1. This is a second appeal by defendants Nos. 2 and 3 against the judgment and decree of the District Judge Chandigarh, dt. 19th May, 1975.
2 Briefly, the facts are that Mehar Singh defendant No. 1 was. the owner of two houses situated in Mani Majra, which were under mortgage with Jagir Singh defendant No. 3 For a sum of Rs. 3,000/-. He entered into an agreement to sell the houses with Raminder Singh defendant No. 2 vide agreement deed dt. 27th December, 1970 (Exhibit D-1). Later, on 3rd January 1971, he made an agreement for sale of the said houses with the plaintiff for g sum of Rs. 4,800/-. The agreement to sell is Exhibit P. 7. Out of the consideration. an amount of Rs. 300/- was paid by the plaintiff as advance to him. Out of the balance a sum of Rs. 3,000/- was to be paid by the plaintiff to the mortgagee and Rs. 1500/- to defendant No. l at the time of execution of the sale deed which was to be got executed within one week. On 5th January, 1971, a sale deed was executed by defendant No. 1 in his favour on a judicial stamp paper of Rupees 300/- and was presented before the Sub-Registrar Jagir Singh raised an objection before the Sub-Registrar that defendant. No. 1 had agreed to sell the house to him and. therefore, the sale-deed be not registered. The Sub-Registrar accepted ha request and did. not register the sale deed.
3 Defendant No. 2. on 11th January, 1971, instituted a suit in the Court of Subordinate Judge IInd Class. Chandigarh, for specific performance of the agreement of sale dated 27th December, 1970, Exhibit D. 1. and obtained an ad interim injunction against defendant No. 1. restraining him to sell the houses to the plaintiff. Ultimately. the suit was dismissed on 28th February. 1972. on the ground that defendant No. 2 was not ready and willing to perform his part of the agreement. Defendant No. 1, on the same day executed two fresh sale deeds, Exs. P. 1 and P. 2 in favour of the plaintiff and those were presented before the Sub-Registrar for registration. Defendants Nos. 2 and 3 appeared before the Sub-Registrar and represented to him that they wanted to file an appeal against the decree of the Subordinate Judge IInd Class and therefore the sale deeds be not registered for some time. The Sub-Registrar accepted their prayer. However, they did not file any appeal.
4. On 4th May, 1972. defendant No. 2 got a Sale deed executed in his favour regarding the houses from defendant No. 1. On 5th May, 1972, Sham Lal filed the present suit for specific performance of the agreement dt. 3rd January, 1971, and obtained an ad interim injunction restraining defendant No. 1 from transferring the houses in favour of defendants Nos. 2 and 3 or any other person till further orders. It appears that at the time of filing the suit, it was not within his knowledge that defendant No. 1 had already executed a sale deed in favour of defendant No. 2 However, in spite of the injunction order defendant No. 2 got the sale deed registered on 24th May, 1972. Thereafter, the plaintiff amended the plaint and it was pleaded that as the sale deed was executed and registered in spite of the injunction order, it was illegal void and liable to be cancelled.
5. The suit was contested by defendants Nos. 2 and 3 who inter alia pleaded that there was no agreement to sell dt. 3rd January. 1971. in favour of the plaintiff. They further stated that there was a prior agreement of sale in favour of defendant No. 2 and that defendant No. 1 had sold the house to him in view of that agreement. Consequently the sale could not be challenged. He further pleaded that the plaintiff was not entitled to specific performance of the agreement dt. 3rd January. 1971. Some other pleas were also taken but they du not survive in the appeal.
6. The trial Court held that there was an agreement of sale by defendant No. 1 in favour of the plaintiff for a sum of Rs. 4,800/- and that defendant No. 2 had a prior agreement from defendant No. 1 in his favour and, therefore the sale deed dt. 4th May 1972 executed in his favour in pursuance of that agreement. was valid. It further held that the plaintiff. in view of the aforesaid circumstance was mot entitled to specific performance of the agreement dt. 3rd January, 1971. Consequently. the suit was dismissed. The plaintiff went up in appeal before the Additional District Judge who held that in view of the decree of the Subordinate Judge, IInd Class. dt. 28th February, 1972 dismissing the suit of defendant No. 2 for specific performance. the agreement dt. 27th December, 1970. was unenforceable. He, therefore, came to the conclusion that the sale by defendant No. 1 in favour of defendant No. 2 was invalid. Consequently, he accepted the appeal and granted a decree in favour of the plaintiff for specific performance of the agreement dt. 3rd January, 1971. by registration of the sale deed dt. 28th February, 1972. Defendants Nos. 2 and 3 having felt aggrieved from the judgment of the District Judge have come up in second appeal to this Court.
7. The first contention of Mr. Bindra is that in a suit for specific performance the plaintiff has to allege and prove that he had always been ready and willing to perform his part of the agreement which was neither pleaded nor proved. According to him, the plaintiff therefore, was not entitled to a decree for specific performance.
8. I have given due consideration to the argument of the learned counsel but regret my inability to accept the same. In the plaint, all the facts have been narrated, as stated above. Thereafter, it is pleaded that the plaintiff was ready and willing to perform the agreement and the amount of Rs. 1500/- was always available with him and he could make the payment to the defendant at any time. From the facts it is clear that immediately after the execution of the agreement of safe by defendant No. 1 in favour of the plaintiff, a sale deed was Act executed by the, plaintiff within two days. It was also Presented for registration but on the representation of defendant No. 3 it was not registered by the Sub-Registered. The balance amount of Rs. 1500/- would have been paid by the plaintiff at the time of registration. Later, an injunction order was obtained by defendant No. 2 in the suit filed by him for specific performance of the agreement dt. 27th December, 1970. Consequently during the pendency of the suit the sale deed could not be got registered. Immediately after the decision of the suit on 28th February, 1972. two sale deeds, Exs. P-1 and P. 2 were got executed from defendant No. 1 in respect of the houses but again an objection was raised by defendants Nos. 2 and 3 that they wanted to file an appeal and the sale deeds were again not registered by the Sub-Registrar. The fact that the plaintiff went before the Sub-Registrar for getting the document registered shows that he was ready to pay Rs. 1500/- at that time. From all the pleas, it is evident that the plaintiff was alleging that he was always ready and willing to perform his part of the agreement. No doubt. it has not specifically been stated so but it is well-settled that substance of the pleas should be kept in view and pleadings should not be construed very strictly in India. It is also settled that the pleadings should be read as a whole. Therefore, it cannot be held that a plea had not been taken by the plaintiff that he was ready and willing to perform his part of the agreement. Similarly, in his statement, he stated all the above said facts. The inference is that he was always ready and willing to Perform his part of the agreement. As stated above, the plaintiff has alleged in the plaint that he is still ready and willing in perform his part of the agreement and he has also made the same statement, Mr. Bindra made a reference to Gomathinayagam Pillai v. Palaniswami Nadar. AIR 1967 SC 868, wherein it was observed that the plaintiff in a suit for specific performance of an agreement must plead and prove that he was ready and willing to perform his part of the contract continuously between the date of the contract and the date of hearing of the suit. There is no dispute about the proposition. However, after taking into consideration all the above facts, I am of the view that the plaintiff has averred in the plaint that he was always and is ready and willing to perform his part of the agreement, I am further of the view that he has proved thc averments.
9. The second contention of Mr. Bindra is that the sale deed dt. 4th May, 1972, was executed by defendant No. 1 in favour of defendant No. 2 in pursuance of the agreement dt. 27th December, 1970 and therefore, the decree for specific performance on the basis of the agreement dt. 3rd January, 1991. which is subsequent to the agreement in favour of defendant No. 2, could not be passed in favour of the plaintiff.
10. I do not find any substance in this contention too, It is true that the agreement dt. 27th December, 1970. was a valid agreement between defendant No. 1 and defendant No. 2 but after the dismissal of the suit filed by defendant No. 2. he could not specifically enforce the agreement, Consequently, cannot be allowed to use the agreement as a defence to the plaintiff's suit. I the above view, I am fortified by the observations in Ramasami pettar v. Chinan Asari (1901) ILR 24 Mad 449.
In that case, 'A' mortgaged certain land with possession to 'S' for a sum of Rs. 100/-. The instrument of mortgage contained a covenant conferring upon the mortgagee 'S' a right of pre-emption in case 'A' wanted to sell the land to some other person on receiving a specific consideration mentioned in the agreement from 'S'. Later, 'A' sold the equity of redemption to 'V'. V's. interest was auctioned in execution of a decree and was purchased by the plaintiff. Subsequently. the plaintiff filed a suit for redemption. The mortgagee took a plea that the sale of equity of redemption by 'A' in favour of 'V' was invalid. It was held that the defendant could not be allowed to use the contract as an answer to the plaintiff's suit as no suit could be brought by him to enforce the contract.
11. The third contention of Mr. Bindra is that the sale deed executed by defendant No. 2 in favour of defendant No. 1 could not be declared void as it is not hit by the principles of lis pendens, nor the injunction order by the Court would effect the validity of the transaction. According to him, if the defendants disobeyed the injunction order action can be taken against them either under the Code of Civil. Procedure or under the Contempt of Courts Act but the sale deed cannot bc declared to be void.
12. Mr. Roop Chand, learned counsel for respondent No. 1. does not contest the argument. He, however submits that in view of the facts and circumstances of the case. the decree for specific performance be granted against defendants Nos. 1 and 2 and they be directed to execute the sale deed in his favour.
13. Mr. Bindra in reply has argued that no such prayer has been made in the plaint and, therefore. the plaintiff is not entitled to that relief. The plaintiff. in the present case has claimed the relief of specific performance and has further Prayed that the sale deeds dt. 28th February. 1972, be ordered to be registered in his favour. Thus, there is a prayer for specific performance of the agreement of sale in the plaint by the plaintiff. Even otherwise, under Order 7. Rule 7, Civil P. C., the Court can grant relief on the facts proved in the case. In the said view, I am fortified by the observations of a Division Bench of this Court in Shiv Dayal Kapoor v. Union of India. AIR 1963 Punjab 538. It was held there that a plaintiff ought to be given such relief as he is entitled to Ret on the facts established upon the evidence in the case even if the plaint does not contain a specific prayer for that relief. I therefore, hold that the plaintiff is entitled to the relief of specific performance of the agreement dt. 3rd January, 1971.
14. Lastly, it was sought to be contended by Mr. Bindra that in view of Section 77 of the Registration Act, the suit for specific performance was not maintainable. No such plea was taken by the defendant-appellants in the written statement and no argument was raised on their behalf either in the trial Court or before the District Judge in appeal. Consequently, I did not allow him to raise the plea.
15. Another question that arises is in which form the relief should be granted to the plaintiff. The matter has been examined by the Supreme Court in Durga prasad v. Deep Chand, AIR 1954 SC 75. The relevant observations are as follows (at p. 81):--
'In our opinion. the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor all he does is to pass on his title to the plaintiff. This was the course followed by the Calcutta High Court in Kafiladdin v. Samiraddin, AIR 1931 Cal 67 (C) and appears to be the English practice. See Fry on Specific performance, 6th Edn. page 90. para 207: also--Potter v. Sanders (1846) 67 ER 1057 (D).'
16. For the aforesaid reasons, I do not find merit in the appeal but modify the decree and order specific performance of the agreement dt. 3rd January, 1971. in favour of the plaintiff by defendant No, 1 on deposit in the executing Court of Rs, 1500/- within a period of two months and direct defendant No. 2 to join in executing the conveyance-deed. In case the defendants fail to execute the conveyance-deed, the plaintiff shall be entitled to get the same executed through Court. The appellants hall be liable to pay the costs of appeal. However, if the plaintiff fails to deposit the amount within the said period, his suit shall stand dismissed with costs throughout.
17. Appeal dismissed.