....." (Emphasis supplied)
14. This Court also in various cases reiterated the aforesaid
principle and laid down the powers of the Appellate Court
under Section 96 of the Code while deciding the first appeal.
15. We consider it apposite to refer to some of the decisions.
16. In Santosh Hazari vs. Purushottam Tiwari (Deceased) by
L.Rs. (2001) 3 SCC 179, this Court held (at pages 188-189)
as under:
".........the appellate court has jurisdiction to reverse
or affirm the findings of the trial court. First appeal is
a valuable right of the parties and unless restricted by
law, the whole case is therein open for rehearing both
on questions of fact and law. The judgment of the
appellate court must, therefore, reflect its conscious
application of mind and record findings supported by
reasons, on all the issues arising along with the
contentions put forth, and pressed by the parties for
decision of the appellate court......while reversing a
finding of fact the appellate court must come into close
quarters with the reasoning assigned by the trial
court and then assign its own reasons for arriving at
a different finding. This would satisfy the court
hearing a further appeal that the first appellate court
had discharged the duty expected of it............"
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18. In H.K.N. Swami v. Irshad Basith,(2005) 10 SCC 243,
this Court (at p. 244) stated as under: (SCC para 3)
"3. The first appeal has to be decided on facts as well as
on law. In the first appeal parties have the right to be
heard both on questions of law as also on facts and the
first appellate court is required to address itself to all
issues and decide the case by giving reasons.
Unfortunately, the High Court, in the present case has not
recorded any finding either on facts or on law. Sitting as
the first appellate court it was the duty of the High Court
to deal with all the issues and the evidence led by the
parties before recording the finding regarding title."
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19. Again in Jagannath v. Arulappa & Anr., (2005) 12 SCC
303, while considering the scope of Section 96 of the Code,
this Court (at pp. 303-04) observed as follows:
"2. A court of first appeal can reappreciate the entire
evidence and come to a different conclusion........."
20. Again in B.V Nagesh & Anr. vs. H.V. Sreenivasa Murthy,
(2010) 13 SCC 530, this Court taking note of all the earlier
judgments of this Court reiterated the aforementioned
principle with these words:
'3. How the regular first appeal is to be disposed of by
the appellate court/High Court has been considered
by this Court in various decisions. Order 41 CPC
deals with appeals from original decrees. Among the
various rules, Rule 31 mandates that the judgment of
the appellate court shall state:
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or
varied, the relief to which the appellant is entitled.
4. The appellate court has jurisdiction to reverse or affirm
the findings of the trial court. The first appeal is a valuable
right of the parties and unless restricted by law, the whole
case is therein open for rehearing both on questions of fact
and law. The judgment of the appellate court must,
therefore, reflect its conscious application of mind and
record findings supported by reasons, on all the issues
arising along with the contentions put forth, and pressed
by the parties for decision of the appellate court. Sitting as
a court of first appeal, it was the duty of the High Court to
deal with all the issues and the evidence led by the
parties before recording its findings. The first appeal is a
valuable right and the parties have a right to be heard
both on questions of law and on facts and the judgment in
the first appeal must address itself to all the issues of law
and fact and decide it by giving reasons in support of the
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findings. (Vide Santosh Hazari v. Purushottam Tiwari,
(2001) 3 SCC 179 at p. 188, para 15 and Madhukar v.
Sangram, (2001) 4 SCC 756 at p. 758, para 5.)
5. In view of the above salutary principles, on going
through the impugned judgment, we feel that the High
Court has failed to discharge the obligation placed on it as
a first appellate court. In our view, the judgment under
appeal is cryptic and none of the relevant aspects have
even been noticed. The appeal has been decided in an
unsatisfactory manner. Our careful perusal of the
judgment in the regular first appeal shows that it falls
short of considerations which are expected from the court
of first appeal. Accordingly, without going into the merits
of the claim of both parties, we set aside the impugned
judgment and decree of the High Court and remand the
regular first appeal to the High Court for its fresh disposal
in accordance with law.' "
Indeed the appellate Court is the final Court of fact
ordinarily, and therefore, the litigants are entitled to a full, fair
and independent consideration of the evidence at the appellate
stage. It is rather a suit, writ large before the appellate court.
The jurisdiction of the first appellate court while hearing first
appeal is wide like the trial Court and it is open to the appellate
Court to re-appreciate all findings of fact and of law in the first
appeal. Rather, it is a statutory duty of the first appellate Court
to re-appreciate the entire evidence and arrive at its own and
independent conclusion for reason assigned either of affirmance
or differences.
8. Since issue of specific performance of the contract -
agreement to sale is involved in the matter, at the outset, let me
refer Section 16(c) of the 'SR Act', which is essential to be
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observed by the plaintiff in its true perspective to obtain the
relief of specific performance of the contract. It reads as under:-
"16. Personal bars to relief.--Specific performance of a
contract cannot be enforced in favour of a person--
xxx xxx xxx
xxx xxx xxx
(c) who fails to 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 prove performance of, or
readiness and willingness to perform, the contract according
to its true construction."
9. Section 16(c) of the 'SR Act' mandates readiness and
willingness on the part of the plaintiff and it is a condition
precedent for obtaining the relief of specific performance.
Plaintiff must aver and prove a continuous readiness and
willingness to perform the contract on his part from the date of
the contract and during the pendency of the suit, the burden lies
upon the plaintiff. (See: M/s. J.P. Builders & Anr. v. A.
Ramadas Rao & Anr., reported in (2010) 12 SCC 588).
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10. Pleading and proof of readiness and willingness in a
suit for specific performance is essential. It is not an empty
formality, but statutory requirement. Failing to the adherence of
requirement of pleading and proof of readiness and willingness
to perform his part of the contract may lead to dismissal of the
suit. The plaintiff must plead and prove a continuous readiness
and willingness to perform his part of contract continuously
from the date of contract and also on date of hearing of the suit.
It is expected that the plaintiff while leading the evidence to
prove readiness and willingness would cover the period from the
date of agreement till the date of the suit.
11. In a recent judgment of the Supreme Court in case of
Sangeeta Sinha v. Bhavna Bhardwaj and Ors., reported in
(2025) LiveLaw (SC) 378, the Supreme Court while assigning
reasons about readiness and willingness to perform the
agreement to sell, surveying the previous authoritative
pronouncements, reiterated the provisions of the law that the
readiness and willingness of the buyer to go ahead with the sale
of the property is required to be established that such readiness
and willingness was continued throughout the pendency of the
suit. The Supreme Court also defined that the readiness and
willingness are not one, but two separate elements, whereby
readiness denotes to capacity of the buyer to perform the
contract whereas willingness refers to the intention of the buyer
as a purchaser to perform his part of the contract.
12. In R. Shama Naik (Supra), the Supreme Court
refers to Section 16(c) of the 'SR Act' (prior to amendment, which
implement with effect from 01.10.2018) held that, a person, who
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fails to have the readiness and willingness to perform his part of
the contract, cannot seek the specific performance of the
contract. Para 8 to 12 reads as under:-
"8. Section 16(C) of the Specific Relief Act, 1963 (prior to
amendment w.e.f. 1.10.2018) bars the relief of the specific
performance of a contract in favour of a person who fails to
aver readiness and willingness to perform his part of the
contract.
9. There is a legion of precedents on the subject of readiness
and willingness.
10. The law is well settled. The plaintiff is obliged not only to
make specific statement and averments in the plaint but is
also obliged to adduce necessary oral and documentary
evidence to show the availability of funds to make payment
in terms of the contract in time.
11. There is a fine distinction between readiness and
willingness to perform the contract. Both the ingredients are
necessary for the relief of specific performance.
12. While readiness means the capacity of the plaintiff to
perform the contract which would include his financial
position, willingness relates to the conduct of the plaintiff."
12.1 Worthy reference can also be made to the judgment
of the Supreme Court in N.P. Thirugnanam (Supra), where the
Supreme Court reiterated the principle that it is essential for the
plaintiff to prove that he was throughout ready and willing to
perform his part of the contract. Para 5, which is relevant, reads
as under:-
"It is settled law that remedy for specific performance is an
equitable remedy and is in the discretion of the court, which
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discretion requires to be exercised according to settled
principles of law and not arbitrarily as adumbrated under
s.20 of the Specific Relief Act 1963 (for short, 'the Act').
Under s.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 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 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
alongwith 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."
12.2 Since it is established provision of law that the relief
of specific performance is an equitable relief and it is lying in
discretion of the Court, which discretion requires to be exercised
according to the settled principles of law and not arbitrarily, as
adumbrated under Section 20 of the 'SR Act'. Thereby it is
unequivocally stated that the Court is not bound to grant the
relief just because the agreement to sell is a valid document.
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13. At the cost of repetition, it is to be stated that Section
16(c) of the 'SR Act', prior to the amendment in the year 2018,
envisages that the plaintiff not only has to plead, but also has to
prove that he had performed or was ever 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 claim the relief of specific
performance. The circumstances are material, relevant and
required to be considered by the Court while granting or refusing
to grant the relief 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 filing of the suit along with other attending
circumstances. The amount of consideration, which plaintiff has
to pay to the defendant, must of necessity be proved to be
available.
14. As stated, the factum of the plaintiff's readiness and
willingness to perform his part of the contract is to be adjudged
with reference to the conduct of the party and attending
circumstances and the Court may infer from the facts and
circumstances whether the plaintiff was always ready and willing
to perform his part of the contract.
15. Coming back to the case on hand, let me first note
that though plaintiff pleaded that they were ready and willing to
perform their part of contract, out of three plaintiffs only one
entered in the witness box. Two others did not choose to enter in
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the witness box. Moreover, admittedly one of the plaintiff had
filed insolvency petition to close his all debt. It is nobody's case
that plaintiff has paid more than Rs.5,001/- towards the sale
consideration, which is totally amounting to Rs.19,00,000/-, till
passing of the judgment and decree impugned in this matter.
16. It is in this factual background that calls for the
perusal of the evidence of the PW1 - Mr. Bhimjibhai (Exhibit-84).
In chief examination, he deposed in line of his plaint. Some of
the excerpts from the cross-examination are material. He
admitted that he was knowing that the total sale consideration of
the land he is going to purchase was amounting to Rs.
19,00,000/- and additionally Rs.2,47,000/- would be borne for
registration of the sale deed. He, in cross-examination, further
admitted that at the time of the execution of the agreement to
sell and at the time of filing of the suit, he had sufficient money
to pay, which fall in his share comes around 7,00,000/-. He has
further admitted that he has some evidence to show that he was
possessing Rs. 7,00,000/- at the time of filing of the suit.
However, he bluntly denied to produce the relevant document to
establish that capacity to pay Rs. 7,00,000/-, which is falling in
his share.
16.1 He has further admitted that the two other plaintiffs
may have arranged for money, which comes in their share.
However, explained that he has not asked for any documentary
evidence to show their capacity to pay the remaining amount of
their share and even did not ask them. He has also bluntly
refused to ask remaining two plaintiffs about their source to pay
the sale consideration. This deposition coming during the course
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of examination assumes the significance and raises serious
doubt about the intention to pay sale consideration. The capacity
of the plaintiffs to pay the amount of sale consideration seriously
challenged by the defendant. Only one of the plaintiff entered
into the witness box. No explanation is offered that why two
other witnesses co-purchaser have not entered into the witness-
box. Their non-appearance in witness-box assumes significance,
as one of the plaintiff entered into the witness-box, did not
depose financial capacity of two other witness. Though one of the
plaintiff pleaded that he had Rs.7,00,000/- with him to deposit
the same before the Court, he did not produce any supportive
evidence and bluntly refused to produce any supportive
document when he was told to produce before the Court.
Notably, during the pendency of the suit, none of the plaintiffs
have deposited their share of the sale consideration individually
or collectively. The capacity to pay the money of the other two
plaintiffs were also challenged by the defendant during the
cross-examination. Aptly yet the remaining two plaintiffs did not
choose to enter in the witness box. It was a clear case to draw
adverse inference against the plaintiff and seriously to doubt
about their continuous readiness or willingness to perform their
part of the contract.
16.2 Further, the stamp paper upon which the agreement
to sell was recited, was purchased by Mr. H.J. Lalakiya, advocate
on 30.03.1991. He was the advocate representing plaintiff and
defendant at various point of time. The agreement to sell was
executed on 15.04.1991. It contains the thumb impression of the
defendant and not the signature. Out of two attesting witnesses,
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the signature of Mr. Jivraj R. Patel is readable, signature of the
other attesting witness is not readable. The date on the
agreement to sell is over written. None has signed near the
overwriting of the signature.
17. Seeing this factual aspect, if we appreciate the cross-
examination further, it appears that during the course of leading
the oral evidence, notice and reply were exchanged between the
party produced at Exhibits-102 and 103. By notice at Exhibit-
102, the defendant called the plaintiff to produce certain
documents to examine his capacity to purchase the suit property
and to pay Rs. 19,00,000/- being a sale consideration. The
defendant asked the plaintiff to produce the pass books from
1992 to 1995 belonging to Bhavani Saw Mill, the business
concern of the plaintiff, other certain documentary evidence and
also the account of all three plaintiffs.
18. This notice has been replied vide Exhibit-103 and
whereby, plaintiffs advocate Mr. R.M. Vora openly refused to
supply the copy of any of the documentary evidence, or to
produce them in trial.
19. Even during the cross-examination, plaintiff again
refused to produce the document called to be produced vide
Exhibit-102.
20. Some other facts coming in the cross-
examination of the plaintiff are also necessary to visit. The
plaintiff admits that he was not knowing whether the defendant
was a Karta or Manager of the HUF before or at the time of
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execution of the Satakhat (Agreement to Sale). He was also not
knowing that which other persons consisting of the HUF and he
has never inquired about it even during the suit proceedings. He
has admitted that the Manager of the HUF has no right to
execute the sale deed of the HUF property, except taking up
signatures of all the members on the sale deed. He has further
admitted that he is not ready to get executed the sale deed of the
suit land if other members of the HUF are not ready and willing
to sign the sale deed. At this juncture, it is important to observe
that other members of the HUF are not joined as a party and yet,
the learned trial Court in utter ignorance of this clear and
unequivocal admission passed the decree of specific
performance. It is further admitted that the plaintiff has not
attempted to take the signatures of other members of the HUF.
21. It is in presence of these evidence, let refer the
Exhibit-122 - the agreement to sell. It is alleged to have been
executed between the three plaintiffs on one side and Mr.
Bhavabhai Karshanbhai Patel on the other side, who has
executed the same in capacity of Karta of the HUF. The condition
No.1 thereof speaks that the sale deed has to be executed after
obtaining the permission under section 26(1) of the 'ULC Act'.
Plaintiff admits that to obtain the permission under Section
26(1) of the 'ULC Act', the affidavit of the purchaser and seller
both are necessary.
22. Sections 26(1) and (2) of the 'ULC Act' reads as
under:-
"26. (1) Notwithstanding anything contained in any other
law for the time being in force, no person holding vacant
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land within the ceiling limit shall transfer such land by way
of sale, mortgage, gift, lease or other-wise except after giving
notice in writing of the intended transfer to the competent
authority.
(2) Where a notice given under sub-section (1) is for the
transfer of the land by way of sale, the competent authority
shall have the first option to purchase such land on behalf of
the State Government at a price calculated in accordance
with the provisions of the Land Acquisition Act, 1894 or of
any other corresponding law for the time being in force and
if such option is not exercised within a period of sixty days
from the date of receipt of the notice, it shall be presumed
that the competent authority has no intention to purchase
such land on behalf of the State Government and it shall be
lawful for such person to transfer the land to whomsoever
he may like:
Provided that where the competent authority exercises
within the period aforesaid the option to purchase such land
the execution of the sale deed shall be completed and the
payment of the purchase price there-of shall be made within
a period of three months from the date on which such option
is exercised."
23. Perusal of the Section 26(1) of the 'ULC Act' indicates
that, the sale, mortgage, lease or otherwise transaction of a
person's holding or of a vacant land held by a person within the
ceiling limit would not be permissible before giving notice in
writing to the intended transfer to the competent authority.
Section 26(2) of the 'ULC Act' gives preemptive right to the State
Government. According to it, State Government has priority right
to purchase land. If the holder is intended to transfer.
24. In view of Section 26 of the 'ULC Act', the agreement
to sell containing the specific terms at serial No.1 to obtain the
permission becomes a conditional agreement to sell. It mandates
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that, before realizing the sale or transfer, it is incumbent to
inform, by way of notice in writing to the competent authority.
Although the plaintiff complained that the defendant did not
carry out any procedure to obtain the permission from the
competent authority, the plaintiff, at no point of time, did carry
any procedure to do so or reminded the defendant to do so. At
least no such evidence is produced on record. The learned trial
Court granted the conditional decree and directed the defendant
to obtain the permission under Section 26 of the 'ULC Act' before
executing the sale deed. I am seriously doubt that whether the
learned Civil Court can do so, more particularly when taking a
permission is not an empty formality, but contains a right in
favor of the competent authority to purchase such land on behalf
of the State Government, which is no less than a preemptive
right, as Section 26(2) contains the phrase "competent authority
shall have the first option to purchase such land on behalf of the
State Government". Therefore, the statute - 'ULC Act' indicates
that whether to grant permission or not is within the domain
and jurisdiction of the competent authority and even if the
competent authority decides to grant the permission, it would
have a first option to purchase the same on behalf of the State
Government. By no stretch of imagination, Civil Court got
jurisdiction to divert competent authority to grant permission
under Section 26(2) of the 'ULC Act'. According to this Court,
learned Civil Court, by all means, exceeded its jurisdiction in
issuing discretion to competent authority.
25. The conspicuous fact, which has not been noticed by
the learned trial court while granting the decree, that plaintiff
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filed the suit for specific performance only on paying an
insignificant amount of Rs.5,001/- as advance against the total
sale consideration of Rs.19,00,000/-.
26. In identical facts situation in Pushparani S.
Sundaram and Ors. v. Pauline Manomani James (Decd.) and
Ors., reported in (2002) 9 SCC 582, the Supreme Court held
that payment of insignificant amount as advance and not
obtaining the permission from ceiling authority or had not taken
any steps towards the ascertainment of the valuation and not
obtain permission from ceiling authority would be a weak
filament to stand even to build an image of readiness and
willingness.
27. Applying the aforesaid ratio to the facts of the present
case, this Court, without hesitation, comes to the conclusion
that the plaintiff neither proved that he was ever ready to
perform his part of the contract nor proved that he was willing to
perform his part of the contract. Rather, he was reluctant than
willing to perform his part of the contract. At no point of time, he
was ready with either money or resources to fulfill his part of the
contract. The other attending circumstances recorded by this
Court hereinabove goes to show that the plaintiff hopelessly
failed to prove readiness and willingness to perform his part of
the contract.
28. At the cost of repetition, it could be well noticed that
two other plaintiffs, whose capacity to perform their part of the
contract is seriously doubted, did not attend the witness box.
Plaintiff, who has been called to produce certain documents even
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by a written notice, beside raising it in a cross-examination,
bluntly, openly and flatly denied to produce such document
gives a fortiori elucitable conclusion that, that the plaintiff was
never ready and willing to perform his part of the contract. This
escapable conclusion, has not been properly, legally and
justifiably decided by the learned trial Court. Though the
impugned judgment being bulky, runs in 81 pages, it failed to
address that whether the plaintiff proved readiness and
willingness and thus, the judgment and decree impugned is
flawed, imperfect, broken of reasons and falliable and it has to
be set aside.
29. Before parting with the judgment, let me refer the
judgment relied upon by learned advocate Mr. D.K. Puj
appearing for the respondent - plaintiff.
30 In Jai Jai Ram Manohar Lal (Supra), it was a case
where dispute about leave to amend the plaint in which the
Supreme Court decided that when can be given amendment to
the plaint to sue on behalf of the joint Hindu family. The finding
in this judgment by no way helps the respondent - plaintiff's
case.
31 As far as judgment of Basavaraj (Supra) is
concerned, the Supreme Court held that unless plaintiff was
called upon to produce the passbook either by the defendant or
by the Court ordering him to do so, no adverse inference can be
drawn from the same for non-production of the pass book.
32. In the present case, as discussed hereinabove, in no
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uncertain terms, in the cross-examination as well as by way of
Exhibit-102, plaintiff was called to produce all the relevant
documents, whereby he flatly denied to produce those
documents, and therefore, it's a fit case to draw the adverse
inference. The judgment, the ratio of the judgment, therefore, is
not helping the case of the respondent - plaintiff.
33. In Beemaneni Maha Lakshmi (Supra), the Supreme
Court, in the factual aspects of the case, held that whether
plaintiff possess sufficient funds to pay balance consideration is
inconsequential when defendant himself failed to perform his
part of the contract and moreover, if plaintiff demonstrated his
bona fide when called upon by the Court to deposit balance
consideration is needed to be considered as a readiness of the
plaintiff. The case on hand is factually distinguishable. It was a
case where the Civil Court trying the suit has directed the
plaintiff to deposit the amount and pursuant to which, the
plaintiff has deposited the balance amount.
34. In the case on hand, the Civil Suit was filed in the
year 1991. Plaintiff did not pay any balance amount. The decree
was passed on 16.03.1999, yet plaintiff has not deposited any
amount of balance consideration. It is to be reminded that in a
cross-examination the plaintiff's capacity to pay the amount has
been seriously doubted. The plaintiff deposited the sale
consideration first time during the execution proceedings, that
too, in the year 2008.
For suit filed in year 1991 in regards to specific
performance of the agreement to sale dated 15.04.1991
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depositing balance sale consideration in year 2008, that too,
during the execution proceeding, it cannot be treated as
plaintiff's readiness and willingness.
Hence, the finding in these judgments, by no way,
helps the plaintiff-respondent's case.
35. Thus, in the premise of the aforesaid reasons,
according to this Court, the appeal deserves consideration. The
impugned judgment and decree deserves to be set aside and
further, suit is required to be dismissed.
36. Consequently, the appeal is allowed. Impugned
judgment and decree dated 16.03.1999 passed in Special Civil
Suit No.301 of 1991 is hereby quashed and set aside and in
effect thereof, the Special Civil Suit No.301 of 1991 stands
dismissed.
37. Decree to be drawn accordingly.
38. The plaintiff-respondent shall borne throughout cost.
39. The plaintiff-respondent herein would be at liberty to
take back the amount of sale consideration he has deposited in
the execution proceedings, with accrued interest thereon, if any.
40. Connected Civil Applications do not survive.
41. Interim-relief, if any granted earlier, stands vacated.
Record & Proceedings be sent back to the concerned Court
forthwith.
Sd/-
[
(J.C. DOSHI, J.)
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After pronouncement of the judgment, learned advocate
Mr. D.K. Puj requests the Court to stay the operation, execution
and implementation of this judgment for 08 weeks. For the
aforestated reasons, request is rejected.
Sd/-
(J.C. DOSHI, J.)
Raj
