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Anwarul Haq (Deceased by L. Rs.) Vs. Nizam UddIn (Deceased by L. Rs.) and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 2536 of 1969
Judge
Reported inAIR1984All136
ActsSpecific Relief Act, 1963 - Sections 16; Code of Civil Procedure (CPC) , 1908 - Order 6, Rule 3
AppellantAnwarul Haq (Deceased by L. Rs.)
RespondentNizam UddIn (Deceased by L. Rs.) and anr.
Appellant AdvocateA.N. Verma and ;S.N. Verma, Advs.
Respondent AdvocateI.A. Khan, Adv.
DispositionAppeal dismissed
Excerpt:
.....relief act, 1963 and order 6 rule 3 of code of civil procedure, 1908 - language of plaint for specific performance must contain declaration by plaintiff to perform his part of contract - declaration must be read in a wide perspective - no specific language specified by law. - - the law commission recommended insertion of this specific provision in the new act. to my mind the dictum of the supreme court quoted above clearly points the broad perspective in the light whereof the issue covering the averments as well as the proof has to be adjudged. the strait-jacket formula discarded for purposes of appreciation of evidence cannot be adopted as good to construe the pleadings which, as is well known, seldom conform strictly to the exemplars contained in various forms incorporated in..........sri s. n. verma, learned counsel for the appellants submitted that there was no agreement to sell executed by the defendant no. 1 in favour of the plaintiff on oct. 29, 1963 and that the defendant no. 2 did not have notice of any such agreement. both these contentions are concluded by the concurrent findings of fact. the agreement was found duly executed vide ex. ii. in regard to the notice it, was held on the basis of the evidence placed on the record that the defendant no. 2 had been present personally when the agreement was executed. the testimony of the plaintiff to this effect was accepted by both the courts below. there is no perversity shown to exist in relation to these findings. in view thereof these contentions have to be rejected.6. sri s. n. verma learned counsel for.....
Judgment:

B.D. Agarwal, J.

1. This appeal is directed against the judgment and decree of the Second Temporary Civil & Sessions Judge, Azamgarh dated Aug. 23, 1969.

2. The defendant No. 1 was the Bhu-midhar of the land specified at the foot of the plaint. On Oct. 29, 1963 he entered into an agreement in writing to sell, this land to the plaintiff for consideration of Rs. 4000/- of which a sum of Rs. 500/- was paid by the plaintiff to the defendant No. 1 the same day as earnest. The sale was to be executed after obtaining permission from the Settlement officer (Consolidation) since the land in question was under consolidation proceedings. The plaintiff asked the defendant No. 1 to apply for the permission which the defendant no. 1 did. On the permission being obtained the plaintiff insisted upon the defendant No. 1 to execute the sale in his favour and obtain the balance of the sale Consideration. This was evaded by the defendant No. 1. On Dec. 21, 1963, the defendant No. 1 executed sale of the land in favour of the defendant No. 2. The plaintiff required him to rescind the sale but to no effect. The suit was instituted with these allegations on March 23, 1964 seeking the relief of specific performance of the agreement to sell.

3. In defence the defendant No. 2 averred that there was no agreementto sell arrived at between the plaintiff and the defendant No. 1. It was refuted that the defendant no. 2 had notice of any such agreement. The plea taken was that he was a bona fide purchaser for consideration of Rs. 4800/- without notice. The defendant No. 1 did not put in contest and the suit proceeded ex parte against him.

4. The trial court found against the defendant no. 2 on both the pleas raised by him. The agreement to sell was found to be duly executed on Oct. 29, 1963, it was also found that the defendant No. 2 had notice to that agreement. The suit was, therefore, decreed for the relief of specific performance of agreement to sell on March 31, 1960. The appeal filed by the defendant No. 2 against the decree was dismissed on Aug. 23, 1969. The findings recorded by the trial court on both the points were affirmed. Aggrieved the defendant No. 2 preferred this appeal. Due to his death during the pendency of the appeal the legal representatives were brought on the record.

5. Sri S. N. Verma, learned counsel for the appellants submitted that there was no agreement to sell executed by the defendant No. 1 in favour of the plaintiff on Oct. 29, 1963 and that the defendant No. 2 did not have notice of any such agreement. Both these contentions are concluded by the concurrent findings of fact. The agreement was found duly executed vide Ex. II. In regard to the notice it, was held on the basis of the evidence placed on the record that the defendant No. 2 had been present personally when the agreement was executed. The testimony of the plaintiff to this effect was accepted by both the courts below. There is no perversity shown to exist in relation to these findings. In view thereof these contentions have to be rejected.

6. Sri S. N. Verma learned counsel for the appellants has contended chiefly, however, that there has been no compliance to the mandatory requirement of Section 16(c) Specific Relief Act, 1963 and, therefore, the suit could not be decreed for specific performance. In terms of Section 16(c) specific performance of a contract cannot be enforced in favour of a person 'who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him......' FormNo. 47 of Appendix A of the First Schedule of the Civil P. C. which reads as under was also referred to-

'The plaintiff has been and still is ready and willing specifically to perform the agreement on his part of which the defendant has had notice.'

7. The argument put forward is thatthe plaint does not contain this averment and in the absence thereof there could be no evidence adduced on the point nor have the courts below recorded a finding that the plaintiff respondent had been and continued to be ready and willing to perform his part of the contract.

8. Under the terms of the agreementto sell dated 29th Oct. 1963 (Ex. 2) thesale was to be executed after obtainingpermission of the Settlement Officer (Consolidation). The permission was to betaken by the defendant No. 1 the vendor.This was a condition precedent to sale.A sum of Rs. 500/- was indisputedlypaid as earnest on the same date. Theplaintiff referred to these facts in paras4 and 5 of the plaint. In para 6 he narrates that he asked the defendant No. 1to apply for the permission which thelatter did and the permission was obtained too where after it is also averred,the plaintiff asked the defendant No. 1to execute sale in his favour but thedefendant no. 1 kept on avoiding thesame. In para 7 he refers to sale dated21-12-1963 executed by the defendantNo. 1 in favour of the defendant no. 2In para 9 it is reiterated that on comingto know of this sale, the plaintiff re-quired the defendant No. 1 to rescindthis sale and to execute sale to the plaintiff in terms of the agreement but thedefendant No. l declined, and hence thesuit brought soon after on March 23,1964 for specific performance on payment of balance of sale consideration. Inthe written statement of the defendantNo. 2 there is no specific denial of theseaverments of parns 6 and 9 of the plaintwhile the defendant no. 1 abstainedfrom filing any written statement. Inhis deposition the plaintiff maintainedthat he had been persisting upon the defendant No. 1 to execute the sale in hisfavour but to no effect. There is nocross examination directed against thisaspect.

9. In the old Specific Relief Act, 1877 there was no express provision that the averment of readiness and willingnesswas necessary for a suit to enforce specific performance. In Ardeshir H. Mama v. Flora Sarsoon (AIR 1928 PC 208). it was observed that on principle the Indian and the English requirements in this matter were the same. The law Commission recommended insertion of this specific provision in the new Act. The provision has come in for interpretation in a large number of cases. The appellant's learned counsel referred to the decisions reported in Prem Rai v. D. L. F. Housing and Construction (Pr.) Ltd. : [1968]3SCR648 . Ouseph ' Varghese v. Joseph Aley : [1970]1SCR921 Raien-dra Prasad v. Rajdeva Rai : AIR1974All294 , Manohar Lal v. Smt. Raje-shwari Devi : AIR1977All36 ; Mahmood Khan v. Ayub Khan : AIR1978All463 (Division Bench): Narendra Bahadur Singh v. Baijnath Singh : AIR1981All410 (Division Bench): Mukhtiar Singh v. Dharampal Singh (1981 All LJ 119 (Division Bench) and Surai Singh v. Sohan Lal : AIR1981All330 ). The submission made on the strength of these authorities is that in the absence of the averment referred to above, the plaint does not disclose a cause of action and that it is of no consequence for this purpose that the defendants did not plead or join issue and no issue was, therefore, passed bv the trial court.

10. In Prem Rai v. D. L. F. Housing and Construction (Pr.) Ltd. : [1968]3SCR648 (supra) which has constituted the leading authority on the subject, it was observed at page 1357 :

'In the present case, no such averment is made in the plaint. On the other hand, the plaintiff has alleged that the agreement was a result of fraud and undue influence and was not binding upon him. For these reasons it must be held that so far as the relief of specific performance is concerned, the plaintiff has no cause of action'. (Emphasis mine).

11. The crux, therefore, is that the plaintiff was said to have no cause of action because in face of the contention that the agreement was vitiated by fraud and undue influence jt would have been incongruous to say that the plaintiff averred readiness and willingness to form his part of the contract. This decision was followed in Ouseph Varghese v. Joseph Alien : [1970]1SCR921 . From the report, however, we do not get a precise idea of the actual contents of theplaint in this context. The proper approach to the matter is laid by the Supreme Court in Ramesh Chandra Chand-lok v. Chuni Lal : [1971]2SCR573 , it was observed :

'Readiness and willingness cannot be treated as a strait-jacket formula. These have to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned.'

12. It was argued that in this case the plaint contained the requisite averment and hence it is distinguishable. I had occasion to consider similar, conten-t on advanced before me in Dhian Singh v. Tarachand (Second appeal no. 2538 of 1978) decided on 22-9-1983 : (reported in : AIR1984All4 ) and I stated:

'Learned counsel argued that the question therein was not as to averments in the pleading but with regard to the proof of readiness and willingness. To my mind the dictum of the Supreme Court quoted above clearly points the broad perspective in the light whereof the issue covering the averments as well as the proof has to be adjudged. It would be much too artificial and highly technical to draw a dichotomy in construing the pleading on the one hand and in appreciating the evidence on the other. The strait-jacket formula discarded for purposes of appreciation of evidence cannot be adopted as good to construe the pleadings which, as is well known, seldom conform strictly to the exemplars contained in various Forms incorporated in appendix A of the Civil P. C. .'

13. Rule 3 of Order VI Civil P. C. itself specifies that the Forms in appendix A of the First Schedule when applicable, as nearly may be, shall be used for all pleadings. This evidently per-mits a departure from the language used provided the substance remains fulfilled. The substantive provision contained in Section 16(c) does not insist upon a particular set of words to be used: the averment must in substance indicate the continuous readiness and willingness on the Dart of the person suing. The Form prescribed under Order 6, Rule 3 is proce-dural, it is a rule of pleading, this has for its oblect the advance of cause of justice and it is not intended to short circuit decision on merits. It is procedural, something designed to facilitate iustice and further its end not a penal enactment see Smt. Dipo v. WassamSingh : [1983]3SCR20 ; Kalipada Day v. B. K. Sen Gupta AIR 1983 SC 376); Sangram Singh v. Election Tribunal, Katak : [1955]2SCR1 I am inclined for these reasons to agree with respect with the view expressed in Virendra Kumar v. Dava Nand (1982 All WC 176): Prag Datt v. Smt. Saraswati Devi : AIR1982All37 . Shakoor v. Palakdhari (1983 All WC 737) that the court in suitable cases should look into the totality of circumstances and the allegations made in the plaint and from them come to a conclusion whether necessary allegations have been made by the plaintiff in that regard. No particular language or phraseology need be employed by the plaintiff. A literal compliance to the language appearing in Forms 47 and 48 qf the Appendix A is not imperative nor is this the requirement of law.

14. The plaintiff in the instant case avers that he asked the defendant No. 1 to apply for permission of the Settlement Officer (Consolidation). The defendant No. 1 did that whereafter the plaintiff required him to execute sale in his favour but that was of no effect. Instead the defendant No. 1 made sale to the defendant No. 2. The plaintiff asked this sale to be rescinded but the defendant No. 1 did not accede. I fail to understand that all this does not necessarily imply the averment of continuous readiness and willingness on the plaintiffs part. There is nothing to suggest that he was imploring upon the defendant No .1 to sell without being ready and willing on his side to pay the balance of consideration. That averment is necessarily implicit in what he pleads Coupled with this is the fact that the suit was brought forthwith without waiting to let the statutory limita-tion expire and there is then the com-plete absence of a plea by the defen-dants traversing these allegations. Unless the court were to resort to a strait Jacket formula which the Supreme Court deplores, it seems difficult to accept that the plaint does not disclose the cause of action for the relief of specific performance.

15. For the foregoing discussion theappeal fails and is dismissed with coststo the respondent No. 1 except for thismodification that the balance of the saleconsideration shall be payable to the appellants.


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