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Anwarul Haq (Deceased By L. Rs.) v. Nizam Uddin (Deceased By L. Rs.) And Another
Structured Summary of the Provided Legal Opinion
Factual and Procedural Background
This appeal is directed against the judgment and decree of the Second Temporary Civil & Sessions Judge, Azamgarh dated 23 August 1969. Defendant No. 1 (the vendor and Bhumidhar) executed a written agreement to sell a specified plot of land to the plaintiff on 29 October 1963 for Rs. 4,000, of which Rs. 500 was paid that same day as earnest money. The sale was to be executed only after obtaining permission from the Settlement Officer (Consolidation); Defendant No. 1 applied for and obtained that permission. After permission was obtained, the plaintiff repeatedly asked Defendant No. 1 to execute the sale and collect the balance consideration, but the vendor allegedly evaded doing so. On 21 December 1963 Defendant No. 1 executed a sale of the same land in favour of Defendant No. 2. The plaintiff demanded rescission and brought a suit on 23 March 1964 seeking specific performance of the agreement.
In the defence, Defendant No. 2 denied the existence of any agreement to sell and pleaded that he was a bona fide purchaser for consideration of Rs. 4,800 without notice of any prior agreement. Defendant No. 1 did not contest the suit (the suit proceeded ex parte against him). The trial court found that the agreement to sell had been duly executed on 29 October 1963 and that Defendant No. 2 had notice of it; the trial court decreed specific performance on 31 March 1966. An appeal by Defendant No. 2 against that decree was dismissed on 23 August 1969, and the present appeal followed. During the pendency of the present appeal Defendant No. 2 died and his legal representatives were substituted as appellants.
Legal Issues Presented
- Whether an agreement to sell was duly executed between the plaintiff and Defendant No. 1 on 29 October 1963.
- Whether Defendant No. 2 had notice of the prior agreement between the plaintiff and Defendant No. 1 (i.e., whether Defendant No. 2 was a bona fide purchaser without notice).
- Whether the plaintiff complied with S. 16(c) of the Specific Relief Act, 1963 — specifically, whether the plaint averred and proved continuous readiness and willingness to perform the plaintiff's part of the contract (and whether failure to use the language of Form No. 47 of Appendix A is fatal).
Arguments of the Parties
Appellants' Arguments (summary as stated in the opinion)
- There was no agreement to sell executed by Defendant No. 1 in favour of the plaintiff on 29 October 1963.
- Defendant No. 2 did not have notice of any agreement between the plaintiff and Defendant No. 1; he was a bona fide purchaser for value without notice.
- The plaint did not contain the precise averment required by S. 16(c) of the Specific Relief Act, 1963 (and the language of Form No. 47 of Appendix A was not used), and therefore the suit for specific performance could not be granted.
Respondent / Plaintiff's Position (as presented in the opinion)
- The plaintiff pleaded and gave testimony that the agreement to sell was executed on 29 October 1963, that he paid Rs. 500 as earnest, and that he asked Defendant No. 1 to obtain Settlement Officer's permission and to execute the sale after permission was obtained.
- The plaintiff asserted that, after permission was obtained, he repeatedly requested execution of the sale and was ready and willing to pay the balance consideration, but Defendant No. 1 evaded performance and subsequently sold the land to Defendant No. 2.
- The plaintiff brought suit promptly (on 23 March 1964) and there was no specific denial in Defendant No. 2's written statement to certain key averments (paras 6 and 9 of the plaint); Defendant No. 1 filed no written statement. The plaintiff's deposition on readiness and insistence was not the subject of cross-examination on that aspect.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Specific Relief Act, 1877 (reference) | Historical absence of the express pleading requirement of readiness and willingness prior to the 1963 Act. | Cited to show background: the 1963 Act introduced a specific provision (S.16(c)) that was not expressly present in the 1877 Act. |
| Ardeshir H. Mama v. Flora Sarsoon (AIR 1928 PC 208) | Observed that, on principle, Indian and English requirements in this matter were the same. | Used to indicate that comparative principles had been previously discussed in jurisprudence. |
| Prem Rai v. D.L.F. Housing & Construction (AIR 1968 SC 1355) | Held that where the plaint alleges the agreement was vitiated by fraud/undue influence, absence of averment of readiness/willingness may mean no cause of action for specific performance. | Court treated this as a leading authority but distinguished it on facts (there the pleadings were inconsistent); used to outline circumstances when lack of pleading is fatal. |
| Ouseph Varghese v. Joseph Aley ((1969) 2 SCC 539) | Followed Prem Rai on the subject of pleading readiness and willingness. | Cited as part of the body of cases interpreting S.16(c); the court noted the decision but observed limited information about the precise pleading in that report. |
| Ramesh Chandra Chandiok v. Chuni Lal ((1970) 3 SCC 140 : AIR 1971 SC 1238) | Readiness and willingness cannot be treated as a strait-jacket formula; must be determined from the entirety of facts and circumstances. | Relied upon as the proper approach: court emphasised that readiness/willingness should be judged from totality of facts rather than strict adherence to prescribed words. |
| Dhian Singh v. Tarachand (AIR 1984 All 4) | Considered the question of pleading versus proof of readiness and willingness; emphasised totality approach and not a strict textual requirement. | Cited by the court to support the proposition that pleadings need not use the exact language of forms and that evidence and pleadings are to be read together. |
| Smt. Dipo v. Wassam Singh ((1983) 3 SCC 376 : AIR 1983 SC 846) | Principle that procedural forms are intended to facilitate justice and not to defeat substantive rights. | Used to support the view that strict literal compliance with Form 47 is not mandatory when substance of allegation is present. |
| Kalipada Day v. B.K. Sen Gupta ((1983) 1 SCC 14 : AIR 1983 SC 876) | Supports liberal approach to procedural forms so as to advance justice. | Cited to reinforce the court's approach favoring substance over rigid formality in pleadings. |
| Sangram Singh v. 1. Election Tribunal, Kotah (AIR 1955 SC 425) | Procedural rules and forms should be interpreted to further justice rather than defeat it. | Invoked to underline the court's insistence that procedural forms should not be a strait-jacket. |
| Virendra Kumar v. Daya Nand (1982 All WC 176) | Advocated that courts should consider totality of circumstances and allegations in the plaint when deciding whether necessary averments have been made. | The court expressed agreement with this view and used it to justify looking beyond literal form to the substance of pleadings. |
| Prag Datt v. Smt. Saraswati Devi (AIR 1982 All 37) | Supports the approach of considering the totality of circumstances for pleading requirements. | Cited as part of a group of authorities endorsing substance-over-form in pleading readiness/willingness. |
| Shakoor v. Palakdhari (1983 All WC 737) | Similar support for assessing pleadings in light of all circumstances rather than strict textual compliance. | Used to buttress the court's conclusion that implied averments can suffice. |
| Rajendra Prasad v. Rajdeva Rai (AIR 1974 All 294) | Cited among authorities on interpretation of S.16(c). | The opinion cites this case as part of the larger body of authorities but does not set out a specific excerpted principle from it. |
| Manohar Lal v. Smt. Rajeshwari Devi (AIR 1977 All 36) | Cited among decisions interpreting the provision relating to readiness and willingness. | Referenced as part of the jurisprudence on S.16(c); the opinion does not extract a specific passage from this case. |
| Mahmood Khan v. Ayub Khan (AIR 1978 All 463) | Cited among All-India High Court authorities on the subject. | Referred to as part of decisions interpreting the pleading/proof requirement; the opinion does not detail the precise rule from this decision. |
| Narendra Bahadur Singh v. Baijnath Singh (AIR 1981 All 410) | Cited among Division Bench decisions on interpretation of S.16(c). | Included in the list of authorities demonstrating extensive judicial consideration of the provision; specific application in this opinion not separately elaborated. |
| Mukhtiar Singh v. Dharampal Singh (1981 All LJ 119) | Cited among Division Bench authorities on the topic. | Listed as part of the body of case law; the opinion does not quote detailed principle from it. |
| Surai Singh v. Sohan Lal (AIR 1981 All 330) | Cited among authorities on readiness/willingness and pleading. | Mentioned as one of the cases where the provision has been interpreted; the opinion does not extract a specific dictum from it. |
Court's Reasoning and Analysis
The court proceeded by first noting that the trial court's factual findings — that an agreement to sell was executed on 29 October 1963 (Exhibit 2) and that Defendant No. 2 had notice of that agreement — were concurrent findings of fact accepted by both courts below. The appellants' factual contentions questioning those findings were rejected because there was no demonstrable perversity in the concurrent findings.
The principal legal challenge addressed by the court was the alleged non-compliance with S. 16(c) of the Specific Relief Act, 1963 — the contention being that the plaint did not contain the specific form language of Form No. 47 (Appendix A, First Schedule, Civil P.C.) averring that the plaintiff "has been and still is ready and willing specifically to perform the agreement on his part of which the defendant has had notice," and that therefore the suit could not be decreed.
The court analysed the contention as follows:
- The court emphasised that the substantive requirement of S. 16(c) is that the plaintiff must aver (and later prove) continuous readiness and willingness to perform his part of the contract; S. 16(c) does not prescribe any particular set of words to be used.
- Order VI Rule 3 of the Civil Procedure Code permits the use of forms "as nearly as may be," which allows departures in language so long as the substance of the allegation is present. The Forms are procedural aids and not intended to truncate determination on merits.
- The court reviewed authorities: it recognised Prem Rai v. D.L.F. as a leading authority where lack of averment was held fatal in a context where the plaintiff simultaneously alleged fraud and undue influence (thus making an averment of readiness/willingness incongruous). The court distinguished that situation from the present facts.
- The court relied on Ramesh Chandra Chandiok v. Chuni Lal (and later authorities) for the principle that "readiness and willingness cannot be treated as a strait-jacket formula" and must be judged from the totality of facts and circumstances.
- Applying these principles to the pleadings and evidence before it, the court found that the plaint expressly alleged: payment of earnest, that the plaintiff asked the vendor to obtain permission (which the vendor did), that on obtaining permission the plaintiff repeatedly requested execution of the sale and was evaded, that the vendor sold to Defendant No. 2, and that the plaintiff promptly sued for specific performance and offered to pay the balance consideration. Those averments, the court held, necessarily and implicitly conveyed the plaintiff's continuous readiness and willingness.
- The court also relied on the absence of a specific traversing plea in the written statement of Defendant No. 2 with respect to the key averments (paras 6 and 9 of the plaint) and on the absence of cross-examination on the point to support the conclusion that the plaintiff's plea of readiness and willingness was effectively uncontroverted.
- On this basis, and guided by the cited authorities favouring substance-over-form, the court concluded that literal recitation of Form 47 was not essential in this case and that the plaint disclosed a cause of action for specific performance.
Holding and Implications
Holding: The court dismissed the appeal.
Immediate consequences and directions:
- The appeal fails and is dismissed with costs awarded to Respondent No. 1.
- The decree for specific performance stands subject to a modification ordered by the court: the balance of the sale consideration shall be payable to the appellants (i.e., directions as to payment were adjusted in favour of the appellants while the appeal itself was dismissed).
Broader implications: The court reaffirmed the principle that S.16(c)'s requirement to aver and prove readiness and willingness is substantive but not tied to the use of a particular formulaic phraseology in pleadings; courts should determine readiness and willingness from the entirety of facts and circumstances and should avoid a rigid, literal application of the prescribed forms when the substance of the plea is otherwise apparent. The opinion does not indicate that it is announcing a novel legal precedent distinct from those it cites; rather it applied existing authorities and principles to the facts at hand.
Note: This summary is compiled strictly from the contents of the provided opinion and does not introduce information that was not present in that text.
1. This appeal is directed against the judgment and decree of the Second Temporary Civil & Sessions Judge. Azamgarh dated Aug, 23, 1969.
2. The defendant No. 1 was the, Bhumidhar of the land specified at the foot of the plaint. On Oct. 29, 1963 he entered into an agreement in writing to sell, this land to the plaintiff for consideration of Rs. 4000/- of which a sum of Rs. 500/- was paid by the plaintiff to the defendant No. 1, the same day as earnest. The sale was to be executed after obtaining permission from the Settlement officer (Consolidation) since the land in question was under consolidation proceedings. The plaintiff asked the defendant No. 1 to apply for the permission which the defendant No. I did. On the permiss on being obtained the plaintiff insisted upon the defendant No. 1 to execute the sale in his favour and obtain the balance of the sale consideration. This was evaded by the defendant No. 1. On Dec. 21, 1963, the defendant No. 1 executed sale of the land in favour of the defendant No. 2. The plaintiff required him to rescind the sale but to no effect. The suit was instituted with these allegations on March 23, 1964 seeking the relief of specific performance of the agreement to sell. In defence the defendant No. 2 averred that there was no agreement to sell arrived at between the plaintiff and the defendant No. 1. It was refuted that the defendant No. 2 had notice of any such agreement. The plea taken was that he was a bona fide purchaser for consideration of Rs. 4800/- without notice. The defendant No. 1 did not put in contest and the suit proceeded ex parte against him.
3. The trial court found against the defendant No. 2 on both the pleas raised by him. The agreement to sell was found to be duly executed on Oct. 29, 1963, it was also found that the defendant No. 2 had notice to that agreement. The suit was therefore, decreed for the relief of specific performance of agreement to sell on March 31, 1966. The appeal filed by the defendant No. 2 against the decree was dismissed on Aug. 23, 1969. The findings recorded by the trial court on both the points were affirmed. Aggrieved the defendant No. 2 preferred this appeal. Due to his death during the pendency of the appeal the legal representatives were brought on the record.
4. Sri S.N Verma, learned counsel for the appellants submitted that there was no agreement to sell executed by the defendant No. 1 in favour of the plaintiff on Oct. 29, 1963 and that the defendant No. 2 did not have notice of any such agreement. Both these contentions are concluded by the concurrent findings of fact. The agreement was found duly executed vide Ex. II. In regard to the notice it was held on the basis of the evidence placed on the record that the defendant No. 2 had been present personally when the agreement was executed. The testimony of the plaintiff to this effect was accepted by both the courts below. There is no perversity shown to exist in relation to these findings. In view thereof these contentions have to be rejected.
5. Sri S.N Verma learned counsel for the appellants has contended chiefly, however that there has been no compliance to the mandatory requirement of S. 16(c) Specific Relief Act, 1963 and, therefore, the suit could not be decreed for specific performance. In terms of S. 16(c) 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……” Form No. 47 of Appendix A of the First Schedule of the Civil P.C which reads as under was also referred to—
“The plaintiff has been and still is ready and willing specifically to perform the agreement on his part of which the defendant has had notice.”
6. The argument put forward is that the plaint does not contain this averment and in the absence thereof there could be no evidence adduced on the point nor have the courts below recorded a finding that the plaintiff respondent had been and continued to be ready and willing to perform his part of the contract.
7. Under the terms of the agreement to sell dated 29th Oct. 1963 (Ex. 2) the sale was to be executed after obtaining permission of the Settlement Officer (Consolidation). The permission was to be taken by the defendant No. 1 the vendor. This was a condition precedent to sale. A sum of Rs. 500/- was indisputedly paid as earnest on the same date. The plaintiff referred to these facts in paras 4 and 5 of the plaint. In para 6 he narrates that he asked the defendant. No. 1 to apply for the permission which the latter did and the permission was obtained too where after it is also averred, the plaintiff asked the defendant No. 1 to execute sale in his favour but the defendant No. 1 kept on avoiding the same. In para 7 he refers to sale dated 21-12-1963 executed by the defendant No. 1 in favour of the defendant No. 2 In para 9 it is reiterated that on coming to know of this sale, the plaintiff required the defendant No. 1 to rescind this sale and to execute sale to the plaintiff in terms of the agreement but the defendant No. 1 declined, and hence the suit brought soon after on March 23, 1964 for specific performance on payment of balance of sale consideration. In the written statement of the defendant No. 2 there is no specific denial of these averments of paras 6 and 9 of the plaint while the defendant No. 1 abstained from filing any written statement. In his deposition the plaintiff maintained that he had been persisting upon the defendant No. 1 to execute the sale in his favour but to no effect. There is no cross examination directed against this aspect.
8. In the old Specific Relief Act, 1877 there was no express provision that the averment, of readiness and willingness was necessary for a suit to enforce specific performance. In Ardeshir H. Mama v. Flora Sarsoon (AIR 1928 PC 208), it was observed that on principle the Indian and the English requirements in this matter were the same. The law Commission recommended insertion of this specific provision in the new Act. The provision has come in for interpretation in a large number of cases. The appellant's learned counsel referred to the decisions reported in Prem Rai v. D.L.F Housing and Construction (Pr.) Ltd. (AIR 1968 SC 1355), Ouseph Varghese v. Joseph Aley ((1969) 2 SCC 539) Rajendra Prasad v. Rajdeva Rai (AIR 1974 All 294): Manohar Lal v. Smt. Rajeshwari Devi (AIR 1977 All 36): Mahmood Khan v. Ayub Khan (AIR 1978 All 463) (Division Bench): Narendra Bahadur Singh v. Baijnath Singh (AIR 1981 All 410) (Division Bench): Mukhtiar Singh v. Dharampal Singh (1981 All LJ 119 (Division Bench) and Surai Singh v. Sohan Lal, AIR 1981 All 330). The submission made on the strength of these authorities is that in the absence of the averment referred to above the plaint does not disclose a cause of action and that it is of no consequence for this purpose that the defendants did not plead or join issue and no issue was, therefore, passed by the trial court.
9. In Prem Raj v. D.L.F Housing and Construction (Pr.) Ltd. (AIR 1968 SC 1355) (supra) which has constituted the leading authority on the subject, it was observed at page 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”.
(Emphasis mine).
10. The crux, therefore, is that the plaintiff was said to have no cause of action because in face of the contention that the agreement was vitiated by fraud and undue influence it would have been incongruous to say that the plaintiff averred readiness and willingness to form his part of the contract. This decision was followed in Ouseph Varghese v. Joseph Allen ((1969) 2 SCC 539). From the report, however, we do not get a precise idea of the actual contents of the plaint in this context. The proper approach to the matter is laid by the Supreme Court in Ramesh Chandra Chandiok v. Chuni Lal ((1970) 3 SCC 140 : AIR 1971 SC 1238) at page 1242, it was observed:
“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.”
11. It was argued that in this case the plaint contained the requisite averment and hence it is distinguishable. I had occasion to consider similar contention advanced before me in Dhian Singh v. Tarachand (Second appeal No. 2538 of 1978) decided on 22-9-1983: (reported in AIR 1984 All 4 at p. 7) and I stated:
“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”
12. Rule 3 of Order VI Civil P.C itself specifies that the Forms in appendix A of the First Schedule when applicable, as nearly may be, shall be used for all pleadings. This evidently permits a departure from the language used provided the substance remains fulfilled. The substantive provision contained in S. 16(c) does not insist upon a particular set of words to be used: the averment must in substance indicate the continuous readiness and willingness on the part of the person suing. The Form prescribed under O. 6. R. 3 is procedural, it is a rule of pleading, this has for its object the advance of cause of justice and it is not intended to short circuit decision on merits. It is procedural, 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 ((1983) 1 SCC 14 : AIR 1983 SC 876): Sangram Singh v. 1. Election Tribunal, Kotah, Katak (AIR 1955 SC 425) I am inclined for these reasons to agree with respect with the view expressed in Virendra Kumar v. Daya Nand (1982 All WC 176): Prag Datt v. Smt. Saraswati Devi (AIR 1982 All 37). Shakoor v. Palakdhari (1983 All WC 737) that the court in suitable cases should look into the 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 plaintiff in that regard. No particular language or phraseology need be employed by the plaintiff. A literal compliance to the language appearing in Forms 47 and 48 of the Appendix A is not imperative nor is this the requirement of law.
13. The plaintiff in the instant case avers that he asked the defendant No. 1 to apply for permission of the Settlement Officer (Consolidation). The defendant No. 1 did that whereafter the plaintiff required him to execute sale in his favour but that was of no effect. Instead the defendant No. 1 made sale to the defendant No. 2. The plaintiff asked this sale to be rescinded but the defendant No. 1 did not accede. I fail to understand that all this does not necessarily imply the averment of continuous readiness and willingness on the plaintiffs part. There is nothing to suggest that he was imploring upon the defendant No. 1 to sell without being ready and willing on his side to pay the balance of consideration.
14. That averment is necessarily implicit in what he pleads. Coupled with this is the fact that the suit was brought forthwith without waiting to let the statutory limitation expire and, there is then the complete absence of a plea by the defendants traversing these allegations. Unless the court were to resort to a strait Jacket formula which the Supreme Court deplores, it seems difficult to accept that the plaint does not disclose the cause of action for the relief of specific performance.
15. For the foregoing discussion the appeal fails and is dismissed with costs to the respondent No. 1 except for this modification that the balance of the sale consideration shall be payable to the appellants.
16. Appeal dismissed.
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