Dhian Singh v. Tara Chand And Another

1. This is appeal is directed against the judgment and decree of the 6th Additional District Judge. Saharanpur dt. May 4, 1978.

2. The allegations of the plaintiff are that on Aug. 25, 1971 the defendant No. 1 entered into an agreement with him in writing for transfer by sale of the land specified at the foot of the plaint for a consideration of Rupees 12,000/- only. Of this a sum of Rupees 6,000/- was paid by the petitioner as earnest money to the defendant No. 1 on the date when the agreement was entered into and the balance was to, be paid upon the deed of sale being registered. It was stipulated also that the sale had to be executed within Aug. 24, 1977 (sic). The plaintiff had been ready and willing to perform his part of the contract. On Mar. 1, 1972 he also gave a notice under registered cover to the defendant No. 1 asking him to come over to the office of the Sub-Registrar, Deoband on Mar. 9, 1972 to execute the sale on receipt of the balance of the sale consideration. The defendant No. 1, however, did not turn up. The suit was instituted thereafter on Mar. 13, 1972 by the plaintiff claiming relief of specific performance of the said agreement. During the pendency of the suit before the trial court, the defendant No. 1 executed a deed of sale in favour of the defendant No. 2 in respect of this land on Dec. 13, 1973. The plaint was thereupon amended by the plaintiff by application dated Feb. 16, 1974. The relief claimed was modified. The defendant No. 2 was also required to join in the execution of the deed of sale in plaintiff's favour and in the alternative claim was made for refund of the sum of Rs. 6,000/-. In defence, it was pleaded that there had been no agreement entered into by the defendant No. 1 with the plaintiff on August 25, 1971. On January 10, 1971, it was asserted, the defendant No. 1 had agreed instead to sell this land to the defendant No. 2 for consideration of Rs. 20,000/- of which Rs. 7,000/- were received on that date as earnest. Upon receipt of the balance amount he executed the deed of sale in favour of the defendant No. 2 on Dec. 13, 1973. The defendant No. 2 moreover, claimed to be a bona fide purchaser for value without notice and it was also asserted that the plaintiff has not been ready and willing to perform his part of contract.

3. The suit was decreed by the learned Civil Judge on Aug. 11, 1977. It was found that the defendant No. 1 had executed the agreement dated 25th Aug. 1971 in plaintiff's favour and that there had been no agreement entered into on Jan. 10, 1971 as asserted by the defendants. Further, it was held that the plaintiff had advanced Rs. 6,000/- to the defendant No. 1 as earnest and that the defendant No. 2 could not claim to be a bona fide purchaser without notice. The trial court, however, erred inasmuch as it directed the defendant No. 1 alone to execute the sale in favour of the plaintiff. In the result there were three separate appeals filed against the judgment and decree by the plaintiff, the defendant No. 1 and the defendant No. 2 respectively. The appeals were decided under a common judgment on May 4, 1978 by the learned Additional District Judge. The finding of the trial court with respect to the due execution of the agreement dated Aug. 25, 1971 was upheld. It was affirmed that no agreement was made on 10th Jan., 1971. The suit, it was observed, did not fail upon the plea that the plaintiff had not been ready and willing to perform his part of agreement. The defendant No. 2 was found to have had notice of the agreement dated 25th Aug., 1971. The appeals filed by the defendants were consequently dismissed. In the plaintiffs appeal it was directed that the defendant No. 2 shall also join in executing the sale in favour of the plaintiff.

4. Aggrieved the defendant No. 2 preferred this second appeal.

5. The sole question raised for decision in this appeal is whether the plaint contains an averment to the effect that the plaintiff continued to be ready and willing to perform his part of the contract and, if not, its effect. The contention of Sri S.P Gupta learned counsel for the appellant is that there is no such averment in the plaint; in the absence thereof the evidence on the point cannot be looked into and the suit must as a result fail on account of non-compliance to S. 16(c) of the Specific Relief Act, 1963. For the plaintiff-respondent, on the other hand, it was submitted by the learned counsel Sri R.N Singh that there is substantial compliance made to this provision.

6. Upon reference to the plaint in this case it will be noticed that in paras 1 and 2 the plaintiff refers to the term of the agreement dated 25-8-1971 entered into by the defendant No. 1 and also to be payment of Rs. 6,000/- i.e half of the total consideration as earnest by himself. In para 3, he points out that he had learnt that the defendant No. 1 intended to transfer the property to some other person and he had therefore given notice under registered cover on Mar. 1, 1972 to the defendant No. 1 asking him to come to the office of the Sub-Registrar, Deoband on 9th Mar. 1972 to receive the balance of sale consideration and execute the sale deed and further that the plaintiff attended the Sub-Registrar's office from 10.00 A.M to 5.00 P.M on 9-3-1972 but the defendant No. 1 did not turn up. In the same para then the plaintiff proceeds on to say “Wadi hamesha jaydad mazkur kharid karnae ke liye taiyar tatha icchuk raha.” In the relief clause he claims specific performance of the contract on payment of the balance of Rs. 6,000/-. The suit was brought as said above, on Mar. 13, 1972.

7. Section 16(c) of the Specific Relief Act, 1963 enacts that specific performance of a contract cannot be enforced in favour of a person “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”. This has been inserted on the recommendation of the Law Commission following the dictum of the Privy Council in the celebrated case of Ardeshir Mama v. Floora Sessoon (AIR 1928 PC 208) which explained that the position under out law was the same in principle as deduced from S. 24(b) of the old Specific Relief Act as it was in England. The appellant's learned counsel in the instant case quite fairly does not dispute that:—

(i) the plaint does aver as to the plaintiff having been ready and willing to perform his part of contract prior to the institution of the suit;

(ii) the plaintiff has furnished proof that he was and continues to be ready and willing to perform his part under the contract.

8. The controversy is limited to the issue whether the plaint avers that the plaintiff continues to be ready and willing to do his part and if not its effect Reliance by the learned counsel in this connection was placed on Form 47/48 in Appendix ‘A’ to the Civil P.C That should be read alongside with R. 3 of O. 6, C.P.C which says that the Forms in Appendix ‘A’ when applicable, as nearly as may be, shall be used for all pleadings. This itself permits a departure from the language used provided the substance remains fulfilled. In the U.P General Clauses Act we have Section 10-C introduced by the U.P Act 54 of 1975 that states that where, by any U.P Act, a form is prescribed, slight variation therefrom not affecting the substance or calculated to mislead, shall not invalidate it. The substantive provision relevant is incorporated in S. 16(c) of the new Specific Relief Act; that does not insist upon a particular set of words being employed; the averment, according to S. 16(c), must in substance indicate the continuous readiness and willingness on the part of the person suing. The Form prescribed under O. 6, R. 3, C.P.C is procedural; it is a rule of pleading; this has for its object the advance of the cause of justice and is not intended to short-circuit decision on merits. It is procedure, something designed to facilitate justice and further its end, not a penal enactment; see Smt. Dipo v. Wassam Singh ((1983) 3 SCC 376 : AIR 1983 SC 846); Kalipada Day v. B.K Sen Gupta (dead) by L.Rs ((1983) 1 SCC 14 : AIR 1983 SC 876); Sangram Singh v. 1. Election Tribunal, Kotah (AIR 1955 SC 425).

9. In Premraj v. D.L.F Housing and Construction (Pr.) Ltd. (AIR 1968 SC 1355) relied for the appellant, the Supreme Court found that (at p. (1357):—

“In the present case no such averment is made in the plaint. On the other hand, the plaintiff has alleged that the agreement was a result of fraud and undue influence and was not binding upon him. For these reasons it must be held that so far as the relief of specific performance is concerned the plaintiff has no cause of action.”

10. This manifestly constitutes the distinguishing feature going to the root of the matter. A claim of continuous readiness and willingness does not run parallel to saying that the argument concerned is vitiated by fraud or undue influence. The decision in Premraj's case (AIR 1968 SC 1355) (supra) was followed in principle in Ouseph Verghese v. Joseph Aley (1969 2 SCC 539) and from the report we do not get the precise idea of the actual contents of the plaint therein in this context. The learned counsel referred also to a Division Bench decision of this Court reported in AIR 1981 All 410 (Narendra Bahadur Singh v. Baij Nath Singh). The plaint in that case. It was found “did not contain an averment to the effect that he is ready and willing to perform his part of the contract.” Even the exact date of the agreement for the time within which the sale had to be executed was mentioned (see paras 11 and 12). In Mahmood Khan v. Ayub Khan (1978 All WC 457) : (AIR 1978 All 463) likewise an examination of various paras of the plaint revealed that there was “absolutely” no averment about the plaintiffs readiness to perform his part of contract. These are thus decisions which rest upon the particular state of pleadings in individual cases.

11. The proper approach to matters of this kind is laid by the Supreme Court in Ramesh Chandra Chandlok v. Chuni Lal ((1970) 3 SCC 140 : AIR 1971 SC 1238 at p. 1242):

“Readiness and willingness cannot be treated as a strait-jacket formula. These have to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned.”

12. Learned counsel argued that the question therein was not as to averments in the pleading but with regard to the proof of readiness and willingness. To my mind the dictum of the Supreme Court quoted above clearly points the broad perspective in the light whereof the issue covering the averments as well as the proof has to be adjudged. It would be much too artificial and highly technical to draw a dichotomy in construing the pleading on the one hand and in appreciating the evidence on the other. The strait-jacket formula discarded for purposes of appreciation of evidence cannot be adopted as good to construe the pleadings which, as is well known, seldom conform strictly to the exemplars contained in various Forms incorporated in Appendix ‘A’ of the Civil P.C

13. In Sharda Prasad Singh v. Sheo Shanker Lal, First Appeal No. 136 of 1971 decided on 21-8-1980: (1982 All CJ 80) on an analysis of the plaint allegations the Court took the view that although the plaint did not contain the express words to indicate that the plaintiff was ready and willing to perform his part of contract but averments made in the plaint indicated that the requirements of law had been substantially complied with. In Prag Dutt v. Smt. Saraswati Devi (AIR 1982 All 37) a learned single Judge observed that (at p. 40):—

“If from the averments made in the plaints and the surrounding circumstances, it is established in substance that the plaintiff was ready and willing to perform his part of the contract and had remained ready and willing to perform the same throughout, it would not be proper to non-suit him as a verbal omission here or there. It has to be remembered that S. 16(c) or Form 47 of Appendix-A of Civil P.C does not provide for booby-trap of which an inscrupuious litigant should be allowed to take advantage.”

14. I am in respectful agreement with this line of reasoning.

15. In Kamdev Nath Choudhury…Defendant- v. Devendra Kumar Nath…Plaintiff-. (AIR 1979 Gau 65) it was observed (at pp. 66-67):—

“Therefore, in my opinion, the forms in appendices of the Civil P.C are merely guidelines assisting the litigant and the court. In my opinion, a substantial compliance with the rule is enough. Procedural law as are intended to facilitate and not to obstruct the course of substantive justice. Provisions regarding pleadings in civil actions ought not to be treated technically. Pleadings are meant to give to each side intimation of the case of the other so that the case may be not (sic), to enable the court to determine the real issue between the parties and to prevent deviations from the course which litigation on particular causes of action must take. In a suit for specific performance of contract if the plaint does not contain the specific words as set out in the forms and/or the specific words “readiness and willingness” on the part of the plaintiff but read as a whole it appears to the court that it complies with the provision of law in substance the plaint should not be thrown out.

16. Lord Campbell in Cort v. Ambergate etc. Railway Co. (1851) 117 ER 1229 : (1236) 17 QB 127 observed as follows:

“In common sense the meaning of such an averment of readiness and willingness must be that the non-completion of the contract was not the fault of the plaintiffs, and that they were disposed and able to complete it if it had not been renounced by the defendant.”

17. If that be the true test, it is enough compliance of S. 16 of “the Act” if it is asserted in a plaint that the plaintiff was not responsible for non-completion of the contract and he was disposed and able to complete it had it not been renounced by the defendant.

18. There is another aspect of the matter to which I cannot shut my eyes tearing in mind that the Privy Council and Supreme Court have said on a number of occasions that some latitude must be given in the case of Moffusil pleadings. In this regard let me refer to an observation of Vivian Bose, J. in Kedar Lal Seal v. Hari Lal Seal, AIR 1952 SC 47. Bose, J., speaking for the Supreme Court, observed (at p. 52):—

“I would be slow to throw out a claim on a mere technicality of pleading when the substance of the thing is there and no prejudice is caused to the other side, however, clumsily or inartistically the plaint may be worded.”

19. In the present case the plaintiff relies upon the agreement dt. 25-8-1971. He abides by the terms thereof. There is reference to his having advanced half of the consideration amount. The notice given to the defendant No. 1 on Mar. 1, 1972 to execute the sale is pleaded too besides saying that he attended the Sub-Registrar's office with the balance of sale consideration on Mar. 9, 1972. I have quoted above already the expression used in para 3 of the plaint. That cannot be divorced from the relief clause wherein he seeks specific performance on payment of Rs. 6,000/- being the balance of sale consideration. The suit itself was instituted immediately after the aforesaid notice. Cumulatively, these contents of the plaint do in my opinion speak adequately of the averment of readiness and willingness on the plaintiff's part. The appellant's contention in this respect consequently is devoid of merit.

20. Learned counsel for the appellant rightly did not, press the issue with regard to the defendant No. 2 being a bona fide purchaser for value without notice. The reason obviously is that both the courts below found that the defendant No. 2 was present when the defendant No. 1 gave reply dated April 1, 1972 to the notice dt. Mar. 1, 1972 received from the plaintiff asking the defendant No. 1 to execute the sale in his favour. This was testified also on oath by the defendant No. 1 which has been believed by the courts below. Further the evidence establishes that on Jan. 13, 1972 the plaintiff had given notice both to the defendants No. 1 and 2 intimating them directly of the agreement dt. 25th Aug. 1971 standing in his favour.

21. This also has been accepted by the lower courts. The alleged prior agreement set up by the defendant No. 2 was not found made out. The sale taken by the defendant No. 2 was during the pendency of the suit giving rise to this appeal and on that account it is affected also by the doctrine of lis pendens as contained in S. 52 of the Transfer of Property Act.

22. No other point has been raised.

23. The appeal consequently fails and is dismissed. In the circumstances costs on parties.

24. Appeal dismissed.