ORDER
N.N. Mithal, J.
1. This first appeal by the defendant arises out of a suit for specific performance of an agreement entered into by the defendant for sale of his land to the plaintiff respondent.
2. Put in brief the plaintiff’s case is that by an agreement dated 20-5-74 the defendant had agreed to transfer his land situate in plaintiffs village for a consideration of Rs.91,000/- within one year. A sum of Rs.500/- was paid as advance and the balance was payable at registration. The plaintiff was always ready and willing to perform his part of the contract but the defendant committed its breach and failed to execute the sale deed in spite of written demand through notice.
3. The defendant on the other hand contested the claim and pleaded that the agreement sued upon is not the real agreement which has been suppressed and the suit has been filed on the basis of a fictitious document by forging his signatures. He, therefore, denied having executed this agreement. It was further pleaded that there was another contemporaneous agreement of sale by one Kapil Muni and Smt. Dhaneshra in favour of defendant’s son Nitya Nand, the responsibility for the performance of which had been taken by the plaintiff. According to the defendant, the agreement with defendant was contingent on successful performance of the other and since Kapil Muni and another backed out from their commitment the plaintiff also cannot legally enforce the agreement against the defendant. Besides this the capacity and readiness and willingness of the plaintiff was also disputed. The case of the defendant also was that in the actual agreement which he had executed there was a clear stipulation that this agreement was contingent on the other and the two were not independent of each other.
4. Some admitted facts may first be understood as these will help in considering the rival claims of the parties. The plaintiff is resident of village Madara in district Mirzapur where they and their father possess some agricultural land. In the same village the defendant also owns some agricultural land in the proximity of plaintiff’s land although they are residents of village Neebi Kalan, in district Varanasi, several miles away. The defendant also owns substantial land in his own village but quite near to his land there was some agricultural land jointly owned by one Kapil Muni and Smt. Dhaneshra which is situated in villages Bhatwara-kalan and Bhatwara khurd. These two were, it is alleged, intending to dispose of their land with a view to settle
down in village Paiatpura in Bihar after purchasing some land there.
5. It is in the above background that the defendant had agreed to sell his land to the plaintiff and a contemporaneous agreement of sale of their land was executed by Kapil Muni and Smt. Dhanesra in favour of defendant’s son Nitya Nand. The fact that these two agreements had taken place is not in dispute. What is in dispute is (i) whether the agreement sued upon (Paper No. 8/A on the record) was the real agreement which the defendant had executed, and (ii) whether the agreement between the parties to this suit was entirely or in some way contingent on the maturity of the other agreement.
6. On the pleadings of the parties initially four Issues were framed. Issue No. 5 was added after hearing the arguments on 12-2-1979. The issues, as framed by the trial court, are as under:
1. Whether the defendant executed the agreement dated 20-5-1974, as alleged by the plaintiff?
2.Whether Rs.500/- was taken by the defendant as earnest money in the agreement to sell, as alleged?
3. Whether the defendant agreed to sell his land in suit for Rs. 91,000/- on 20-5-1974, as alleged?
4. To what relief, if any, is the plaintiff entitled?
5. Whether the plaintiffs have been ready and willing and are still ready and willing to perform their part under the contract and get the deed of sale executed in their favour in accordance with the terms and conditions of the suit, the deed of agreement for sale? If so, its effect?
7. Since the defendant had denied his signatures on the document sued upon the parties procured reports of their respective Handwriting experts. At the trial the plaintiff examined four witnesses in all including the expert and two marginal witnesses of the deed besides plaintiff Ramji. The defendant, on the other hand, examined ten witnesses including
the expert and eight other witnesses besides himself.
8. The trial court found all the issues in favour of the plaintiff and decreed the suit for specific performance against the defendant by its judgment dated 19th March 1979. Being aggrieved by the decision the defendant has filed the present appeal.
9. We have heard learned counsel for the parties at a great length and from the various submissions made before us the following points emerge for determination by us.
A. Whether the agreement 8/A was prepared on an ante-dated stamp paper subsequent to 20th May, 1974 after procuring it from the stamp vendor as alleged by the defendant?
B. Whether this agreement 8/A bears the signatures of the defendant and the same had been executed in the manner as alleged by the plaintiff?
C. Whether some other agreement had been executed by the defendant on 20-5-1974 of which paper No. 174/C is a copy, as alleged by the defendant?
D. Whether the agreement 77/A and the agreement between the parties to the suit were independent of each other or inter related and whether plaintiffs agreement was contingent on the agreement 77/ A?
E. Whether on true interpretation of the term of the agreement 8/A the defendant was under any obligation to execute the sale deed in favour of the plaintiff despite refusal by Kapil Muni and Sim. Dhanesra to execute the sale deed of their land as per agreement 77/A?
F. Whether the plaintiff was ready and willing at all relevant times to perform his part of agreement and if so, had the financial capacity for its performance.
G. Whether in the facts and circumstances of the case it was equitable to direct specific performance of the agreement and was the trial court justified in directing specific performance.
10. Points A, B and C formulated by us
are inter connected and we, therefore, propose to deal with them together. The defendant has denied his signatures on the document 8/A filed by the plaintiff purporting to be the real agreement which was executed by the parties. In order to prove his case the plaintiff has examined two marginal witnesses i.e. Rama Shankar PW-4 and Kamal Singh PW-3 besides himself. All the three witnesses have stated that the document 8/Ka had been executed in their presence after the same had been read over to the defendant. This evidence is further supported by the statement of P.W. 1 M. M. Sen Gupta who is a handwriting expert and has filed his repdrt giving detailed reasons for his opinion.
11. On the other hand the defendant had denied his signature on this document and, apart from the evidence already discussed above, the defendant has also examined DW-10, Irtiza Husain who is defendant’s handwriting expert. He has given contrary report to the effect that the signatures on document 8/A are not that of the defendant. Besides this, DW-3 Ram Agya Chaubey is the marginal witness of the other agreement77-A (Ext. A-33) who stated that Kamla Singh and Rama Shankar PWs were not present at the time when the two agreements were executed.
12. Sri S. N. Varma for the appellant has criticised this evidence on several grounds and submits that it is not worthy of credence. His first ground of attack is that a totally new case has been taken by the plaintiff in his oral evidence that the agreement in dispute was prepared by an advocate Sarju Pd. of Varanasi. He also pointed out that in the month of May the courts at Varanasi function from 8 a.m. to 2 p.m. instead of the regular court timing from 10 a.m. to 5 p.m. The plaintiff No. 1 as PW-2 admitted that on 20-5-74 the civil courts at Varanasi were observing morning hours. The P.W. 3 and PW-4, the two marginal witnesses have denied this. The submission of the learned counsel, therefore, was that the entire story that the draft of the agreement in question was prepared at the dictation of the aforesaid counsel Sarju Pd. at about 9 a.m. was, therefore, false and unsustainable. This is more so as the defendant
has clearly denied any involment of Sarju Pd. with this transaction. There may be some merit in this submission but, in our opinion, we would not be justified in discarding the plaintiffs entire evidence just for this reason. The contradiction merely affects the credibility of the plaintiffs case prior to the actual execution of the agreement and cannot necessarily lead to rejection of the remaining evidence. Therefore, we will have to consider the entire evidence of the parties to reach a final conclusion.
13. The other ground of attack is that undisputedly two agreements were executed on the same day and almost at the same time on 20-5-74. According to Sri Varma, when two inter connected or contemporaneous documents are executed one would normally expects that the same set of marginal witnesses will sign the two deeds. He pointed out that the six stamp papers on which the two agreements have been typed have all been purchased from the same stamp vendor and bear continuous serial number and even the typist is the same. From this, he wants the court to infer that the two deeds were prepared and executed as part of one transaction and since the marginal witnesses on the disputed agreement are different he urges, the agreement is a forged one. We cannot agree with this entirely. May be it would be more in line with normal behaviour that there would be common marginal witnesses in such circumstances. But we cannot rule out that each set of parties to a document may prefer to have witnesses of their own choice and liking. This, therefore, can neither be taken as an invariable rule nor sufficient to infer that the document is forged or fictitious merely from the circumstance that it has another set of marginal witnesses.
14. we may now turn to defendant’s evidence, main thrust of which was that the document sued upon has been manipulated after procuring ante dated stamp papers and forging his signatures on it after suppressing the real agreement which contains the crucial term that plaintiffs agreement would be contingent on the performance of the other agreement. To prove this DW-5 Mohd.
Shamim Khan has been examined. The
witness, is employed in the Revenue Record Room, Varanasi as an ‘arranger’. He brought the original stamp register pertaining to licensed stamp vendor Rajesh Kumar Gupta of Civil Courts, Varanasi. This register is for the period 2-4-1974 to 1-11-74 and contains entries regarding sale of stamps of various denominations, date-wise and serially giving the purchaser’s name. At the end of each day the total number of stamps of each denomination sold by the vendor on a particular day are noted and balance struck with the help of figures showing opening stock of that date. According to the witness just before serial No. 1048 in this register entries with serial Nos. 1042 to 1056 had been made in the name of one Mata Pd. but these have been scored out. Immediately thereafter again there are entries at serial Nos. 1048 to 1050 showing sale of three stamp papers of 75 Paise each to Kapil Muni Tewari resident of village Bhat-wara Kalan. These stamps have admittedly been used for the agreement paper No. 71/A executed between Kapil Muni and Nitya Nand (Ex. A-33). The second set of stamps of 75 Paise denomination are mentioned at serialNos. 1051 to 1054 as sold to Tribhuwan Tewari, resident of Nibi katan. The disputed agreement is also on stamps bearing serial Nos. 1051 to 1053 of the same date and sold by the same stamp vendor. This leaves very little doubt that all these stamps were purchased at the same time and their genuineness cannot be disputed as, according to DW5 there was no discrepancy in the account pertaining to sale of stamps. Apart from this, the colour of the seal of the stamp vendor and his signatures do not disclose any variation either in colour or the pen used.
15. The defendant, however, produced two more witnesses to show that this stamp vendor Rajesh Kumar is in the habit of selling ante dated stamps after changing a premium illegally. On this point the witness for the defendant is Munni Tewari, DW-9. This witness attempted to create evidence that the stamp vendor indulges in selling ante dated stamps. He purchased a stamp from him and a fake agreement had been typed out he got both obverse and reverse sides for the docu-
ment photographed by Satyavir DW. 4. He then again approached the same stamp vendor and persuaded him to sell another stamp of the same denomination, date and bearing the same serial number of his stamp register as that of the earlier stamp. The stamp vendor agreed to do so on a premium. The excess price being paid the stamp vendor gave him another stamp bearing the same date and register number under his signature and tore off the stamp sold to witness earlier. The witness was somehow able to retrieve a part of the torn stamp which bears the stamp vendor’s endorsement. The evidence of these witnesses and the original torn piece of stamp and the second stamp paper sold to the witness certainly bear testimony that the stamp vendor had committed this irregularity but from this we cannot assume that his was the case with the stamp of the agreement in question also. There ought to be something more in evidence to lead us to such an inference and this, we fear, is not forthcoming.
16. The only aspect that now remains to be considered about the document in question is about defendant’s signatures on it. For this, apart from the direct evidence of PW-2, PW-3 and PW-4 we have the opinion evidence of the handwirting expert. According to the expert, . PW-1, the signature on the document resembles that of the deft. On the contrary side we have the denial by defendant and the opinion evidence of DW-10 Irtiaz Hussain, the handwriting expert examined on his behalf, we also have the evidence of D.W. 3 Agya Ram, marginal witness of the other agreement, who stated that PW-3 and PW-4 were not present. when the two agreements were executed.
17. We have been taken through these statements and the other relevant evidence on record. Bearing in mind that the trial court had had the additional advantage of watching the demeanour of the witnesses, we are of opinion that there is nothing in the evidence due to which we should make any departure from the view taken by the trial court, despite there being presence of some circumstances which lead us to believe that the entire story as related by the witnesses may not be worth
relying. In the result, we hold that document sued upon is not a forged or fictituous one and it bears defendant’s signature, Although we are also of the opinion that the agreement in question had not been brought about in the manner asserted by the plaintiffs.
18. Before we proceed to consider points ‘D’ ‘E’ and ‘G’ formulated by us earlier ‘we would prefer to consider point ‘F’ first which deals with fmacial capcity of the plaintiffs and their readiness and willingness to perform the essential terms of the agreement. The averment made in the plaint in this regard is denied by the deft. In order to prove financial incapacity of the plaintiff the defendant has examined two witnesses D.W. 2 & D.W. 7. D.W. 2 is clerk in Land Development Bank, Chunar from whom plaintiffs father had taken a loan of Rs. 10,000/- for the purchase of a tractor. The witness has been produced to establish that the plaintiffs father had failed to clear the loan. In cross-examination, however, the witness has admitted that the loan was repayable in six yearly instalment and that the plaintiff’s father owned more than 12 1/2 acres of land. Possession of land clearly shows his capacity to repay it. It is common knowledge that the Bank will not advance loan unless the borrower had necessary capacity to repay. Besides the year when this loan was advanced has also not come into testimony of this witness. It cannot, therefore, be said that all the instalments had become due. Unless it is established that some instalments had become due and have remained unpaid it is not possible to brand anybody as defaulter or incapable of repaying the loan. Besides this, the loan having been taken by the father, the plaintiff cannot be termed as defaulter if the father has failed or delayed repayment of loan.
19. The other witness examined in this regard is DW-7 who is clerk in U.P. State Electricity Board. He appeared along with the register for the years 1976to 1978 to state that the plaintiffs father was in arrears of electricity charges during these years. When cross-examined, however, he admitted that up to December, 1978 only a few hundreds rupees were due and that too had since been cleared.
This evidence, therefore, does not help the defendant in any way.
20. The defedant then relied upon the fact that the plaint in this case was presented with a deficient court-fee and it was not made good for a long time. A perusal of the ordersheet shows that the plaint was presented on 28th May, 1975 with a deficient court-fee of Rs. 6232.50 and the court granted sometime to make good the same. Civil. Courts were thereafter closed on account of summer vacation. On the reopening of the court on 3-7-75 the plaintiff applied for one month’s time to pay the deficient court fee. Once again on 24th July, 1975 they prayed for two months further time but the court only granted 15 days time to pay up the court fee. On 8th August, 1975 deficiency was made good.
21. In the light of above facts, defendant’s submission was that the plaintiff had no money to pay even the court fee and on a false ground that the court-fee stamps were not available extension of time was sought. To supplement this argument one witness DW-6 Salik Ram, who was stamp clerk in the treasury of Mirzapur, was examined. He stated with the help of stock-register of the court-fee stamp maintained in the treasury, that there was sufficient stock of court-fee stamps during the relevant period.
22. To our dismay, however, we find that none of the applications seeking extension of time is on record, as the entire part *D* of the file has been weeded out. We cannot, therefore, find out as to on what ground time for payment of court-fee was sought by the plaintiff. The order sheet is also silent in this regard. However, from the fact that the deft, had examined the witness DW-6 it does appear that non availability of the court fee stamp may have been the reason for seeking extension of time to pay the court-fee. However, in the absence of the original application it will not be just or fair for us to say that the extension of time to pay the court fee was sought on this ground.
23. We, however, wish to take serious view of the matter as in many cases we have found that under Ch. XII Rules 1 & 2 of the
Rules of the Court are not being followed by the office of this Court. These rules require that notice of filing an appeal is to be sent immediately after the High Court directs ‘issue notice’. Even if the record is not to be requisitioned immediately, the sending of notices under Rules 1 and 2 is always necessary so that the entire file may be preserved in the concerned district and no part of it is weeded out. It is well known that particularly in first Appeals the matter comes up for hearing after more than ten to fifteen years and during this period parts ‘C’ and ‘D’ of the file become ripe for weeding out. In the absence of notice under Rules 1 and 2 these parts are likely to be weeded out as the district courts may not be aware of the filing of the appeal at all. If, in the absence of notice under Rules 1 and 2, any part of the file is weeded out, in some cases, it may lead to serious consequences. It is time, therefore, that sufficient attention is paid to the compliance of Rules 1 & 2 of Ch. XII and office should immediately take necessary steps in all pending case to send notice under Rules 1 and 2 where the same have not already been sent. This applies to revision and Reference also in addition to appeals. The registrar is also directed to ensure compliance of our order in this regard effectively.
24. We may now turn to consider points ‘D’, ‘E’ and ‘G’ which are inter-connected and can be conveniently considered together. On a persual of the two agreements dated 20th May, 1974 it is evident that the plaintiffs were interested in purchasing the defendant’s land situate in village Madra where the plaintiffs reside, while the defendant was interested in purchasing the land belonging to Kapil Muni and Smt. Dhaneshra situate in village Bhat-wara-kalan which was quite near to defendant’s field in the adjoining village Neebi-kalan. The agreement Ext. A-33 also shows that Kapil Muni and Smt. Dhanesra wanted to settle down in Bihar after purchasing some land there in village Palatpur. Thus by these two agreements all the parties thereto had something to gain in achieving the objective they had in mind. The question, however, is whether there is anything in these two agree-
ments which may make them either inter-related, dependant or contingent?
25. Learned counsel for the parties have referred to the two agreements in detail and we have been taken through them. The agreement Ex. A-33 executed by Kapil Muni and Dhaneshra in favour of Nityanand appears to be prior in time as would be clear from the disputed agreement which makes’ unmistaken mention to Ex. A-33 having been executed earlier, the same day. A reading of the two agreements will, therefore, confirm that the two agreements have been executed almost simultaneously, Ex. A-33 having been executed earlier followed by the disputed agreement.
26. Preamble Ex. A-33 recites that the owners were finding it difficult and suffering loss in cultivation and hence they desired to settle down in village Palatpura in Bihar after disposing of their land and to purchase the land in village Palatpura. It further recites that as a chance would have it the purchaser’s father owns considerable land in village Madura which he had agreed to transfer to the owners’ friend. This obviously refers to the plaintiff of the present suit. In the preamble of this agreement Ex. A-33 the language used is as below:
“Chaunki fareek awwal ke pas jaydad Bhatwara-kalan me vaka hai magar grhasthi men poora suvidha aur sahyog na hone ke karan ghata ho raha hai is waste fareek awwal ne yah munasib samjha ki apni jaydad jail ka bainama kisi ko tahreer kar de wa uske badle me jammen mauja Palatpura, Bihar me khareed lewe aur sanyogwash fareek doyam ke pita ke pas mauja Madra men kafee jameen hai jisko wah fareek doyam ke madhyam se fareek awwal ke mitra Ramji wa Shyamji sakinan Madra ko bechne ke liye taiyyar ho gaye hai”.
27. The preamble in the disputed agreement simultaneously recites that the owner of the land was facing it difficult to carry on cultivation of his land in village Madra because of distance from his natuve place and cultivation was not proving profitable. It further recites that due to the effort of the
purchaser he has been able to obtain agreement of sale in respect of the land in village Bhatwara Kalan from Kapil Muni and others and the said agreement has been executed the same day. The exact words of the preamble of this agreement are as follows:
“Chunki pratham pachh ka niwas asthan gram Madra Ke bahut doori par hai use gram Madra me kheti bari karne me atyadhikevam anawashyak kast uthana parta hai jiske karan is gram me kheti pratham pachha ke liye labhkari nahi hai tatha chunki pratham pachh ko apne gram ke pas gram Bhatwara Kalan me duteeya pachha ki koshish pairvi se Sri Kapil Muni putra Ramjas Tewari evam Smt. Dhaneshra Devi vidhwa Sri Aliyar Singh niwasi gram Bhatwara-kalan patti chaubisha pargana Kera Magaur Tahsil Chakiya zila Varanasi apni kuchh bhumi wa vikray karne ko taiyyar hai aur ukta byaktiyon ne apni sampatti vikray karne ke liye aaj hi pratham pachh se ek anubandh kiya hai.”
28. Term No. 7 of this agreement is crucial for determining the dispute between the parties and may be quoted below:
“Yah ki fareek doyam ki yah poori jimme-dari hai ki wah Kapil Muni Tewari wa Smt. Dhaneshra wa Nisha Devi bewa Sri Aliyar Singh se unki Jaydad rakba 13 beegha wa rnakan mauja Bhatwara kala ke bainama bamujib ek ekrarnama dinank 20 May, 1974 bahak Sri Nitya Nand Tripathi fareek awwal ke andar ek sal bainama tahreer kara dega lekin yadi wah kisi prakar sambhaw na ho saka to uska koi asar is satta baynama par nahi parega kyonki jaydad satta suda par duteeya pakchh pahle se kabij dakhil hai. Jumla majboon ikrarnama haja ko bakhud parh wa parhwakar sun wa samajh kar yah chand kalma wa tareek ikrarnama ke tahreer kar diya ki wakt jaroorat par kam aa we wa sanad rahe”.
29. Sri S. N. Varma, learned counsel for the appellant has laid considerable stress on these recitals to develop the plea that the two agreements were interdependent and contingent. The preamble of both these agreements clearly indicate that the plffs. were deeply
concerned with the two transactions. In both these agreements plaintiffs are referred to as friend of Kapil Muni. The agreement in suit is more specific and its preamble gives two reasons why the agreement has been entered into. The first ground mentioned is that for cultivating the land in village Madra the defendant finds it inconvenient and difficult and it was also not proving profitable. The second ground is that the defendant has been able to obtain an agreement for sale of land of village Bhatwara-kalan from Kapil Muni and Smt. Dhaneshra due to effort and pursuation of the plaintiffs. These two grounds, therefore, show that the reason which prompted the defendant to transfer his land in village Madra was that he had been successful in obtaining the agreement for the purchase of land in village Bhatwara-kalan which was nearer to his own fields and in obtaining these agreements the plaintiff had played a very important part as it was they who were instrumental in making all the efforts in pursuading Kapil Muni and Smt. Dhaneshra to agree to transfer that land to the plaintiff. To this extent the plaintiffs also do not challenge this position. While Sri S. N. Varma proceeded further and referred to clause 7 of the agreement, according to which the plaintiff had taken full responsibility for the successful compliance of the agreement by Kapil Muni and Dhaneshra and from this it was sought to be inferred that unless this responsibility was discharged by the plaintiff they themselves were not entitled to enforce the agreement against the deft, for purchasing his land in village Madra. Sri Sankatha Rai, counsel for the plaintiff respondents on the other hand submitted that even though the plaintiffs were under some obligation to purusuade Kapil Muni and Smt. Dhaneshra to execute the sale deed but they were not absolutely bound by this and in case the plaintiffs failed in their efforts, according to the later part of clause-7 itself, this failure was not to adversely affect their rights against the defendant.
30. In order to appreciate the rival submissions it will be necessary to have a look at the position of the parties to the two agreements and to consider as to what was each
likely to gain and lose by the perforernance and non performance of these agreements. It is not seriously denied that the plaintiffs were intimately connected with the two agreements as they were instrumental in affecting the agreement Ex. A-33. But the question arises why? Had they any interest? If so, what was that interest? Answers to these questions can be found only if we analyse the position of each party vis-a-vis each other. Although admittedly there are four sides to the two agreements but the transaction is rather triangular and not quadrangular because Tribhuwan Tewari and Nitya Nand being father and son could not be treated as separate entities since their interests are one and same. In fact the agreement Ex. A-33 had to be obtained in favour of Nitya Nand only because the total holding of the defendant would have crossed the permissible limit and in order to save the transaction the name of Nitya Nand was introduced.
31. The evidence on record leads us to the conclusion that the plaintiffs had coveted the defendants’ land in village Madra since it was very near to his other field. The defendant was admittedly residing in a far off village Neebi-kalan and was finding cultivation over his land in village Madra quite expensive and inconvenient. The evidence also leads us to believe that in this situation the plaintiffs had thought of approaching the defendant for purchasing the defendants land but realising that the defendant was unlikely to part with his land in village Madra unless there was some tempting offer made to him they must . have thought of Kapil Muni’s intention to dispose of his land in village Bhatwara-kalan as they wanted to shift from there and settle down in village Palatpura in Bihar. It was not difficult for them to pursuade Kapil Muni and Smt. Dhaneshra with whom the plaintiffs were admittedly quite thick and well acquainted from before. The situation was, therefore, ideal for the plaintiffs and accordingly they must have first pursuaded Kapil Muni and Dhaneshra to agree to transfer their land before they approached the defendant. Since the defendant had nothing to lose by transferring his land of village Madra to the plaintiff if he could get almost an equal area of
land here his own village, he must have agreed to the plaintiff’s proposal. It is in this manner, we think, that the two transactions were brought about. Plaintiff No. 1 himself admits having been told by the deft, that he was not interested in the price for his land in village Madra but only wanted the land in return for his land. This shows the real intention why the deft, agreed to transfer his land in village Madra and the parties were all along aware that this was the true reasons for entering into these agreements. Our view in this regard is further fortified by the fact that the two agreements were executed on the same day, almost simultaneously, in both the period for performance is fixed as one year and the sale consideration in both the agreements was almost equal, being Rs. 91,000/- and Rupees 93,000/- and the area of the land to be transferred was almost the same. It manifests that the intention behind both these agreements only was that the defendant wanted land near his village in return for his land in village Madra. This obviously means that he had no intention of transferring the land, for the sake of money but only to get land in return for his land nearer home. In this scheme of things it is difficult to visualise why the defendant would have agreed to transfer his land in village Madra unless there was some guarantee or assurance that he will get the land of Kapil Muni and Smt. Dhaneshra in village Bhatwara-kalan.
32. We may also notice here that in both these agreements a period of one year was agreed upon by the parties for finalising the sale deed. This was perhaps for the reasons that a major part of defendant’s land was sirdari and it was obligatory for him to first obtain bhumidhari rights to enable him to transfer the same. This was not necessary for the other agreement and a sale deed could have been obtained at once. It, however, appears that either defendant wanted to utilise the sale consideration which he was to receive on sale of his land in village Madra or the plaintiff wanted to keep some pressure on defendant so that he may not back out once sale deed is executed by Kapil Muni or it may be partly for both these reasons. It was perhaps for this reason that a period of one
year was stipulated for both the agreements and this also shows the strong link which existed between these two agreements.
33. Now from the evidence on record we are of the opinion that there was something more in these agreements than what meets the eye. The real intention of the parties was that the defendant should get agricultural land near to his village while the plaintiffs also should get land in the neighbourhood of their own land. The plaintiffs, therefore, cannot totally extricate themselves from their responsibility undertaken by them under cl. 7 of the suit agreement.
34. The question next arises is as to the extent of responsibility and its effect’ As seen earlier, according to Sri S. N. Varma, the plaintiffs responsibility was absolute and unless the obligations under the other agreement were fulfilled the defendant would be under no liability to execute the sale deed in favour of the plaintiff. The submission of Sri Sankatha Rai, on the other hand, was that the plaintiff had not undertaken any absolute responsibility and in case it was not feasible to have the other agreement performed there could be no adverse effect thereof on the agreement in dispute in terms of later part of cl. 7 of the agreement. Having considered the. respective submissions of the learned counsel in this behalf we are inclined to agree with Sri S. N. Varma on this point. It is true that no absolute responsibility has been cast on the plffs. to ensure that Kapil Muni and Smt. Dhaneshva should execute the sale deed in favour of defendant. However, the fact that they had taken “full responsibility” in this regard cannot be denied. As we understand these clauses in the agreement they make it obligatory for the plaintiff to at least take all necessary steps to see that Kapil Muni and Smt. Dhaneshra, whether by request or pursuation, agree to execute the sale deed in favour of Nitya Nand as agreed. Then only could they absolve themselves from the responsibility undertaken by them under cl. 7 of the agreement. This could be done only by leading convincing evidence about the actual efforts made by them in this behalf. However, what we find on record is quite to the contrary.
35. It was defendant who first served a notice on the plaintiffs within a few months of the agreement on 4th October, 1974. Contents of this notice (Paper No. 12 Kha) disclose that before sending of this notice he had approached Kapil Muni and Smt. Dhaneshra for executing the sale deed and they had refused to do so. This fact was also conveyed to the plaintiffs but they had shown their helplessness in the matter. By this notice the defendant also called upon the plaintiffs to write to them and confirm whether they intend to execute the sale deed regarding Bhatwara-kalan land. He also pointed out that the plaintiffs had undertaken the responsibility of getting the sale deed executed and in case this was not done he will not be obliged to execute the sale deed in their favour. The response of the plffs. to this is rather strange as they appear to have evinced no interest in performance of the other agreement. They only bluntly stated that in case Kapil Muni refused to execute the sale deed then the defendant was free to take the matter to courts to seek performance against them but that was in no way to affect his agreement. They also claimed to be in possession of the land. Surprisingly the plaintiffs did not offer to take any step in the matter by asking Kapil Muni to execute the sale or to pursuade him in any manner. They did not even mention as to what could be the reason for Kapil Muni for his stand in not executing the sale deed. The defendant immediately sent rejoinder to the plaintiffs asking them to write to Kapilmuni to execute the sale deed within a week. He also complained that instead of writing to Kapil Muni the plaintiffs had repeated the term in the agreement itself and was wrongly insisting that he was in possession over the land in question. The defendant also repudiated the agreement dated 20-5-74. This rejoinder notice was not replied for almost a month and thereafter they reiterated their earlier stand. There was a period of lull and we have no exchange of correspond ance between the parties until 5-5-75 when the plaintiffs sent a notice to the defendant calling upon him to execute the sale deed. The defendant gave a detailed reply to this. It appears that before this there was some
exchange of notice between Kapil Muni and Nitya Nand and in response to the notice by Nitya Nand on 24-3-75 Kapil Muni and Smt. Dhaneshra came out with a stand that they had not even entered into any agreement with Nitya Nand and they also charged the plffs. of having used their signatures on blank papers for fictitiously preparing the agreement of sale.
36. This stand of Kapil Muni is very intriguing because the plaintiffs at no time had given any such indication in the correspondence even though in the very first notice the defendant had pointed out that Kapil Muni was reluctant to execute the sale deed. In the sequence of events, it appears to us, that after the first exchange of notice the plaintiff and Kapil Muni planned out strategy and in pursuance of it their plea of denial was made. Be that as it may, the evidence on record shows that the plffs. had failed to discharge their responsibility in terms of cl. ‘7’ of the agreement according to which it was their responsibility to pursuade Kapil Muni and Dhaneshwa to execute the sale deed. Obviously the plaffs. have failed to perform this part of the terms of agreement and, therefore, they are not entitled to seek specific performance. It is for the plffs. to establish that at all times they were ready and willing to perform all obligations undertaken by them under the agreement which, in our opinion, they have failed to prove.
37. The conduct of the plaintiffs also leaves much to be desired. As PW-1 the plff. even denied having undertaken any responsibility in respect of other agreement. He even stated that he would not have entered into the agreement if he had known that there was any such term in the agreement. When clause ‘7’ of the agreement was read over to them he first stated that it had been incorporated without his consent. This makes the statement of the plffs. as most unreliable and Unacceptable. The relief of specific performance is an equitable relief and the plffs. are supposed to come to the courts with clean hands and their conduct fair and free from mala fides or trickery. If the plaintiffs induce the other party to enter into an agreement of sale by
making false promises and then back out, this conduct cannot be said to be fair and above board. In the instant case the plaintiffs had first taken full responsibility for the successful performance of the agreement between Kapil Muni and Nitya Nand but at the relevant time they quietly slipped away from the scene and wanted to take shelter behind the later part of clause ‘7’ of the agreement. Having first led the defendant to the garden path by making false promise and inducing the defendant to enter into agreement of sale in their favour on the promise that they would be fully responsible for the performance of another contemporaneous agreement, the plaintiffs cannot now turn around to say that their responsibility was not absolute. This conduct of the plaintiffs does not speak favourably as to their bona fide and shows that they did not make even a reluctant effort to pursuade Kapil Muni and Smt. Dhaneshra to execute the sale deed in favour of Nitya Najid as agreed.
38. In this connection our attention has also been drawn to S. 20(2)(c) of the Specific Relief Act, 1963. The section, leaving irrelevant part, reads as under:
Sec. 20(2) The following are cases in which Court may properly exercise discretion not to decree specific performance:–
(a) to (b) …..
(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable makes it inequitable to enforce specific performance.
39. Clause (c) did not find a place in the earlier Specific Relief Act and has been incorporated only in the new Act. The inclusion of this clause the area of court discretion has been sufficiently widened and it now includes even those cases where specific performance of contract was likely to be inequitable to the defendant. The corresponding section in the old Act was S. 22 which was very succinctly explained by Supreme Court speaking through Subba Rao J. as under:–
Under S. 22 of the Specific Relief Act, Relief of specific performance is discretionary but not arbitrary. This creation must be
exercised in accordance with sound and reasonable judicial principle. The cases providing for a guide to courts to exercise discretion one way or other or only illustrative, they are not intended to be exhaustive. As Art. 113 of the Limitation Act prescribes a period of three years from the date fixed thereunder for specific performance of a contract, it follows that mere delay without more extending up to the said period cannot possibly be a reason for a court to exercise its discretion against giving a relief of specific performance. Nor can the scope of the discretion, after excluding the cases mentioned in S. 22 of the Specific Relief Act, be confined to waiver, abondonment or estoppel. If one of these three circumstances is established, no question of discretion arises, for there will be no subsisting right or there will be a bar against its assertion. So, there must be some discretionary field unoccupied by the three cases, otherwise the substantive section becomes otiose. It is difficult to define that field. Diverse situations may arise which may include a Court not to exercise the discretion in favour of the plaintiff. It may better be left undefined except to state what the section says, namely, discretion of the Court is not arbitrary, but sound and reasonable guided by judicial principles and capable of correction by a court of appeal.
In England the relief of specific performance pertains to the domain of equity; in India, to that of statutory law. In England, there is no period of limitation for instituting a suit for the said relief and, therefore, mere delay the time led depending upon circumstances may itself be sufficient to refuse the relief; but, in India, mere delay cannot be a ground for refusing the said relief, for the statute prescribes the period of limitation. If the suit is in time delay is sanctioned by law, if it is beyond time the suit will be dismissed as barred by time in either case, no question of equity arises. But the English principles based upon mere delay can have no application in India where the statute prescribes the time for enforcing the claim for specific performance.
40. We have already seen the terms which the parties had agreed to and also the
circumstances in which they were placed at the relevant time. The plaintiffs had admittedly taken full responsibility upon themselves for the successful performance of the other agreement. The preamble in the two agreements and the oral evidence of the parties also shows their inherent intention that both the agreements should be performed simultaneously to their mutual benefit. If the plaintiffs were keen for getting the land in village Madra the defendant was equally keen to get the land in village Bhatwara-kalan from Kapil Muni. The sale consideration for the two were almost same as also the period of their performance. In these circumstances enforcement of one agreement only against the defendant is bound to work serious prejudice and will be inequitable. Parties had contemplated performance of both the agreements together and not of only one of them.
41. From the foregoing discussions we are, therefore, of the opinion that although the defendant had executed the agreement 8-A and the plaintiffs have proved their financial capacity for its performance we find that plffs. have failed to prove that they had discharged their responsibility under first part of clause ‘7’ of the agreement and to ensure due performance of a contemporaneous agreement between Kapilmuni and Smt. Dhaneshra on the one hand and the defendant and Nitya Nand on the other. Since the plaintiffs have failed to prove his readiness and willingness to perform all the essential terms of the agreement which were to be performed by them we are of the opinion that the plaintiffs were not entitled to the relief of specific performance. In any case it will be inequitable to grant it in the facts and circumstances of this case.
42. In view of the above conclusions, the appeal deserves to be allowed. We order accordingly. The judgment and decree of the trial court is set aside and the plaintiffs’ suit for specific performance is dismissed. However, in the circumstances of the case, we are of the opinion that the parties should be directed to bear their own costs throughout.
43. Appeal allowed.