Bibi Anwarun Nisa vs Daulat Raison and Another

This appeal is preferred against the judgment dated 19-8-1993 in F.A. No. 503 of 1975 (R) [ Bibi Anwarunisa Vs. Daulat Rai and Mahesh Rai

] rendered by the learned Single Judge.

The Plaintiff in the suit, namely, Title Suit No. 9 of 1974 of the file of Subordinate Judge, Giridih, is the Appellant herein. The said suit was one

for specific performance of agreements of reconveyances of suit properties executed by the Respondents in favour of the Appellant herein agreeing

to reconvey the properties sold under six registered sale deeds.

The trial Court dismissed the suit finding that the Plaintiff did not tender the amount during the stipulated period and so no decree for specific

performance of contract could be passed.

On appeal the learned Single Judge of this Court vide judgment dated 22-9-87 dismissed the appeal. Aggrieved by that, the Appellant preferred

Letters Patent Appeal No. 74 of 1987. The Division Bench remanded the matter after setting aside the judgment of the learned Single Judge.

While remanding the matter, the Division Bench observed as follows:

The first appeal Court, which was the Court of fact, should have decided as to whether, in the facts and circumstances of the case, there was

readiness and willingness on the part of the Appellant on the basis there was sufficient averment.

In that view of the matter, the appeal is allowed. The judgment of the appeal Court is set aside. The matter is remanded back to the appeal Court

for consideration of the matter afresh on the point indicated above.

After remand, the judgment under appeal, was rendered by the learned Single Judge of this Court. As pointed out in the extracted portion of the

order of the Division Bench, the point of remand was whether there was readiness and willingness on the part of the Plaintiff on the basis that there

were sufficient averments.

Therefore, the question that was to be considered by the learned Single Judge was whether the Plaintiff was ready and willing to perform her

part of the contract as required u/s 16(c) of the Specific Relief Act. The learned Single Judge has thoroughly considered the matter including the

oral evidence adduced on behalf of the Plaintiff. While analysing the evidence, the learned Judge found that the oral evidence of P.Ws. 4 and 5 are

not acceptable for the reasons given by him. The learned Single Judge also observed that neither the Plaintiff nor her husband who was supposed

to have arranged for payment of money was examined. Learned Judge further observed that non-examination of the Plaintiff and/or her husband is

fatal to the case of the Plaintiff as the case of the Plaintiff depends upon proof regarding her readiness and willingness to perform her part of the

contract. As the learned Judge was of the view that the Plaintiff failed to prove her readiness and willingness, he affirmed the findings of the trial

Court and, accordingly, dismissed the appeal.

It is under these circumstances that the present Letters Patent Appeal has been preferred.

Learned Counsel appearing for the Appellant submitted that the learned Judge was not right in holding that the Plaintiff failed to prove readiness

and willingness on her part to perform her part of the contract. According to the learned Counsel, the suit itself was filed before the expiry of the

stipulated period before which the Plaintiff was expected to pay the amount as per the agreement. However, we find from the terms of the

agreement extracted in the judgment of the learned Single Judge that the Plaintiff was expected to pay each year Rs. 2000/- in the month of Magh.

Admittedly that was not done. Therefore, the mere saying that the suit was filed before the expiry of the stipulated period of five years will not help

the Plaintiff. Further in view of the limitation imposed in the remand order, the learned Single Judge has considered only the question whether the

Plaintiff was ready and willing to perform her part of the contract and found that the Plaintiff was not willing and ready to perform her part of the

contract.

As the trial Court and the learned Single Judge have concurrently found that the Plaintiff was not ready and willing to perform her part of the

contract, we do not see any reason to interfere with the same. This Letters Patent Appeal is, accordingly, dismissed.