M/s R.R. Contractor & Company vs Shri George Paul

This appeal be defendant No.2 is directed against the judgment and decree dated 29.7.1998 in Civil Suit No.40-A/1997. Plaintiff''s suit for specific performance of the agreement dated 15.12.1991 in relation to agricultural land admeasuring 0.282 Hectares survey No.388 of Village Bhuniyakhedi, Tehsil Mandsaur (hereinafter referred to "suit land") has been decreed with findings. -

(i) The agreement dated 15.12.1991 is found to have been executed by defendant No.1 in favour of the plaintiff for sale of the suit land on a consideration of Rs.85,000/-, out of which Rs.20,000/- was paid on the date of the agreement and remaining Rs.65,000/- was to be paid on or before 15.12.1993; the date on which the sale deed was to be executed. The defendant No.1 has received Rs.20,000/- as part consideration on the date of execution of sale deed.

(ii) Defendant No.1 betrayed the plaintiff and instead executed the sale deed in respect of suit property in favour of defendant No.2 on 18.5.1993 registered on 22.5.1993 i.e. prior to 15.12.1993.

(iii) Defendant No.2 had full knowledge about the fact of existence of the agreement (supra) before execution of sale deed on 18.5.1993.

(iv) Plaintiff has always been ready and willing with remaining amount of consideration to perform his part of the contract. Consequently, plaintiff is held entitled for execution of sale deed by defendants on payment of remaining consideration of Rs.65,000/- and for possession of the suit property.

Shri Ashok Garg, learned senior counsel, taking exception to the impugned judgment and decree has made following submissions :-

(i) The suit is barred by time under Article 54 of the Limitation Act as plaintiff despite having knowledge of the execution of the sale deed on 18.5.1993 did not file the suit within a period of three years as the suit was filed on 2.12.1996.

(ii) The trial Court committed grave illegality having not framed issue related to readiness and willingness of the plaintiff for granting discretionary relief of specific performance of the agreement to sell in ignorance of mandatory provisions contained under Section 16(c) and explanation appended thereto in as much as plaintiff is not only required to plead but also to prove his readiness and willingness in terms of the aforesaid provisions. Learned counsel relies upon the judgment of co-ordinate Bench dated 7.1.2010 in F.A.No.261/1998. The trial Court while addressing on the issue of factum of execution of the alleged agreement dated 15.12.1991 has recorded finding on assumption of facts. Findings as such are perverse in nature.

(iii) Defendants having not only denied the factum of execution of alleged agreement dated 15.12.1991 but have also pleaded that the aforesaid agreement is forged, prepared in 1991 on a stamp paper alleged purchased in 1984. Defendant has never put his thumb impression. Under the circumstances the trial Court ought to have obtained expert''s opinion under Section 45 of the Evidence Act to reach to the right conclusion in the process of fair trial.

(iv) The instant suit has been filed through power of attorney holder. The plaintiff has not entered into witness box, therefore, the requirement of readiness and willingness of the plaintiff under Section 16(c) of the Specific Relief Act is not fulfilled.

(v) In absence of relief for setting aside the sale deed dated 18.5.1993 registered on 22.5.1993 in favour of defendant No.2, no relief whatsoever could have been awarded against defendant No.2, more so since the sale deed was executed prior to filing of the suit principles of lis pendens under Section 52 of the Transfer of Property Act has no application.

With the aforesaid submissions learned counsel prays for setting aside of the exparte decree.

Per contra, Shri P.K.Saxena, learned senior counsel, has made following submissions in support of the impugned judgment and decree.

(i) The suit is well within time under Article 54 as the suit has been filed within three years from the date fixed for execution of the sale deed in the agreement as the agreement is dated 15.12.1991, the sale deed was to be executed on 15.12.1993 and suit was filed on 2.12.1996.

(ii) The plaintiff Manoramabai has executed a general power of attorney in favour of plaintiff No.2 Mohanlal for the purposes of purchase of the suit land and on the strength of aforesaid power of attorney the agreement to sell dated 15.12.1991 was entered with the defendant No.1, therefore, the plaintiff was competent to file suit for specific performance.

(iii) The plaintiff has specifically averred facts related to agreement to sell and regarding readiness and willingness in para 7 of the plaint the plaintiff has also led evidence in that behalf and proved the fact of readiness and willingness. As such the requirement of Section 16(c) of the Specific Relief Act is fully complied with.

(iv) Relying upon the decision of the Supreme Court in the case of Nedunuri Kameswaramma Vs. Sampati Subba Rao, reported in AIR 1963 SC 884, learned counsel contends that since parties to the suit went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in denial of those of the other side, it cannot be said that issue relating to readiness and willingness having not been framed has proved fatal to the case.

(vi) Even though challenge to sale deed dated 22.5.1993 executed in favour of defendant No.2 has not been questioned and no relief is sought in that behalf, Defendant No.2 having full knowledge of the aforesaid agreement to sell prior to the execution of the sale deed, a decree for specific performance of the agreement is liable to be executed against defendants No.1 and 2 both.

Heard.

Grant of decree of specific performance lies in the discretion of the Court subject of course fulfillment of the requirement of Section 16(c) of the Specific Relief Act, 1963 as the said Section mandates "readiness and willingness" on the part of the plaintiff and it is the condition precedent for obtaining relief for grant of specific performance. In a suit for specific performance, the plaintiff must allege and prove a continuance "readiness and willingness" to perform the contract on his part from the date of the contract till the institution of the suit.

It is well settled that it is not always necessary to grant a specific performance simply for the reason that it shall be lawful to do so. It is also well settled that the Court of appeal could not ordinarily interfere with the discretion exercised by the Court below (AIR 2003 SC 1391 referred to).

Before adverting to rival contentions advanced on the merits of the case it shall be proper to address on the contention advanced related to limitation.

Relevant Article reads as under :-

For specific Three years performance of a contract. The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.

The agreement to sell Ex.P/2 was executed on 15.12.1991 and had bore the stipulation of payment of Rs.20,000/- as advance out of total amount of consideration of Rs.85,000/- was agreed to be tendered on the date of execution and registration of the sale deed i.e. 15.12.1993.

As such limitation of three years shall reckon from the date fixed for the performance of the contract. The suit was filed on 2.12.1996 as such the suit is alleged to be well within period of limitation. The contention of the learned counsel for the appellant that period of three years shall be reckoned for the date of execution of the sale deed in favour of defendant No.2 i.e. 18.5.1993/22.5.1993 i.e. the date of registration is misplaced and is hereby rejected.

The contention raised to the effect that "readiness and willingness" of the plaintiff Manoramabai have not been pleaded and proved by herself, the requirement of Section 16(c) is not fulfilled, in the opinion of this Court, cannot be countenanced. In view of the fact that plaintiff Manoramabai herself has not entered agreement to sell with defendant No.1 instead had authorized defendant No.2 to purchase suit land from defendant No.1 by executing power of attorney dated 11.9.1978 in his favour. As plaintiff No.2 has entered agreement with defendant No.1 neither can he be said incompetent to enter the agreement to sell for purchase of suit land nor specific averment in the plaint as regards "readiness and willingness" on his part from the date of the agreement till the date of the institution of suit are held to be

fulfilling the requirement of Section 16(c) of the Specific Relief Act, therefore, no exception in that behalf can be taken to the judgment passed by the trial Court.

The contention related to non-framing of issue related to "readiness and willingness" as advanced by learned counsel for the appellant has substantial force. The requirement of the Section are two folds namely pleading as regards "readiness and willingness" and proving of the facts pleaded as such. Therefore, the general preposition of law as canvassed by learned counsel for the respondent/defendant No.2 that such parties went to trial fully knowing the rival case and led the evidence in support of their contentions and also in refutation of those of the other side, absence of a issue as regards "readiness and willingness" was not fatal to the case, in the opinion of this Court, cannot be countenanced looking to the mandatory requirement of Section 16(c), which in turn obliges the party seeking relief thereunder to prove the fact of "readiness and willingness". Order 14 Rule 1 CPC mandates framing of issues in the context of facts required to be pleaded and proved as contemplated under Section 16(c) of the Specific Relief Act. That has not been done and, therefore, the trial Court has committed illegality in that behalf. There is another dimension of the matter collaterally related to finding on issue of factum of execution of agreement to sell. The trial Court has recorded the finding on presumptions and assumptions and has ignored the specific pleading related to forgery, manipulation in preparation of the agreement to sell and denial of thumb impression by defendant No.1. The trial Court was as such obliged to record its satisfaction for fair trial by ordering for Expert''s opinion on the alleged agreement bearing in mind rival assertions in pleadings by both the parties on the question of execution of the agreement. That has not been done as such the impugned judgment is found to be perverse in nature.

The contention of the learned counsel for the appellant that in absence of relief against the sale deed dated 18.5.1993 registered on 22.5.1993 in favour of the defendant No.2 though plaintiff had the knowledge, no effective relief for specific performance of the contract can be granted, is found to be misconceived, as this Court cannot loose sight of the fact that plaintiff has specifically pleaded that inspite of having knowledge of the agreement entered between him and defendant No.1, the defendant No.2 has ventured into purchase of suit property through alleged sale deed.

Resultantly, the appeal is disposed of with the order of remand to the trial Court to frame an issue related to "readiness and willingness" of the plaintiff in the context of Section 16(c) of Specific Relief Act and with direction to call for Handwriting Expert''s opinion on the agreement to sale (Ex.P/ ) restricted to alleged thumb impression of defendant No.1.

Though, evidence is on record but parties are at liberty to lead further evidence, if so advised. The impugned order is set aside. The trial Court shall make endavour to decide the suit expeditiously with a time bound programme of trial.

The appeal is disposed of accordingly.