N.N Mithal, J.:— This is a second appeal by the defendants against the judgment and decree passed by the court below in a suit for specific performance of contract of sale.
2. The plaintiffs alleged that the defendants, first set, were residents of village Gauna Tappa Kenwali Pargana Haveli district Gorakhpur where they had their residential house and also cultivatory land. The defendants first set also owned some bhumidhari land in village Shyam Dewrwa including plot No. 370. The entire bhumidhari land of this village was transferred by them to the plaintiffs through two sale deeds except plot No. 370 because in the revenue records its khasra number had been wrongly mentioned as plot No. 317 which required to be corrected. According to the plaintiffs in March, 1968 the parties negotiated the sale of this plot also in fovour of the plaintiffs and it was agreed that the defendants first set will first get the number of the plots corrected in the revenue records within six months and thereafter execute a sale deed in favour of the plaintiffs. The earnest money was received by the defendants first set on 8th March, 1968 when an agreement of sale was also executed. It is also alleged that the father of defendants second set was fully aware about the transaction in question but inspite of this he got a sale deed of the plot in question executed in favour of his minor sons, who are defendants second set. The plaintiffs were approaching the defendants first set, for getting the sale deed executed but they avoided the same. Ultimately, on 10-12-68 a notice had to be served asking them to execute the sale deed. Apart from this, one Sita Ram was also deputed to personally request the defendants first set to execute the sale deed when it was revealed that they had already transferred the property to the defendants second set. The plaintiffs, therefore, prayed for specific performance of contract of sale on payment of the balance amount of consideration that is Rs. 500/- at the time of registration. The defendants first set filed written statement denying all the allegations made in the plaint. They even denied that any agreement had been executed or talk of sale had taken place between them and the plaintiffs. They also asserted their right to sell the disputed land to defts. second set. The defendants second set filed another written statement and reiterated what the defendants first set had stated in their written statement.
3. On the evidence led by the parties on record the trial court came to the conclusion that the defendants first set bad infact entered into an agreement on 8th March, 68 to sell the land to the plaintiffs and bad also received Rs. 1000/- by way of earnest money. The court, however, held that as the defendants second set were bona fide transferees for consideration without notice of the agreement between the plaintiffs and defendants first set and, as such, they were entitled to get the benefits of Sec. 41 of the Transfer of Property Act. In view of these findings the court instead of granting a decree for specific performance to the plaintiffs merely awarded a decree for refund of Rs. 1000/- paid as earnest money to the defts. first set. The claim against the defendants second set was rejected. The plaintiffs filed an appeal and the lower appellate court allowed the same holding that the defendants second set were not bonafide purchaser for value and, therefore, the appeal was allowed and the plaintiffs were held entitled to a decree for specific performance against all the defendants. Aggrieved, the defts. of both the sets have come up in appeal before this court.
4. A short point for consideration, that has been argued by Sri M.P Singh, learned counsel for the appellants, was that the plaint was not in accordance with the mandatory requirement of Sec. 16(c) of the Specific Relief Act, 1963 and, as such, the courts below have erred in granting a decree to the plffs. According to him in view of Or. 6 Rule 3 CPC the forms of pleadings given in Appendix ‘A’ must be followed and since there was no allegation in the plaint about readiness and willingness of the plffs. throughout it was a sufficient ground to non-suit the plaintiffs. He has, in this connection, relied upon a case reported in Manohar Lal v. Smt. Rajeshwari Devi, 1977 Allahabad Page 36 where a learned single Judge of this Court, relying upon a case reported in 1974 Allahabad page 294, held that “if the pleading was not in conformity with Forms 47 & 48 of the Code of Civil Procedure, the plaintiffs was not entitled to a decree for specific performance”.
5. Another case, on which reliance has been placed, is Mohd. Khan v. Ayub Khan, 1978 Allahabad Page 463 where a Division Bench of this court held that “in view of Rale 3 Or. 6 it was obligatory on the plaintiffs to frame their plaint in accordance with Form 47 of Appendix ‘A’ of the first schedule of the Code of Civil Procedure”. It was also held “Apart from the pleadings it was necessary for the plaintiffs to prove by evidence that he was always ready and willing to preform his part of the contract. Mere proof of willingness and readiness without proper averments in the plaint will not entitle the plaintiff to get a decree for specific performance.” However, in a case reported in 1979 Gauhati Page 65 it has been held that “the provisions contained in Or. 6 Rule 3 CPC are not mandatory in nature and it is not necessary that the plaint, in a suit for specific performance, must strictly comply to the same language as is employed in the model form given in Appendix ‘A’. The said forms are merely for the purposes of guidance and not necessarily to be followed to the latter”. In the case of Ramesh Chandra Chandiok v. Choni Lal Shabarwal, (1970) 3 SCC 140 : AIR 1971 SC 1238 the Supreme Court clearly laid down as under
“Readiness and willingness cannot be treated as a straight jacket formula and this have to be determined from the entirity of facts and circumstances relevant to the intention and conduct of the parties concerned”
6. Similarly in an unreported single Judge decision of this Court in First Appeal No. 95 of 1976-Bashiruddin v. Phunnan Khan decided by Hon. Sapru, J. on 29-1-1981 where also reliance was placed on 1971 Supreme Court page 1238 (Supra) and it was held that ‘on a consideration of the allegations contai-ned in the plaint it was obvious that necessary allegations of readiness and willingness have been made in the plaint.”
7. There is yet another decision in Second Appeal No. 437 of 1969 Dhoomi Mian v. Smt. Bano Begum on 10th of August, 1977 where it was held as under
“It is true that Sec. 16(c) of the Specific Relief Act provides that the 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 perfrom the essential terms of the contract which are to be performed by him’ and that it is stated in paragraph 3 of Form No. 47 of Appendix ‘A’ of the CPC that the plff. should state in the plaint that “the plff. has been and still is willing specifically to perform the agreement on his part of which the deft, has had notice” and Order VI Rule 3 CPC says that the forms in Appendix ‘A’ when applicable shall be used but we do not think that these provisions mean that the averment of a plff. regarding his readiness and willingness to perform his part of the contract must necessarily be expressed in these particular words or in any set phraseology. In any case, we do not think the omission to use these particular words or phraseology can be fatal to the suit. It is sufficient if the language used in the plaint shows that the plff. has throughout been ready and willing to perform his part of the contract.”
8. In view of these decisions it is quite obvious that strict compliance to the letter with the languge employed in these forms provided for in Appendix ‘A’ of schedule I of the CPC is not mandatory. The court in suitable cases should look into totality of circumstances and the allegations made in the plaint and from them come to a conclusion whether necessary allegations have been made by the plff. in that regard. All that is required is that from the language used in the plaint it must be clearly made out that the plff. had been always ready and willing to perform his part of contract which he seeks to get specifically enforced. No particular language or phraseology need be employed by him. Totality of the allegations made in the plaint must alone unequivocally show the readiness and willingness on the part of the plaintiff to perform his pari of contract.
9. Lastly Sri M.P Singh, counsel for the appellant, referred to a decision reported in Virendra Kumar v. Daya Nand, 1982 Allahabad Weekly Cases 176. That case, however, has no relevance to the facts of the present case. In that case an amendment application at the first appellate stage was moved to bring the plaint in conformity with the requirement of Form 47 of Appendix ‘A’ of the CPC. That application was disallowed. In revision, it was held by this court that ‘readiness and willingness on the part of the plaintiff was not a part of the cause of action for a suit for specific performance but is only a necessary averment. The said amendment, in suitable cases, could be allowed.
10. In the present case I have gone through the allegations made in the plaint minutely and I find that all the necessary ingredients for showing readiness and willingness on the part of the plff. to perform his part of the contract are already present. The plaintiffs have alleged that they had been taking steps to pursue the defendants to get the number of the plot corrected and also to execute the sale deed. On his avoidance to do so a notice was sent and thereafter a man was personally sent to impress upon them to execute the sale deed when they came to know, for the first time that the defts. first set had already transferred the property to the defts. second set. The defendants, on the other hand, clearly denied having even executed the agreement. No plea was raised on their behalf that the plff. was not ready or willing to perform his part of contract or that necessary allegations, as required under Sec. 16(C) of Specific Relief Act had not been made in the plaint. In this state of pleadings the defendant-appellants cannot be allowed to urge now that the plaint was not in accordance with law. As already observed earlier, the pleadings clearly made out a case under Sec. 16(c) of the Specific Relief Act and, as such, the plffs. cannot be denied a decree for specific performance for that reason.
11. As regards the question of appellants, second set being bona fide purchaser for value, suffice it to say that this is a finding of fact based on legal evidence on record which need hardly be disturbed in second appeal. No other point was pressed. In the result, I do not find any force in this appeal which is accordingly dismissed with costs.
12. Appeal dismissed.