JUDGMENT
B.L. Yadav, J.
1. This is a plaintiffs second appeal in the suit for return of the property, transferred to the defendant under a transaction which was apparently a conditional sale dated 4-7-1979, of a mortgage by conditional sale.
2. The plaintiff or appellant filed the suit with the averment that she executed a conditional sale on 4-7-1979 for a sum of Rs. 5,000/ – (five thousand) in favour of defendants. The stipulation was that on payment of consideration of Rs. 5,000/- the defendant would return back the property (in schedule-A) to her. She even though requested several times the defendant-respondent to take the amount of Rs. 5,000/ – and to execute the deed for re-conveyance but they did not accept the money nor executed the sale deed in her favour. The plaintiff gave a registered notice through the advocate which was served on the defendant indicating that the plaintiff is ready and willing to perform her part of contract but the defendants did not perform their part of contract hence the amount was being deposited in the Court and the suit was filed.
3. The suit was contested by the defendants-respondents admitting the execution of the deed but the plaintiff never offered the said amount to defendants who were ready and willing to re-convey the property and that no notice of any advocate was served on the defendants. The suit was liable to be dismissed.
4. The trial Court by the judgment and decree dated 19-12-1985 decreed the suit directing the defendant to take the sale consideration deposited in Court and to execute the deed of re-conveyance to the plaintiff within two months from the date of decree failing which the deed would be executed by the Court.
5. The defendant-respondent preferred an appeal before the lower appellate Court and the same has been allowed by the judgment and decree dated 10th of April, 1987 and the suit has been dismissed with costs. A cross-objection filed by the plaintiff in respect of mesne profits was also dismissed.
6. Learned counsel for the appellant Sri Devendra Kumar Sinha, contended that it was not strictly speaking a suit for Specific Performance of the Contract, rather it was a suit for re-conveyance of the property in which the provision of Section 16(c) of the Specific Relief Act, 1963 (the Act for short) was not attracted, The transaction was substantially a mortgage by conditional sale as contemplated under Section 58(c) of the Transfer of Property Act, 1882 and in that view of the matter in case the plaintiff failed to pay the amount within five years the sale in favour of the defendant-respondents was to become absolute whereas on the condition that all such payment being made within the time stipulated the transaction was to become void. Even assuming the suit was for Specific Performance of Contract, nevertheless the conditions were specifically complied with the averment in respect of readiness and willingness was also made. The plaintiff has also offered the sale consideration to the defendants of the mortgage money as contemplated under the deed and registered notice was also served on the defendants, the amount was deposited in Court but defendants respondents did not accept. The substantial questions of law are involved and suit may be decreed. Reliance was placed on Ganesh Trading Co. v. Moji Ram, AIR 1978 SC 484, Bijai Bahadur v. Shiv Kumar, AIR 1985 All 223, Surya Narain Upadhyaya v. Ram Roop Pandey, AIR 1994 SC 105.
7. Counsel for the respondents Mrs. Seema Ali Khan, on the other hand effectively refuted the submissions of the learned counsel appearing for the appellant and urged that in a suit for Specific Performance of Contract there must be averment about the readiness and willingness of the plaintiff for payment of the balance consideration but in the plaint there as no specific averment to that effect and it was not a suit for re-conveyance or a suit for
redemption of the mortgage by conditional sale consequently the suit for Specific Performance was filed as required by the law. The lower appellate Court has correctly allowed the First Appeal and dismissed the suit. No substantial question of law is involved. The learned counsel leaned heavily on Bishwanath Pd. Bora v. Umesh Mishra, 1985 BLJ 327, Diwali Lal v. Sardar Baldeb Singh, 1986 BLJ 473 : (AIR 1985 Pat 344). The suit has correctly been dismissed.
8. Having given a thoughtful consideration to the submissions of learned counsel for parties the questions for determination are as -to whether that suit filed by the appellant was a suit for Specific Performance of the Contract or a relief for re-conveyance of the property was claimed in view of the stipulation. In case it was a suit for Specific Performance of Contract, whether conditions were satisfied.
9. Perusal of Suit No. 42 of 1984 indicates, that paragraph 1 of the plaint is as follows:
I. “That plaintiff had given the suit premises detailed in Schedule-‘A’ of this plaint, to the defendant under conditional sale dated 4-7-1979 for a sum of Rs. 5,000/- and put the defendant in possession of the same.
II. That the plaintiff is a simple lady and hardly she can sign her name. According to the terms of contract of the aforesaid conditional sale deed dated 4-7-1979 the defendant had agreed to return the suit property within a period of five years the aforesaid conditional sale deed was not read over to this plaintiff and if there is anything contrary to the above, it is not binding as the terms of contract. The plaintiff was at liberty to return sum of Rs. 5,000/- and the defendant was to re-convey the property.
III. That the plaintiff made several requests (in time) to the defendant to take back Rs. 5,000/- from the plaintiff and to execute the required document in this respect and also gave registered pleader notice. This notice has been served upon the defendant on 17-12-1983 but to no effect and so is the necessity for this suit. Since the plaintiff has done and is ready to do her part of contract she is entitled
to mesne profits from the date of deposit till recovery of possession.
IV. That the plaintiff is submitting challan of Rs. 5,000,/- as the consideration money of the agreed document in favour of the defendant.”
The relief was claimed as follows: –
(a) “that a decree directing the defendant to execute the sale deed with respect to the suit property with possession be passed and in case the defendant does not execute the required sale deed, the same be executed by this learned court and possesion of the suit premises be given to the plaintiff through the process of the Court,
(b) that decree for mesne profit from the date of deposit till possession of the plaintiff be given against the defendant for their illegal possession,
(c) that decree of Rs. 50/- being the cost of the notice detailed in Schedule ‘B’ be given to . the plaintiff against the defendant,
(d) that cost of the suit be given to the plaintiff,
(e) that any other relief or reliefs which may be found fit and proper be given to the plaintiff.”
9A. In such matters it is the nature of transaction and averments in the plaint which are decisive. The perusal of the plaint indicates that the plaintiff has already made averments that she was ready and willing to perform her part of the contract and has sent registered notice through an advocate which was served on defendant on 17-12-1983 but to no effect and that she deposited the consideration money to the tune of Rs. 5,000/- as agreed upon in the document in the Court before filing the suit. The relief claimed was that a decree directing the defendant to execute the sale deed with respect to the suit property with possession be passed and in case the defendant does not execute the required sale deed the same be executed by the Court and possession of the suit property be given to the plaintiff. A decree for mesne profits be also passed in favour of the
plaintiff.
10. The aforesaid averments in the plaint and the relief claimed would indicate that it was a suit for Specific Performance of the Contract and in any case it was a suit for re-conveyance of the property mortgaged on the basis of the mortgage by conditional sale as contemplated under Section 58(c), Transfer of Property Act. On the payment of the amount as contemplated within time, sale in favour of the defendant was to become void but the lower appellate Court erred in dismissing the suit even though plaintiff has made necessary averments in the plaint in view of Section 16(c) of the Act. It is the averments in plaint, and nature of the relief claimed in a suit, which decides the forum and also the relevant law applicable thereto. The plaintiff has served registered notice on defendants through an advocate and offered to pay the consideration money before filing the suit, and even the consideration money was deposited in Court at the time of filing of the suit. This indicates her readiness and willingness to perform her part of contract.
11. To be precise, coming to the discussions made by the lower appellate Court taking the suit to be a suit for Specific Performance of the Contract. Suffice it to say that the plaintiff has made specific averments about her readiness and willingness under paragraph 3 of the plaint she requested the defendant to take back Rs. 5,000/- from her and to execute the document of reconveyance in respect of the property. She gave registered notice on 17-12-1983 which was served on the defendant but she did not hear anything from defendant. She also deposited the amount in Court while filing the suit as is evident from para IV of the plaint (supra). This, in my opinion, was substantially sufficient compliance of the provisions of Section 16(c) of the Act. The trial Court has very elaborately discussed this point with reference to the oral evidence relied upon by it after assigning sufficient reasons. The plaintiff examined P.W. 1 to prove Ext. 1, the copy of the pleader’s notice given to the defendant. P.W. 2 Jai Prakash was the son of plaintiff and P.W. 3 Bhagwan Pd. Sah one of the
neighbours of the plaintiff. P.Ws. 2 and 3 have specifically stated that plaintiff went rightly to the defendants to pay back the entire consideration to the defendant but the same was refused by the defendants. P.W. 4 also slated to that effect. D.W. 2 the defendant, however, denied it. The trial Court recorded a finding that the plaintiff was ready and willing to. perform her pan of contract, as envisaged under the deed but the lower appellate Court did not consider the material evidence of P.W. 2, P.W. 3 and P.W. 4, nor has assigned any reasons for not considering it, particularly only when lower appellate Court was exercising the jurisdiction of an appellate’ Court. It was a judgment of reversal.
12. In Madhu Sudan Das v. Smt. Naraini Bai, AIR 1983 SC 11, it was observed by the Apex Court that in an appeal against the trial Court decree where oral evidence was considered, the appellate Court to be slow unless some special feature about evidence of a witness escaped the attention of trial Court, In such matter trial Court has opportunity to watch demeanour of witness. The reasons given by the trial Court were not considered or refuted by the lower appellate Court.
13. The matter can be angulated from the other perspective also. It is well settled principle that case of Surya Narain Upadhyaya v. Ram Roop Pandey, AIR 1994 SC 106, was a case where the purchaser has pleaded his readiness and willingness to perform his part of contract and has deposited the balance amount of consideration in
Court, and that was taken to be sufficient compliance of Section 16(c) of the Act, the High Court’s view in that very case was
reversed when the plaintiff failed to pay sufficient Court Fee the High Court held that plaintiff was not ready and willing to perform his part of contract. In paragraph three their Lordships of the Apex Court has observed that Section 16 of the Specific Relief Act, 1963, mandates the plaintiff to aver in the plaint and establish as a fact by evidence that he is ready and willing to perform his part of contract. In that case the plaintiff has specifically stated in the plaint that he has been ready and willing to perform his part of the contract and it was stated that he was ready to
deposit the balance of Rs. 9,000/- and get the sale deed executed ad registered in his favour in terms of the contract. That was taken by the Apex Court to be sufficient compliance of Section 16(c) of the Act.
14. Ganesh Trading Co. v. Moji Ram, AIR 1978 SC 484 (supra) was a case where it was held that the procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in civil case are mean to give to each side intimation of the came of the other so that it may enable Courts to determine what is really at issue between parties.
15. Learned counsel for the appellant Stressed the points that even though specifically it was stated in paragraph three of the plaint that plaintiff was ready and willing to perform her part of contract even though the suit was not strictly speaking of the nature of Specific Performance of the Contract rather it was reconveyance of the property. The nature of the transaction was a mortgage by conditional sale and was covered by Section 58(c) of the Transfer of Property Act.
16. In the case of Bijai Bahadur v. Shiv Kumar, AIR 1985 All 223 (supra) it was held that compliance of the requirements of Section 16(c) was mandatory and in the absence of necessary averments in respect of the plaint that the plaintiff had been ready and willing to perform his part of contract the suit could not be decreed. The mere proof of readiness or and willingness is not sufficient compliance and there must be averment to that effect in the plaint. In the instant case the averments were made that plaintiff was ready and willing to perform her part of contract and she was ready to pay the consideration money and went several times to the defendant to offer that amount. The registered notice through Advocate was also served. In the instant case readiness and willingness was averred and proved.
17. As regard the cases relied upon by the learned counsel for the respondents, Bishwanath Prasad Bora v. Umesh Mishra, 1985 BLJ 327 (supra) was a case where the necessary pleadings by the plaintiff in a suit for Specific, Performance of the Contract were indicated
and it was held that plaintiff must aver that he was ready and willing to perform his part of contract and the plaintiff also must state that he had approached the defendant several time to perform the agreement pleaded by him. In the instant case all these conditions were complied with.
18. In Bishwanath Mahto v. Smt. Janki Devi, AIR 1978 Pat 190, Hon’ble L. M. Sharma, J. (as his Lordship then was) pointed out that a person asking for Specific Performance of contract for sale has to plead and prove that he is ready and willing to perform his part of contract continuously between the contract and the date of hearing of the suit. In case before me, all these requirements have been complied with since before filing of plaint the plaintiff has stated that she went several time to the defendant to pay sale consideration and in paragraph three of the plaint plaintiff has specifically stated that plaintiff has conveyed her readiness and willingness to perform her part of contract.
19. In Diwali Lal v. Sardar Baldev Singh, 1986 BLJ 473 : (AIR 1985 Pat 344) (supra), the Division Bench of this Court has emphasised the nature of the suit for Specific Performance of the Contract and it has been indicated that in view of statutory requirement of Section 16(c) of the Act the plaintiff has to make averment that he was ready and willing to perform his part of the contract. In that case the sufficient averments were not made and the plaintiff made an application for amendment and that application was allowed and the amendment was allowed and the defendant has accepted the cost ordered by the Court for allowing the amendment. Hence it was held that the defendant was estopped from challenging the order allowing the amendment. In the present case the requisite averments have been made about the readiness and willingness on the part of plaintiff to perform her part of contract. She has also served a registered notice on the defendant by an advocate which was proved by examining the statement of P. Ws. 2, 3 and 4. It can, therefore, be said that the plaintiff-appellant has made averments in the plaint the requisite conditions of Section 16(c) of the Act were complied with.
20. No doubt a second appeal is preferred under Section 100 of the Code which has been drastically amended after 1976 C.P.C. amendment. In view of Section 100 unless a substantial question of law is involved the second appeal cannot succeed. In the present case whether the plaintiff has complied with the condition of Section 16(c) of the Act and whether she has made sufficient averment in the plaint about her readiness and willingness to perform her part of contract and whether she has served a notice on the defendant through an advocate and was ready to pay the amount and went to the house of the defendant to make the payment before filing the suit were matters pertaining to the interpretation of Section 16(c) of the Act. It was substantial questions of law involved. There was another aspect that whether the suit was of the nature of Specific Performance of the Contract or it was a suit for re-conveyance of the property as contemplated by Section 58(c) of the Transfer of Property Act, Section 101, provides that second appeal would lie except on the grounds mentioned in Section 100. These two sections being conjointly read lead to only one inference that a second appeal would lie only if substantial question of law is involved. The question of law can be said to be involved only when such question of law emanates from the findings recorded and it has incorrectly been decided. In the instant case interpretation of Section 16(c) of the Act and also Section 58(c) of the Transfer of Property Act and the construction of the pleadings of the parties and the mode of appraisal of the oral evidence in the judgment of the reversal would indicate that substantial questions of law were involved.
21. In view of the premises aforesaid the present Second Appeal succeeds and the same is allowed. The decree of the lower appellate Court is set aside and that of the trial Court is restored and suit is decreed with costs throughout.