Doraisami Gounder vs Pachamuthu Gounder

Abdul Hadi, J.—Defendant is the appellant in this Second Appeal against the reversing judgment in A.S.No.125 of 1981 on the file of the

District Court at Erode, which has set aside the dismissal of O.S.No.325 of 1980 on the file of Sub Court, Gobichettipalaym, filed by the plaintiff

respondent for specific performance of Ex. A-1 sale agreement dated 30.7.1977 and granted the decree prayed for. The respondent-plaintiff is

only the elder brother of the appellant. His case in the plaint shortly is that in the family partition which took place earlier, the suit property was

allotted to the defendant and he agreed to sell the same to the plaintiff under the abovesaid Ex. A1 for Rs.20,000/-, within 18 months from the

above-said date and that out of the said sum, he had paid Rs.15,000/- as advance thereunder and only the balance of Rs.5000/-, the defendant

has to receive and execute the sale deed. The defendant in his written statement disputed the very factum of the execution of any sale agreement,

though admitted the abovesaid family partition, which according to him took place in 1968, and by which, the B Schedule property under the said

partition deed was said to have been allotted to the plaintiff and the defendant jointly. The further case in the written statement is that though the

plaintiff was in management of the said property, there arose misunderstanding and on the advice of mediators the plaintiff and the defendant signed

two plain stamp papers, but that the proposed compromise fell through and the plaintiff has manoeuvred to get blank stamp papers and has

created the abovesaid suit agreement. Thus, the only material issue before the courts below was regarding the truth of Ex. A-1 and the trial court

accepted the abovesaid defence of the defendant and dismissed the suit. The lower appellate Court also set out only one question as point for

determination thus:-

But, the lower appellate Court differed from the view of the trial Court in giving a factual finding thereon by holding that Ex. A-1 is true.

Accordingly it decreed the suit as prayed for and relegated the enquiry regarding mesne profits to separate proceedings under Order 20 Rule 12,

C.P.C. No doubt, it also gave 30 days time for paying the balance sale consideration of Rs.5,000/-, if it was not paid already and also gave

another 30 days'' time for execution of the sale deed and giving possession.

Now, in this Second Appeal, the only substantial question of law formulated by this Court at the time of admission is as follows:-

Whether the lower appellate Court has committed an error in over-looking the provisions of clause(c) of Section 16 of the Specific Relief Act and

decreeing the plaintiffs suit for specific performance?

Thus, the abovesaid question related to readiness and willingness of the plaintiff in performing his part of the suit sale agreement. But, admittedly,

no such question was at issue in both the Courts below. However, presumably in view of the statutory requirement under the abovesaid Section

16(c), the formulation of substantial question of law was as stated above. The appellant also in his Memorandum of Grounds, has in effect, only

mentioned the abovesaid question as substantial question of law arising, in the Second Appeal. But, apart from making submission on the

abovesaid aspect of readiness and willingness as per the abovesaid Section 16(c), Learned Counsel for the appellant also sought to make the

following two more submissions:-

(i) The plaintiff is seeking to get specific performance of an agreement different from Ex. A1 agreement and hence the relief cannot be given,

(ii) Contrary to Order 18, Rule 3-A, C.P.C., the plaintiff, without seeking permission of the Court contemplated under the said provision, has got

into the witness box as P.W. 2, that is, subsequent to another witness, viz., P.W. 1, the attestor to Ex. A1, and hence the entire evidence of P.W.

2 should be ignored.

The appellant has also filed C.M.P. No. 17984 of 1994 for raising additional grounds regarding the second of the abovesaid two submissions,

that is, regarding the contention based on Order 18, Rule 3-A, C.P.C. Regarding the first of the abovesaid two submissions, no doubt, there is

already a ground in the original Memorandum of Grounds itself, though it was not specifically put as a substantial question of law, arising in the

case.

Even at the outset, it must be stated that as per Section 100(5), C.P.C. the appeal shall be heard on the question formulated. However, the

provision therein no doubt states that nothing in the Sub-section shall be deemed to take away or abridge the power of the Court to hear, for

reasons to be recorded, the appeal on any other substantial question of law, not formulated by it if it is satisfied that the case involves such

question. So, it has also to be seen whether the present case would fall under the said proviso. In this context, I may also state that the abovesaid

C.M.P. No. 17984 of 1994 has to be allowed.

No doubt, Learned Counsel for the appellant also, in passing, touched upon the question relating to genuineness of Ex. A-1 sale agreement

which alone was dealt with by the Courts below, but he did not actually pressed into service any acceptable argument thereon further, I also hold

after going through the judgment of the lower appellate Court that the said Court after giving cogent and valid reasons, has come to the right

conclusion that the abovesaid Ex. A-1 agreement is true.

Now even before considering the abovesaid substantial question of law formulated relating to the readiness and willingness spoken to in the

abovesaid Section 16(c), I shall first deal with the abovesaid two other submissions made by Learned Counsel for the appellant I shall final deal

with the first of the two submission viz., whether the plaintiff is really seeking specified performance of a sale agreement different from suit Ex. A-1

sale agreement. The contention of Learned Counsel for the appellant in this regard is that the description of the property in Ex. A-1 different from

the description of the property in the plaint schedule and though in the body of the plaint, the description found in Ex. A-1 is said to be a mistake

P.W. 1, the plaintiff has not even chosen to speak about the said mistake and that while in Ex. A-1, the sale deed has to be executed within 18

months from the date of Ex. A-1 P.W. 2, the plaintiff deposes differently stating that the sale deed to be executed after the said 18 months. But, on

the other hand, Learned Counsel for the respondent in this regard points out there was no dispute at all regarding the identity of the property to be

sold. In fact, there is nothing in the written statement regarding this aspect, nor was there any cross-examination of P.Ws. regarding the same. That

is why, this aspect was not a question at issue in both the Courts below and that therefore, this aspect cannot be raised for the first time in the

second appeal, according to the said counsel.

I have considered the rival submissions in this regard. As per Ex. A-1, 3.22 acres of land have been agreed to be sold and the said extant

comprises (1) 48 1/2 cents in S.No. 180 out of the total common property of an extent of 5.5 acres and (2) 41 cents in S.No.212, out of the total

common property of an extent of 2.93 acres both of Poonachi Village, and (3) an extern of 50 cents in S.No.754, out of the total common

property of 9.90 acres and (4) 82 1/2 cents in S.No.757 out to the total common property of an extent of 3.30 acres, both of Kuriachi Village.

However, paragraph 5 of the plaint states thus:-

Though the defendant''s share is common half share along with the plaintiff in the extent within specified boundaries, the same being divided from

rest of the shares in the survey numbers by mistake it was described as common share in the entire survey number in the suit agreement. The same

is given correctly in the plaint.

(emphasis supplied)

In the plaint schedule, while describing the above referred to different extents of Ex. A-1 properties, specific boundaries of each of the abovesaid

properties found in Ex. A-1 are also given. Further, in the case of the abovesaid 48 1/2 cents, it is mentioned that it is half of the southern portion

of 97 cents out of the abovesaid 5.56 acres. Likewise in the case of the abovesaid 41 cents, they are described in two parts, one of 11 cents and

another of 30 cents. The said 11 cents is described as half of the common 22 cents, which is in the western side of the above referred to total

extent of 2.39 acres. Similar description is found with reference to the other 30 cents as half of the common 60 cents. Likewise, there are

descriptions with reference to the above referred to 50 cents and 82 1/2 cents also.

No doubt, the abovesaid mistake spoken to in paragraph 5 of the plaint is not specifically referred to by any of the P.Ws, including P.W. 2 the

plaintiff. But, it must be noted that to the abovesaid allegation in paragraph 5 of the plaint regarding the abovesaid mistake, no exception at all has

been taken in the written statement; nor any suggestion was made regarding the same to any of the P.Ws. While so, the contention of Learned

Counsel for the appellant that the non-examination of the scribe of Ex. A-1 will affect the case of the plaintiff, has no force. Further, the written

statement also admitted that the family partition that took place in 1968 (prior to Ex. A-1 sale agreement) and it also averred that B schedule

properties under the partition deed were allotted to the plaintiff and defendant jointly. The plaintiff''s case is only that what was allotted to the

defendant in the said partition was agreed to be sold by him to the plaintiff. Further when P.W. 2 the plaintiff deposed in chief- examination that

according to the abovesaid partition deed, he and the defendant got the property and they were enjoying the said properties separately, there was

no specific cross-examination on the abovesaid aspect. Further, even when the defendant deposed as D.W.I he also admitted in the chief-

examination itself thus:-

He further deposed in cross-examination thus:-

In the above context only learned first appellate Judge also finds thus:-

Only in the above context, the above aspect was also not put in issue at all. In such a situation, I do not think that there is any merit in the argument

of Learned Counsel for the appellant in this regard. Even regarding the other alleged variation between Ex. A-1 and the deposition of P.W. 2,

regarding the time for specific performance, I am only to hold that it is only a case of some imperfection in the way in which P.W. 2 gave evidence.

In the above context, the decisions reported in T. Kamakshi v. K. Jayaraman & 2 others (1994 1 L.W. 193) and Ramaswamy Gounder v.

Venkatachalam (1976) I M.1.J. 243) relied on by Learned Counsel for the appellant have no application to the present case.

Then, coming to the other submission of Learned Counsel for the appellant that the plaint does not contain the averment of readiness and

willingness on the part of the plaintiff to perform his part of the contract, resulting in violation of Section 16(c) of the Specific Relief Act, I may

initially set out the said Section 16(c), which runs as follows:-

Personal bars to relief. - Specific performance of a contract cannot be enforced in favour of a person -

(a). . .

(b). . .

(c) 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, other than terms the performance of which has been prevented or waived by the defendant.

The relevant averment in para 5 the plaint is as follows:-

The plaintiff requested the defendant on a number of occasions to receive the balance of the sale price of Rs.5000/- and execute a sale deed in his

favour at the expense of the plaintiff. The plaintiff in point of fact tendered the aforesaid balance of sale price to the defendant and expressed his

willingness to get the sale deed executed. The defendant on some pretext or other was postponing the execution of the sale deed. The defendant is

duty bound to perform his part of the contract and put the plaintiff in possession of the suit property. The plaintiff on finding that the defendant was

not sincere in discharging his obligation and suspecting his bona fides issued a lawyer notice finally on 25.10.1978 demanding specific performance

of the agreement dated 30.7.1977.

To all these allegations, there is only a bare denial in paragraph 6 of the written statement thus;-

The allegations contained in para 5 of the plaint are incorrect and false.

That is why, there is also no issue in the suit regarding the abovesaid aspect of readiness and willingness and the defendant also admittedly did not

take any steps to amend the issues. No doubt, there is no express averment that the plaintiff is ready and willing to perform his part of the contract.

But, the above allegations in the plaint, in substance, only denote the abovesaid readiness and willingness. Further, as P.W. 2, the plaintiff deposed

thus:-

But, there is no cross-examination on the aspect. That apart, even when D.W. 1, the defendant was in the box, he did not even whisper that the

plaintiff was not ready and willing to performed his part of the contract. A Bench of this Court in Rethinasabapathi Pillai V. V v. T.R. Sriramull

Chettiar (99 L.W. 239) has also held as follows

In our view the court need not insist that the very language of the Section should be repeated in the plaint. After all, the intendment behind the

statutory provision is to find out as to whether the plaintiff treated and treats the contract at all relevant points of time as subsisting on the basis of

which alone he can ask for specific performance of the contract. Pleadings need not be thrown out on the simple ground that the plaintiff has not

borrowed the language of the statutory provisions. If, on comprehensive reading of the plaint allegations, the stand of the plaintiff is clearly made

out that he has always been ready and willing to perform the essential terms of the contract, that would suffice the (sic) requirement of making

averments under S. 16(c) of the Act. It our opinion, the averments in the plaint at adequate and unambiguous to the effect required by S.16(c) of

the Act.

9A. Further, in R.C.Chandiok v. C.L. Sabharwal (1971 II S.CJ. 619) also I find the following observation:-

Readiness and willingness cannot be treated as a straight jacket formula. These have to be deter-mined from the entirety of facts and

circumstances relevant to the intention and conduct of the party concerned. In our judgement there was nothing to indicate that the appellants at

any stage were not ready and willing to perform their part of the CON tract.

I have also held in P.1akshmi Ammit v. S.1akshmi Animal (AIR 1991 Mad 13(sic) that where there is no specific denial of allegations in the

plaint about the abovesaid readings and willingness to perform the contract are where the defendants did not depose that the plaintiff was not ready

and willing to perform the contract, it has to be held that the plaintiff was ready and willing to perform the contract. Similar is the petition in the

present case also, as al ready indicated.

No doubt, Learned Counsel for the appellant sought to rely on the judgement of single Judge of Karnataka High Court in Palthur Honnur

Saheb v. Bopanna Annapurnamma (AIR 1986 Kar 109) holding that mere mentioning in the plaint of various circumstances showing readiness and

willingness is not sufficient. But, in the light of the above referred to decisions, particularly 99 L.W. 239 (supra) and another decision relied on by

Learned Counsel for the respondent, viz., Byomkesh v. Nani Gopal (AIR 1937 Cal 92 (DB, with due respect, I am unable to agree with AIR

1986 Kar 109 (supra) on the above aspect. In Byomkesh Banerjee Vs. Nani Gopal Banik, the following observation is significant:-

But where, as here, notwithstanding the absence of any such averment in the plaint, the trial Court has proceeded with the trial and the defendant

has fully participated therein without any objection and the trial has ended in a decree and no objection has been taken by the defendant either in

the memo of appeal or in the argument before the Appellate Court as to the absence of such averment in the plaint or want of readiness and

willingness on the part of the plaintiff and the Appellate Court also finds that there is satisfactory evidence as to the plaintiff''s readiness and

willingness, the suit, in our view, should not be thrown out solely on the ground that the plaint did not contain the averment as required under S.

16(c) , but the plaintiff should be given every reasonable opportunity to make good the defect by amendment of the plaint.

In the present case, as has been seen already, there are averments in the plaint showing the abovesaid readiness and willingness even though the

expression ""readiness and willingness"" has not been expressly used, and there was only a vague denial in the written statement and there was no

issue regarding this aspect. In such a situation, I do not think that the suit could be thrown out simply because the expression ""readiness and

willingness"" has not been specifically used in the plaint. I may also incidentally point out that Ex,A-2 suit notice dated 25.10.78 expressly speak

about such readiness and willingness. Viewed in this way, there is also no necessity for the other CM.P. viz., C.M.P. No. 18023 of 1994 for

amending the plaint to include therein expressly the abovesaid expression ""readiness and willingness"". Therefore, CMP 18023/94 has to be

dismissed as unnecessary.

Then coming to the other submission regarding Order 18, Rule 3-A, C.P.C., I may first extract the said provision, which is as follows :-

3A. Party to appear before other witnesses. Where a party himself wishes to appear as a witness, he shall so appear before any other witness on

his behalf has been examined, unless the Court, for reasons to be recorded, permits him to appear as his own witness at a later stage.

No doubt, in the present case, the plaintiff has not been examined first. Only after the attestor P.W. 1 was examined, he has been examined as

P.W. 2. No doubt there are conflicting decisions as to whether this provision is mandatory or directory. However, it appears that many different

single Judge - decisions of this Court have held that the said provision is a mandatory one and of which a more recent one is Jayakannan v.

Sampath alias Sampathkumar ( (1991 II M.1.J.77). No doubt, Learned Counsel for the respondent brought to my notice a Division Bench

judgment of Patna High Court in Pravesh Kumari and Others Vs. Rishi Prasad and Others, holding that the abovesaid provision is only directory,

though such a conclusion did not mean that the said provision need not be observed. However, the said decision did hold that the non-observance

of the said provision in all cases should not lead to the extreme penalty of expunging the relevant evidence, which had already been recorded. But,

even assuming that the provision is a mandatory one, the question is whether such provision can be waived by the party, for whose benefit, the said

provision has been enacted, viz., in the present case, the defendant. On this aspect of waiver of a mandatory provision the Supreme Court has held

in Krishan Lal v. State of J and K (1994) II M.1.J. 117 (S.C.)) and the other decisions that there can be such waiver, if the nature of interest

created by such a provision was the right of the party alone and not of the public as such. In the present case it is clear to me that the abovesaid

Order 18 Rule 34, C.P.C. was only for the benefit of the party concerned and the nature of the interest created by the said provision was not a

right of the public as such.

Then the question is whether such a waiver could be inferred from the facts of the present case. The abovesaid feature of the plaintiff being

examined only as P.W. 2, that is, after P.W. I has not been objected to at all by the defendant. In fact, the said objection is raised only now in this

Second Appeal for the first time. Therefore, there is no difficulty in holding that there is waiver. Further, it is not even suggested that any particular

prejudice had been caused to the defendant simply on the sole ground that the plaintiff was examined notes P.W. J but as P.W. 2. Further,

Learned Counsel for the respondent also submits that even assuming that there was a mistake on the part of the trial court in allowing the plaintiff to

be examined not as first witness, but as second witness, such a mistake by the Court should not prejudice the party, viz., the plaintiff. Taking all

these features into consideration, I see no merit in this submission also. The net result is, I am unable to find any merit in this second appeal despite

the elaborate arguments advanced, particularly by Learned Counsel for the appellant. Hence, the Second Appeal is dismissed with costs.

C.M.P.No. 17984 of 1994 is allowed. C.M.P.No. 18023 of 1994 is dismissed, as unnecessary.