Md. Anwar Hussain vs Md. Khursheed Alam
2025 Latest Caselaw 2907 Jhar

Jharkhand High Court

Md. Anwar Hussain vs Md. Khursheed Alam on 27 February, 2025

Author: Anubha Rawat Choudhary

Bench: Anubha Rawat Choudhary

       IN THE HIGH COURT OF JHARKHAND AT RANCHI

                       S. A. No. 52 of 2022

       Md. Anwar Hussain, aged about 77 years, son of Late Habib Mia,
       resident of Digwadih No. 10, P.O.- Jealgaon, P.S.- Jorapokhar,
       District- Dhanbad presently residing at Rehmatganj P.O. B
       Polytechnic, P.S. Bank More, District- Dhanbad.
                          ...      ...    Defendant/Respondent/Appellant
                             Versus
    1. Md. Khursheed Alam
    2. Md. Rizwan Ahmed.
       Both respondent No. 1 and 2 are sons of Hazi Altaf Hussain
       Resident of Digwadih No. 10 P.O. Jealgora, P.S. Jorapokhar,
       District- Dhanbad, Jharkhand.
                         ... ...         Plaintiffs/Appellants/Respondents
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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    For the Appellant        : Mr. Vibhor Mayank, Advocate
    For the Respondents      :
                             ---

12/27.02.2025

1. Heard the learned counsel appearing on behalf of the appellant.

2. Inspite of service of notice and given opportunity to the respondent to appear in this case, nobody has entered appearance.

3. This appeal has been filed challenging judgment dated 05.04.2022 (decree signed on 16.04.2022) passed by the learned District Judge-I, Dhanbad in Civil Appeal No. 24 of 2020. The appeal preferred by the plaintiffs was allowed and the judgment dated 23.02.2019 passed by learned Civil Judge (Senior Division)-I, Dhanbad in Title Suit No. 73 of 2010 was set aside. The defendant is the appellant.

4. Original Suit No. 73 of 2010 was filed seeking specific performance of contract as per agreement dated 19.03.2008 which was dismissed and the trial court directed the defendant to return the amount of Rs.1,00,000/- as received by the defendant to the plaintiffs along with simple interest of 6% per annum.

5. This appeal was admitted for final hearing vide order dated 27.01.2025 on the following substantial question of law:-

"Whether the learned first appellate court has committed a substantial error of law while reversing the decree of the learned trial court and failed to consider that readiness and willingness on the part of the plaintiffs was not proved as the plaintiffs failed in disclosing the source through which they would pay the balance consideration amount of Rs. 1,80,000/-?"

6. The learned counsel for the appellant while referring to the plaint has submitted that the averments regarding readiness and willingness has been made in paragraph 9 of the plaint and has submitted that there is just a mere statement and no further details regarding the source of fund to pay the balance consideration amount has been disclosed in the plaint . Paragraph 9 of the plaint is quoted as under:-

"9. That the plaintiffs are still ready and willing to purchase the said property morefully described in the schedule of the plaint by paying the balance consideration amount of Rs.1,80,000/- to the defendant besides incurring expenses for completion of the deed and the defendant is legally bound to execute registered sale deed in favour of the plaintiffs in terms of agreement dated 19.03.2008."

7. The learned counsel further submits that the learned trial court had scrutinized the materials on record and framed the issue regarding readiness and willingness being issue No. VII and decided issue No. V, VI and VII together. The Issue No. V, VI and VII are quoted as under:-

"Issue No. V : Whether the plaintiff is entitled for a decree of specific performance of contract on the basis of the agreement dated 19.03.2008 ?

Issue No. VI : Whether the agreement dated 19.03.2008 is genuine ?

Issue No. VII : Whether the plaintiff was ready and willing to perform his part of any contract by paying the balance amount to the defendant ?

8. However, the appeal has been admitted only on the point of readiness and willingness on the part of the plaintiffs.

9. The learned counsel for the appellant has referred to the trial court's judgment and has submitted that the evidence of PW- 1(plaintiff) has been considered in details and in paragraph 26 of the cross examination PW-1 admitted that he had performed the marriage of his daughter in the year 2008 and paragraph 29 of his cross examination he deposed that "cdk;k jde dk tqxkM vius yksxks ls tqxkM fd;k Fkk bldk dksbZ dkxtkr ugha cuk FkkA", meaning thereby that in order to pay the balance amount he had made arrangements from his own people but did not prepare any document to this effect.

10. The learned counsel submits that the evidence of PW-1 goes to show that he had claimed to have made arrangement for payment of balance considerations from other persons and no details has been given in the plaint nor any further details has been given in the evidence and the plaintiff also admitted that no document for that purpose was prepared.

11. The learned counsel has submitted that the learned trial court after scrutinizing the materials came to specific finding in paragraph 11(iii) and held that the evidence of plaintiffs showed that the plaintiffs have no independent source of income so it must be held that the plaintiffs were neither ready nor willing to perform their part of contract. Paragraph 11(iii) of the trial court's finding is quoted as under:-

"11. (iii) Whereas, the question of willingness and readiness is concerned in the present suit in hand, the plaintiffs have not filed or exhibited any cogent evidence in support of their averments that they have offered how many remaining consideration amount on which dates by which lawful means and mode i.e. by cheque or by demand draft. There is nothing to show that the plaintiffs approached the defendant for payment of rest consideration amount on particular date and time within stipulated period of one year. Moreover, it is settled principle of law as the Hon'ble Apex Court has held in case Reported in 2018 (2) J.B.C.J. 2030SC, Kalawati (D) Through LRs. & Ors.

Vs. Rakesh Kumar and Ors. have pleased to hold that " by readiness it may be meant capacity of plaintiff to perform contract which would include financial position to pay purchase price as far as willingness to perform contract is concerned, conduct of plaintiff has to be properly scrutinized along with attendant circumstances." On the case record, there is nothing to show or satisfies this court that the plaintiffs were in possession to pay balance consideration amount of Rs.1,80,000 if any. There was nothing to brought by the plaintiffs to show that there was legal source of income of the plaintiffs to pay remaining amount. On perusal of para-29 of P.W.1 namely Khursid Alama, who is plaintiff of the present suit, deposed as follows : "cdk;k jde dk tqxkM vius yksxks ls tqxkM fd;k Fkk bldk dksbZ dkxtkr ugha cuk FkkA" So the evidence of plaintiffs show that the plaintiffs have no independent source of income, so it must be hold that the plaintiffs have neither ready nor willing to perform their part of the contract."

12. The learned counsel thereafter referred to the judgment passed by the learned appellate court and has submitted that the point of determination No. (1) as framed in paragraph 13 of the appellate court judgment relates to readiness and willingness on the part of the plaintiffs to perform the agreement and further referred to paragraph 15 of the appellate court's judgment to submit that the evidence of PW-1 was considered and reference was made to paragraphs 13, 15, 16, 17, 18, 24, 32 and 33 where PW-1 was said to have clarified the source of income as the plaintiff was an income tax payee and used to file GST and its return from his 'Biri making business'. The learned counsel has also submitted that the appellate court has referred to further cross examination of P.W-1 that his 'Biri making business' in the name of 'Aftab Bidi' was seized and was not functional and on the basis of the fact that he was filing his income tax and GST return, the appellate court recorded a finding that there was readiness and willingness on the part of the plaintiffs to perform their part of

contract. The learned counsel has submitted that even the income tax returns /GST returns were not exhibited.

13. The learned counsel has further submitted that the appellate court has observed that it was upon the defendant to show that 'Bidi Making business' which was running in the name of 'Aftab Bidi' was closed earlier. The learned counsel has submitted that the learned appellate court has not at all considered the evidence of PW-1 in paragraph 29 where he had specifically stated that he made arrangement for payment of balance consideration money from third party. The learned counsel submits that the appellate court has ignored the portion of cross examination of PW-1 in paragraph 29 which has material bearing in the matter. He has also submitted that the averments in the plaint did not disclose the source of arrangement of fund as to whether he was arranging the fund from his own source or he was arranging the same from third party.

14. The learned counsel has further submitted that the ultimate finding in connection with readiness and willingness is primarily based on the evidence of PW-1 and the finding recorded by the learned appellate court is as under:-

"15........ Applying the above principle of law in the present case, I find that PW-1 being one of the plaintiff and full brother of plaintiff No. 2 has specifically deposed that he had arranged the requisite amount of Rs 1,80,000 just after about 3-4 months of sale agreement. Therefore the plaintiffs are not expected to exhibit the currency notes, as held in Pushpa's case (supra) to show their readiness and willingness. In the ultimate analysis and on the basis of oral evidence of witnesses examined on behalf of either sides and main particularly after careful scrutiny of oral evidence of PW-1 who admittedly is the plaintiff No. 1, I come to the conclusion that the plaintiffs were and are capable enough financially to pay the balance amount of Rs. 1,80,000 and they just after 3-4 months of the sale-agreement had arranged/ managed the given amount which was to be paid in favour of the defendant. An inference may therefore be drawn

out rightly that the plaintiffs have succeeded in establishing that they were and are ready and willing to perform their part of sale-agreement of handing over remaining amount of cash worth Rs 1,80,000. Accordingly the Point No 1 is decided in favour of the plaintiffs and against the defendant and finding of the court below to the given effect above, is rejected......."

15. The learned counsel has submitted that the appellate court while reversing the finding in connection with readiness and willingness to perform the agreement has not even met with the reasons and the materials considered by the learned trial court.

16. He has relied upon the following judgments:-

a. U.N. Krishnamurthy (Since Deceased) Thr. Lrs. V. A. M. Krishnamurthy reported in 2022 SCC OnLine SC 840 paragraph 24, 25 and 46 on the point of readiness and willingness to perform the agreement.

b. Judgment in Special Leave Petition (Civil) No. 13933 of 2021 (R. Shama Naik v. G. Srinivasiah) decided on 28th November, 2024 paragraph 10 to 12 on the point of readiness and willingness to perform the agreement.

c. Shenbagam and Others v. K. K. Rathinavel reported in 2022 SCC OnLine SC 71 and has submitted that the principal regarding readiness and willingness has been considered in the said judgment d. Srinivas Raghavendrarao Desai (Dead) by Lrs. v. Kumar Vamanrao alias Alok and Others reported in 2024 SCC OnLine SC 226 paragraph 25 to submit that the parties cannot be permitted to lead evidence beyond pleadings. He has submitted that in absence of any pleading referring the source of income to perform the part of the agreement to pay a balance considering amount, no evidence could have been led by the plaintiff with regard to source of fund.

17. The learned counsel has submitted that the substantial question of law be decided in favour of the appellants.

18. Argument concluded.

19. Post this case for judgement on 03rd March, 2025.

(Anubha Rawat Choudhary, J.) Rakesh/-