Doraisami Gounder vs Pachamuthu Gounder

Abdul Hadi, J.—Defendant is the appellant in this Second Appeal against the reversing judgment in AS. 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, Gobichettipalayam, 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 above said Ex. Al for Rs. 20,000/-, within 18 months from the abovesaid 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 maneuvered 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. Al 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:

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. A-l 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. A-l. 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 above said C.M.P.N. 17 984 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-l 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 first deal with the first of the two submissions, viz., whether the plaintiff is really seeking specific performance of a sale agreement different form suit Ex. A-l sale agreement. The contention of learned Counsel for the appellant in this regard is different from the description of the property in Ex. A-1 is 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-l is said to be a mistake P.W.I, 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-l, 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-l,3.22 acres of land have been agreed to be sold and the said extent comprises (1) 48-1/2 cents in S. No. 180, out of the total common property of an extent of 5,56 acres and (2) 41 cents in S.No.212, out of the total common property of an extent of 2.93 acres both of Poonache Village, and (3) an extent of 50 cents in S. NO, 754, out of the total common property of 9.90 acres and (4) 83-1/2 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 alongwith 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.

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-l 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-l sale agreement) and it also averred that B schedule properties under the partition deed were allotted to the plaintiff and defendant jointly. The plaintiffs case is only that what was allotted to the defendant in the said partition was agreed to be sole 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. 1 he also admitted in the chief examination itself:-

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 L.L.W. 193, and Ramaswomy Gounder v. Venkatachalam, (1976) 1 M.L.J. 2433, 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 violating of Section" 6(c) of the Specific Relief Act, 1 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 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.

But, there is no cross examination on this 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 perform his part of the contract. A Bench of this Court in Rethinasabapathi Pillai V.V. v. T.R. Sriramulu Chettiar 99 L.W.239. has also held as follow :-

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 a 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 requirement of making averments u/s 16(c) of the Act. In our opinion, the averments in the plaint are adequate and unambiguous to the effect required by Section 16(c) of the Act.

Further. in R.C. Chandlok v. C.L. Sabharmal 1971(11) A.C.J.619, also I find the following observation:-

Readiness and willingness cannot be treated as a straight jacket formula. These have to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned. In our judgment there was nothing to indicate that the appellants at any stage were not ready and willing to perform their part of the contract.

I have also held in P. Lakshmi Ammal Vs. S. Lakshmi Ammal and others, that where there is no specific denial of allegations in the plaint about the abovesaid readiness and willingness to perform the contract and 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 already indicated.

No doubt, learned Counsel for the appellant sought to rely on the judgment of single Judge of Karnataka High Court in Palthur Hunnur 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 Banerjee Vs. Nani Gopal Banik, 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 plaintiffs 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 u/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 plain to include therein expressly the above said 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 :-

3 A. 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. Ho 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) 11 MLJ 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 field in Krishan Lal v. State of J and K, (1994) 11 MLJ 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 3A 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. 1 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. 1 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.