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Idris Ali v. Abdul Samad Barbhuva .
Factual and Procedural Background
The plaintiff filed a suit for specific performance of a contract for reconveyance of suit land (1B, 4K, 4 Chataks) described in the schedule. The plaintiff's case was that on 23-2-1960 he sold the suit land to the defendant for Rs. 200 with a korar and that the defendant agreed to reconvey the land within three years on payment of the same consideration. The plaintiff failed to pay within three years and obtained an extension of two years by an endorsement dated 16-2-1963 on the reverse of the korar (Ext. I). The plaintiff further alleged a verbal extension by the defendant for one additional year in the presence of village elders. The plaintiff tendered the consideration on 2-3-1966 but the defendant refused to reconvey. The suit was filed on 15-2-1966.
On the pleadings, the trial court framed the following issues: (1) Is there any cause of action for the suit? (2) Is the suit barred by waiver, estoppel and acquiescence? (3) Whether the defendant agreed to resell the land within 16-2-1966? (4) To what relief, if any, is the plaintiff entitled?
At trial both parties gave evidence and produced documents including Ext. I (the Ekrarnama). The trial court disbelieved the alleged oral extension for a further year and dismissed the suit. On appeal, the Assistant District Judge held that, relying on Section 92 of the Evidence Act, oral evidence to modify the written agreement (Ext. I) was admissible and that time had been extended; he reversed the trial court and decreed the plaintiff's suit. The defendant (appellant before the High Court) appealed against that decree.
Legal Issues Presented
- Whether oral evidence to prove a subsequent modification of the terms of a contract that has been reduced to writing (Ext. I) is admissible in view of Section 91 of the Indian Evidence Act and the provisos to Section 92.
- Whether the Assistant District Judge erred in law by receiving oral evidence to show a modification of Ext. I and by interpreting Section 92 to allow such evidence.
- Whether the Assistant District Judge erred in making out a new case for the plaintiff beyond the pleadings.
- Whether the plaintiff, in a suit for specific performance, is entitled to judgment when the plaint and subsequent pleadings do not aver that the plaintiff was ready and willing to perform his part of the contract, as required by Section 16(c) (and Explanation (ii)) of the Specific Relief Act, 1963, and by Forms 47 and 48 of Appendix A Schedule I of the Code of Civil Procedure.
Arguments of the Parties
Appellant's Arguments (as summarized by counsel Mr. B.K. Das)
- The Assistant District Judge erred in law in receiving oral evidence to show modification of the contract embodied in Ext. I; his interpretation of Section 92 of the Evidence Act was erroneous.
- The Assistant District Judge erred in law by making out a new case for the plaintiff beyond the pleadings.
- The plaintiff never averred in the plaint or at any subsequent stage that he was ready and willing to perform his part of the contract; therefore the plaintiff was not entitled to judgment for specific performance.
Respondent's Arguments (as summarized in the opinion)
- Counsel for the respondent (Mr. M.A. Laskar) argued that proviso (4) to Section 92 allowed proof of a distinct subsequent oral agreement to rescind or modify the contract and that the Assistant District Judge was correct in admitting oral evidence of the alleged oral extension.
- Counsel for the respondent also argued that, although the plaint and deposition did not specifically state readiness and willingness to perform, a reasonable interpretation of the plaint that uses "common sense" should be applied to find that readiness and willingness was implied (relying on Narayan Nagorao v. Amrit Haribhau).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Dinkerrai Lalit Kumar v. Sukhdayal Rambilas, AIR 1947 Bom 293 | Parol evidence is not admissible to vary or explain the terms of a contract that has been reduced to writing; once terms are in writing the court must look to the writing alone. | The court relied on this authority to support the proposition that once a contract has been reduced to writing, parol evidence as to antecedent negotiations or subsequent conduct cannot be admitted to alter its terms; this reinforced the conclusion that oral evidence of the alleged extension was inadmissible. |
| Nokoor v. Asutosh, (1905) 9 CWN 214n | Cited (via Sarkar) for the principle that the word "or" in proviso (4) to Section 92 is not to be read as "and" and that registration of a document (as a fact) bars reliance on parol evidence to modify it. | The court referenced this authority (through the commentary in Sarkar) to support the view that a document which has been registered (even if registration was not legally required) cannot be orally modified; thus proviso (4) did not permit the reception of oral evidence in the present case. |
| Narayan Nagorao v. Amrit Haribhau, AIR 1957 Bom 241 | Interpreting pleading requirements and the approach to pleading readiness/willingness (cited by respondent counsel in support of a broader reading of the plaint). | The court noted the respondent's reliance on this decision but held that the unambiguous language of Section 16 of the Specific Relief Act left no scope for the "common sense" reinterpretation urged by counsel; the case did not displace the requirement for an express averment of readiness and willingness. |
| Prem Rai v. The D.L.F. Housing and Construction Pvt. Ltd., AIR 1968 SC 1355 | Absence of an averment that the plaintiff was ready to perform his part of the contract means the plaintiff has no cause of action for specific performance. | The court applied this Supreme Court authority to hold that, because the plaintiff did not aver readiness and willingness in the plaint, the plaintiff had no cause of action for specific performance and therefore could not obtain a decree. |
| Ouseph Varghese v. Joseph Aley, (1969) 2 SCC 539 | In suits for specific performance plaintiffs must conform to requirements of Forms 47 and 48; must plead application to defendant to perform and must plead readiness and willingness to perform. | The court applied this principle to emphasize that the plaintiff failed to plead readiness and willingness and the other formal requisites, rendering the suit for specific performance not maintainable. |
Court's Reasoning and Analysis
The court analyzed two principal lines of law arising from the facts: (1) admissibility of oral evidence to modify a written agreement; and (2) the plaintiff's compliance with the statutory requirement to aver readiness and willingness to perform in a suit for specific performance.
On admissibility of oral evidence, the court examined Section 91 of the Indian Evidence Act and concluded that when the terms of a contract have been reduced to writing no evidence is admissible to prove the terms other than the document itself. The court then considered proviso (4) to Section 92, which permits proof of a distinct subsequent oral agreement to rescind or modify a contract except where the contract is required by law to be in writing or has been registered under the law relating to registration of documents.
The court found Ext. I to be a duly registered written agreement. Relying on commentary in Sarkar's Law of Evidence and on earlier authority (including Nokoor v. Asutosh and Dinkerrai Lalit Kumar v. Sukhdayal Rambilas), the court held that proviso (4) does not permit oral evidence to modify a contract which has been registered; the fact of registration, even if registration was not strictly required by law, precludes admission of parol evidence for modification. Consequently, the Assistant District Judge erred in admitting oral testimony of the alleged subsequent one-year extension and in finding that the plaintiff offered the money within the orally extended time.
On the statutory requirement for suits for specific performance, the court examined Section 16(c) of the Specific Relief Act, 1963, and the requirement that the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. The court found no averment in the plaint or in the plaintiff's deposition that he was ready and willing to perform his part of the contract (either under Ext. I or under the alleged modified terms). The court rejected the respondent's submission that the plaint could be read sensibly to imply readiness and willingness, holding that the unambiguous statutory language and Supreme Court precedents leave no room for such an approach.
The court applied binding Supreme Court decisions (Prem Rai and Ouseph Varghese) that require express pleading of readiness and willingness and compliance with the prescribed forms. On these bases, the court concluded that the plaintiff was not entitled to a decree for specific performance.
Holding and Implications
Holding: The appeal is dismissed; the judgment and decree of the Assistant District Judge are set aside and the judgment and decree of the trial court are restored.
Implications:
- The direct effect is that the plaintiff's suit for specific performance is dismissed and the trial court's dismissal is reinstated.
- The court held that oral evidence cannot be admitted to modify a written and registered agreement (Ext. I) under Sections 91 and 92 of the Evidence Act; therefore the alleged oral extension was inadmissible.
- The court further held that absence of an averment that the plaintiff was ready and willing to perform the contract (as required by Section 16(c) of the Specific Relief Act and the relevant Forms of the CPC) precludes a decree for specific performance. The plaintiff's failure to plead readiness and willingness was fatal to his claim.
- No broader change in law was announced; the decision applies the existing statutory provisions and precedent to the facts and results in dismissal of the appeal. The opinion does not state any new precedent beyond its application of extant authorities.
This summary is based exclusively on the content of the opinion provided.
Pathak, J.:— This appeal is from the decree passed by the Assistant District Judge, Silchar.
2. The plaintiff filed the suit for specific performance of contract for reconveyance in respect of the suit land measuring 1B, 4K, 4 Chataks, as described in the schedule. The plaintiff's case is that on 23-2-60 he sold the suit land to the defendant at Rs. 200 with a korar from the defendant to re-convey the land within 3 years on payment of the same consideration. As the Plaintiff could not pay the consideration within the stipulated period, he got the time extended by two years more by an endorsement made by the defendant on the reverse of the korar on 16-2-63. Before expiry of the extended period also he could not make payment of the consideration and therefore he not the time further extended for another year by a verbal agreement in Presence of the village elders. On 2-3-66 he tendered the consideration but the Defendant refused to reconvey the land. On 15th February, 1966 the Plaintiff filed the suit.
3. The Defendant admits execution of the “Korarnama” and the first extension of the period for 2 years. He however denies verbal extension of time for a further period of one year. He also states that he has made further improvement on the land. On the pleadings of the parties the following issues were framed:—.
1. Is there any cause of action for the suit?.
2. Is the suit barred by waiver, estoppel and acquiescence?
3. Whether the defendant agreed to resell the land within 16-2-1966?.
4. To what relief if any is the plaintiff entitled?.
4. Both the parties adduced evidence and produced some documents including Ext. I which is the ‘Ekrarnama’.
5. The learned trial Court disbelieved the story of further extension of time till 16-2-66 and refused to accent the oral evidence in this regard. Accordingly he dismissed the suit. On appeal the learned Assistant District Judge held that under the provisions of Section 92 of the Evidence Act oral evidence to modify the written agreement was admissible and as such the learned trial Court erred in law in refusing to rely on the oral evidence regarding the extension of time for the second time. On consideration of the oral evidence the learned Assistant District Judge found that time was really extended and he therefore decreed the Plaintiff's suit reversing the judgment and decree of the learned trial Court. Hence this appeal.
6. Mr. B.K Das the learned counsel appearing for the appellant has raised three points in this case:—
(i) that the learned Assistant District Judge erred in law in receiving oral evidence to show modification of the contract under Ext. I and his interpretation of Section 92 of the Evidence Act was erroneous.
(ii) that the learned Assistant District Judge erred in law in making out a new case for the Plaintiff beyond the pleading,
(iii) that in the plaint or at any subsequent stage of the proceeding the Plaintiff never averred that he was ready and willing to perform his part of the contract and as such the Plaintiff was not entitled to judgment.
7. We have heard the learned counsel Mr. M.A Laskar, appearing on behalf of the Respondent at length.
8. The first point that arises for consideration is whether oral evidence to modify the contract put into writing in Ext. I is admissible in evidence. In other words whether oral evidence regarding modification of the terms of the contract as laid down in Ext. I is admissible in evidence.
9. In the instant case the Plaintiff has stated that there was an agreement for reconveyance of the land in question within 3 years from 23-2-66 on payment of the consideration. He admittedly failed to pay the consideration within 3 years but before the expiry of that period he got the stipulated period extended by two years more by an endorsement made by the defendant on the reverse of Ext. I on 16-2-1963. The Plaintiff admitted that he could not pay the amount within the extended period of two years. But he stated that in presence of village elders the period was further extended by the Defendant orally for one year. The Plaintiff has brought the suit for specific performance of the contract on the basis of Ext. I, the terms of which according to him were subseauently orally modified.
10. Relevant portions of Section 91 of the Indian Evidence Act are as follows:—
“91. When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document no evidence shall be given in proof of the terms of such contract grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.”.
11. Considering the provisions of Section 91 of the Indian Evidence Act, it is quite clear that oral evidence to show modification of the terms of the contract, which has been reduced to writing is not entertainable in a case.
12. The learned Assistant District Judge relied on Section 92 and held that oral evidence was admissible in the instant case to show modification or innovation of the contract laid down in Ext. I. In support of the finding of the learned Assistant District Judge Mr. Laskar referred to proviso 4 of Section 92 of the Indian Evidence Act which reads as follows:—
“92. When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest for the purpose of contradicting, varying, adding to or subtracting from its terms,
Proviso (1) ***
Proviso (4). — The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property may be proved except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.”.
13. On reading of the judgment of the learned Assistant District Judge and also after hearing the submissions of the learned counsel for the Respondent in this regard, it appears that the learned Assistant District Judge relied on proviso (4) to Section 92 for receiving oral evidence on the view that there was a distinct subsequent oral agreement to rescind or modify the contract under Ext-I.
14. Proviso (4) to Section 92, however lays down that oral evidence is not admissible to prove the existence of any definite subsequent oral agreement to rescind or modify any contract which has been registered according to the law in force for the time being as to the registration of documents.
15. Though an agreement for sale or reconveyance is not required by law to be registered, yet in the instant case the agreement was in writing and also had been registered in accordance with law as to the registration of documents. Ext. I is admittedly a duly registered document. In this connection we may quote the following observations from Sarkar's Law of Evidence 12th Edition, at Page 820:—
“(3) The rule applies to all registered instruments, whether or not registration is compulsory under the law. Expression “or has been registered” refers to the fact of registration and not to the requirement of law. So, when a writing embodying a contract grant, etc. has been registered (although registration is not compulsory), parole evidence of any subsequent agreement modifying or rescinding the registered instrument is not admissible. It must be modified, altered or waived by another registered instrument.
“The word “or” in this proviso is not to be read as “and”. So the contention that oral evidence is admissible when the document though registered as a matter of fact is not required by law to be registered was negatived (Nokoor v. Asutosh, (1905) 9 CWN 214n).”.
16. In this connection reference may also be made to Dinkerrai Lalit Kumar v. Sukhdayal Rambilas, AIR 1947 Bom 293, wherein Chagla, J. delivering the judgment of the Court observed as follows:—
“(3) The terms of the contract have been reduced to writing and we may point out with respect to the learned Judge below that he has fallen into error in admitting parole evidence with regard to negotiations antecedent to the contract and also with regard to the subsequent conduct of the parties. Once the parties reduce the terms of their contract into writing, the court can only look at the writing alone in order to construe what the terms of the contract were. It is hardly necessary to say that what the terms of the contract between the parties were cannot be ascertained by allowing parole evidence as to what transpired antecedent to the contract or what the parties did subsequent to the contract”.
17. In the instant case the payment was to be made within 3 years from 23-2-60 and then the period was extended by 2 years by the Defendant by endorsement on the reverse of the document itself. So in any view of the matter the payment ought to have been made or the Plaintiff should have been willing to fulfil his part of the contract on or before 23-2-60. Admittedly, the Plaintiff could not and did not offer the consideration within that period. He has come with a story that there was an oral agreement for extending the period by one more year i.e till 23-2-1966 but the oral evidence regarding the variation of the term of the contract in this regard is not admissible in evidence either under Section 91 or Section 92 of the Indian Evidence Act. That being the position the learned Assistant District Judge committed an error in law in receiving the oral evidence and holding that the Plaintiff offered the money within time, which was orally extended by the Defendant.
18. The next Important point is whether the Plaintiff in a suit for specific performance is entitled to judgment without complying with Section 16(c), Explanation (ii) of the Specific Relief Act, 1963 read with the prescribed Forms No. 47 and No. 48 of the Appendix A Schedule I of the Code of Civil Procedure.
19. Relevant provisions of Section 16 of the Specific Relief Act may be quoted:—
“16. 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.
(i) ***
(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.”.
20. In the instant case neither in the plaint nor in his deposition, the plaintiff stated that he was ready and willing to perform his part of the contract according to the terms of the Ext. I or even according to the alleged new terms in modification of the terms under Ext. I.
21. Mr. Laskar, the learned counsel appearing for the respondent submits that even though it has not been specifically stated either in the plaint or in the deposition of the Plaintiff that he was ready and willing to perform his part of his contract we should give reasonable interpretation of the language of the Plaint and use some amount of common sense in its interpretation. In this connection he referred to the decision in Narayan Nagorao v. Amrit Haribhau, AIR 1957 Bom 241.
22. But in the face of the unambiguous language of Section 16 of the Specific Relief Act, 1963, as quoted hereinabove and in view of the law laid down by the Supreme Court in this regard there is no scope for resorting to any common sense in the interpretation of the plaint as strenuously submitted by the learned counsel for the Respondent.
23. In Prem Rai v. The D.L.F Housing and Construction Pvt. Ltd., AIR 1968 SC 1355 at p. 1357, the Supreme Court has observed as follows:—
“In the present case there is absence of an averment on the part of the Plaintiff in the plaint that he was ready to perform his part of the contract. In the absence of such an averment it must be held that the plaintiff has no cause of action so far as the relief for specific performance is concerned.”
24. In Ouseph Varghese v. Joseph Aley, (1969) 2 SCC 539 at p. 543 the Supreme Court has observed as follows:—
“A suit for specific performance has to conform to the requirements Prescribed in Forms 47 and 48 of the 1st Schedule in the Code of Civil Procedure. In a suit for specific performance it is incumbent on the plaintiff not only to set out agreement on the basis of which he sues in all its details, he must go further and plead that he has applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so. He must further plead that he has been and is still ready and willing to specifically perform his part of the agreement. Neither in the plaint nor at any subsequent stage of the suit the plaintiff has taken those pleas. As observed by this Court in AIR 1968 SC 1355 that it is well settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his Part of the contract and in the absence of such an allegation the suit is not maintainable.”
25. As observed earlier admittedly there is no specific statement made in the plaint or in the deposition of the Plaintiff that he was ready and willing to perform his part of the contract. In the circumstances in view of the provisions of Section 16 of the Specific Relief Act, 1963 and the law laid down by the Supreme Court in this regard the Plaintiff is not entitled to any decree for specific performance.
26. In the result the judgment and decree of the learned Assistant District Judge are set aside and the judgment and decree of the learned trial Court are restored.
27. The appeal stands dismissed.
28. We however make no order as to costs.
29. Baharul Islam, J.:— I agree.
30. Appeal dismissed.
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