FIRST APPEAL No.60 OF 2007
Against the judgment and decree dated 26.09.2006 passed by
Sri Radheshyam Singh, Sub Judge IVth, Bhojpur Ara in Title
Suit No. 593 of 2002.
Ram Chandra Prasad ............ Defendant/Appellant
Versus
Smt. Mina Devi ........... Plaintiff/Respondent
********
For the appellant : Mr. V. Nath, Advocate
Mr. Ashok Kumar, Advocate
Mr. Satish Kumar, Advocate
Mr. G. Kumar, Advocate
For the respondent : Mr. Dhurub Narayan, Sr. Advocate
Mr. Jitendra Prasad Singh, Advocate
Mr. Abhishek, Advocate.
Mr. Prabhat Kumar Deepak, Advocate
with him.
Dated : 16th day of May, 2011
PRESENT
THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO
JUDGMENT
Mungeshwar 1. The defendant has filed this first appeal against the judgment
Sahoo, J.
and decree dated 26.9.2006 passed by Sri Radheyshyam Singh, the
learned 4th Subordinate Judge, Bhojpur, Ara in Title Suit No. 593 of 2002
whereby the learned court below decreed the alternative prayer of the
plaintiff-respondent in the suit for specific performance of contract.
2. The plaintiff-respondent filed the aforesaid Title Suit No. 593 of
2002 praying for specific performance of contract dated 22.12.1999 on
receiving balance consideration amount of Rs.76,000/- and in the
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alternative prayed for a decree for recovery of Rs.2,24,000/- with
interest @ Rs.2/- per month from the date of agreement dated
22.12.1999.
3. The plaintiff prayed the aforesaid relief on the facts inter alia
which may be briefly stated thus, that the parties were knowing each
other from before. The defendant-appellant had taken loan at the time of
marriage of his daughter and to repay the same he agreed to sell the suit
house for Rs.3,00,000/-. The plaintiff-respondent agreed to purchase the
same and paid Rs.2,24,000/- as earnest money and a Mahadanama was
executed in presence of the witnesses. The defendant signed on the
Mahadanama. According to the said agreement the balance consideration
amount of Rs.76,000/- was to be paid and then a sale deed was to be
executed and registered in favour of the plaintiff. The plaintiff arranged
the said amount in the month of October 2002 and went to pay the
defendant and asked him to execute the sale deed but the defendant
avoided. Thereafter the plaintiff and her husband tendered the said
balance amount of Rs.76,000/- repeatedly but the defendant avoided.
Then the plaintiff sent advocate notice. On 24.10.2022 the defendant
replied to the notice also whereupon the plaintiff came to know about the
ill-intention of the defendant. The agreement was to be performed within
22.12.2002.
4. The defendant-appellant appeared and filed contesting written
statements denying all the allegations made in the plaint. Mainly, the
defence of the appellant is that no such agreement was ever executed
between the parties. There was no agreement. The payment of earnest
money of Rs.2,24,000/- was also denied. It is stated that the agreement
in question is forged and fabricated. The further defence is that the
defendant has no other house except the suit house and his son has got
equal interest in the property and the defendant-appellant is a drunkard.
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5. On the basis of the above pleadings of the parties, the learned
court below framed various issues.
6. After trial the learned court below came to the conclusion that
the agreement i.e. Mahadanama is genuine and the defendant in his full
sense after receiving the earnest money of Rs.2,24,000/- executed the
said agreement in presence of the witnesses. The learned court below
also found that the defendant has not returned the said earnest money
nor executed the sale deed. However, the learned court below found that
the defendant-appellant has got the suit house as his only residential
house and in the suit house he is residing with his family, therefore,
granted the alternative relief instead of granting the relief for specific
performance of the contract.
7. The plaintiff is satisfied with this decree whereby alternative
relief has been granted. However, the defendant has field this first appeal
challenging that part of the decree whereby the alternative relief has
been granted.
8. The learned counsel Mr. V. Nath appearing on behalf of the
appellant raised two grounds assailing the aforesaid part of the decree.
The first ground raised by the learned counsel is that the suit for specific
performance of contract itself was not maintainable and in such
circumstances the said suit should have been dismissed, therefore, there
was no question of granting alternative relief but the learned court below
has wrongly granted alternative relief. There is neither pleading in terms
of Section 16(c) of the Specific Relief Act nor evidence in support of the
said fact therefore, the said suit ought to have been dismissed as not
maintainable as the plaintiff had no cause of action for the suit. The
learned court below has neither framed any issue nor any finding has
been given that the plaintiff was ready and willing and is still ready and
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willing to perform her part of the contract but decreed the plaintiff’s suit.
Secondly, the learned counsel Mr. V. Nath submitted that there is no
reliable evidence on record to show that in fact the agreement is genuine
agreement and the defendant appellant ever received the amount of
Rs.2,24,000/- as earnest money but the learned court below without
discussing the evidences available on record wrongly came to the finding
that the defendant-appellant has received the said amount and then
executed the Mahadanama. The learned court below has not appreciated
the evidences properly. The learned counsel in support of his submissions
relied upon various decisions which I shall consider later on.
9. On the other hand, Mr. Dhurub Narayan, the learned senior
counsel appearing on behalf of the respondent submitted that pleading of
Section 16(c) of the Specific Relief Act is there or not has become now
academic question only in view of the fact that the learned court below
has not granted the relief for specific performance of contract. However,
according to the learned counsel the exact wording mentioned in Section
16(c) of the Specific Relief Act is not required to be pleaded. The
intention of the parties can be seen from the entire reading of the plaint
and if from the plaint the facts are available which reflect that the
plaintiff was ready and is still ready and willing then the court could not
insist the pleading of exact wording as provided under Section 16(c) of
the Specific Relief Act. Here there is pleading and also evidence on
record. So far non-framing of issue is concerned no prejudice has been
caused to the defendant because the parties went to trial on the basis of
their respective pleadings and both the parties were knowing the case of
each other. The defendant was knowing that the suit has been filed by
the plaintiff for specific performance of contract where respondent is
required to prove her continuous readiness and willingness to perform
her part of the contract and the defendant pleaded that the said
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Mahadanama is forged and fabricated and he never received the earnest
money of Rs.2,24,000/-. Therefore, non-framing of issue is also
irrelevant in the present case because the main relief has not be granted.
However, the learned court below on the basis of the evidence found that
the defendant-appellant has received the amount of Rs.2,24,000/- as
earnest money and has executed the agreement i.e. Mahadanama in
presence of the witnesses. Considering the hardship the learned court
below has granted alternative relief to the plaintiff. On these grounds,
the learned counsel submitted that the first appeal is liable to be
dismissed with costs. According to the learned counsel the intention of
the appellant is bad and want to grab the earnest money paid by the
plaintiff after selling her ornaments etc. and in aid of his ill-intention
dragged the plaintiff-respondent upto this Court.
10. In view of the above contentions of the parties, the points
arises for consideration in this appeal are :
(1) Whether the plaintiff’s suit for specific performance was
maintainable ?
(2) Whether the plaintiff-respondent is entitled for a decree for
refund of the earnest money of Rs.2,24,000/- and whether the
impugned judgment and decree are sustainable in the eye of
law ?
11. The learned counsel for the appellant submitted that there is
neither pleading nor issue with regard to Section 16(c) of the Specific
Relief Act. The plaintiff is required not only to plead but also to prove that
she was ready and willing and is still ready and willing to perform her
part of the contract. In the present case, neither there is pleading nor
there is finding. From perusal of the pleading it appears that at
paragraph 4 there is specific pleading that there was agreement between
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the parties that the balance consideration amount of Rs.76,000/- shall be
paid by the plaintiff and then the sale deed shall be executed. At
paragraph 5 it is stated that in the month of October 2002 she arranged
the balance consideration of Rs.76,000/- and tendered the same to the
defendant but the defendant avoided. Then regularly the plaintiff was
tendering the balance amount but always the defendant was avoiding.
Then she gave advocate notice. After receiving the reply of the advocate
notice also the plaintiff went and again tendered the balance amount of
Rs.76,000/- on 14.11.2002 but he did not execute. These are the
pleadings regarding the readiness and willingness. In (1999) 6 SCC 337
Syed Dastagir Vs. T.R. Gopalakrishna Setty the Apex Court at
paragraph 9 had held as follows :
“9. So the whole gamut of the issue raised is, how to
construe a plea specially with reference to Section 16(c)
and what are the obligations which the plaintiff has to
comply with in reference to his plea and whether the
plea of the plaintiff could not be construed to conform
to the requirement of the aforesaid section, or does this
section require specific words to be pleaded that he has
performed or has always been ready and is willing to
perform his part of the contract. In construing a plea in
any pleading, courts must keep in mind that a plea is
not an expression of art and science but an expression
through words to place fact and law of one’s case for a
relief. Such an expression may be pointed, precise,
sometimes vague but still it could be gathered what he
wants to convey through only by reading the whole
pleading, depending on the person drafting a plea. In
India most of the pleas are drafted by counsel hence
the aforesaid difference of pleas which inevitably differ
from one to the other. Thus, to gather true spirit behind
a plea it should be read as a whole. This does not
distract one from performing his obligations as required
under a stature. But to test whether he has performed
his obligations, one has to see the pith and substance of
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then that has to be pleaded may be in any form. The
same plea may be stated by different persons through
different words; then how could it be constricted to be
only in any particular nomenclature or word. Unless a
statute specifically requires a plea to be in any
particular form, it can be in any form. No specific
phraseology or language is required to take such a plea.
The language in Section 16(c) does not require any
specific phraseology but only that the plaintiff must
aver that he has performed or has always been and is
willing to perform his part of the contract. So the
compliance of “readiness and willingness” has to be in
spirit and substance and not in letter and form. So to
insist for a mechanical production of the exact words of
a statute is to insist for the form rather than the
essence. So the absence of form cannot dissolve an
essence if already pleaded.”
12. It appears that in that case also there was no pleading of exact
wording as required under Section 16(c) of the Specific Relief Act, vide
paragraph 10 of the said judgment. Here also as stated above no doubt
there is no exact words but then it is clear that the plaintiff has averred
the fact to show that she has performed and has always been and is
willing to perform her part.
13. In (2000) 6 SCC 420 Motilal Jain Vs. Ramdasi Devi
(Smt.) and others the Apex Court has held that averment as to
readiness and willingness in plaint is sufficient if the plaint, read as a
whole, clearly indicates that the plaintiff was always and is still ready and
willing to fulfil his part of the obligations. Here in the present case at our
hand as stated above no doubt there is no exact word but then from
entire reading of the plaint it is clear that the plaintiff was ready and is
still ready to perform her part of the contract.
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14. The learned counsel for the appellant relied upon AIR 1968
SC 1355 Prem Raj Vs. The D.L.F. Housing and Construction
(Private) Ltd. and another and submitted that the Hon’ble Court has
held that when there is no pleading than the plaintiff had no cause of
action and placed reliance at paragraph 5 of the judgment. From perusal
of the said decision it appears that the Hon’ble Apex Court nowhere
decided that there must be exact wording that the plaintiff was ready and
is still ready and willing to perform her part of the contract. Further it
appears that in that case the plaintiff filed the suit for a declaration that
the contract against him is void and inoperative having been obtained by
undue influence and in the same suit alternatively pleaded that the said
contract may be specifically enforced. In the very first paragraph the
Apex Court framed the point to the effect that “the sole question involved
in this appeal is whether the plaintiff suing for a declaration that a certain
contract against him is void and inoperative having been obtained by
undue influence, can in the same suit in the alternative ask for the relief
of specific performance of same contract”. The Hon’ble Court held that
the plaintiff suing for specific performance of contract can alternatively
sue for recision of the contract but converse is not provided. It is
therefore, not open to plaintiff to sue for recision of the agreement and in
the alternative sue for specific performance. I, therefore, find that this
decision is not helpful to the appellant.
15. The learned counsel for the appellant next relied upon AIR
1990 SC 682 Abdul Khader Rowther Vs. P.K. Sara Bai and others
and submitted that the plaintiff is required to plead that he is ready and
willing to perform his part of the contract and in absence of such an
allegation the suit is not maintainable. From perusal of the said decision
it appears that the High Court found as follows :
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“Even by putting a liberal construction on the various
statements contained in the plaint, it is difficult to hold
that there has been even a faint attempt to make it to
conform to the requirements prescribed in Forms 47 and
48 of the First Schedule in the Civil Procedure Code, that
the plaintiff had applied to the defendants specifically to
perform the agreement and that he had been and is still
ready and willing to specifically perform his part of the
agreement ………….”.
The Hon’ble Apex court found that the High Court was justified in
coming to that conclusion. Therefore, it appears that from plaint of
that case the intention of the plaintiff about readiness and willingness
was not reflected. I therefore, find that this decision also is not helpful
to the defendant.
16. The learned counsel for the appellant relied upon another
decision reported in 2004 (3) PLJR 255 (SC) Pukhraj D. Jain and
others Vs. G. Gopalakrishna on the same question i.e. pleading in
terms of Section 16(c) of the Specific Relief Act. From perusal of the
said decision it appears that in that case the Apex Court found that the
respondent No.1 himself sent a legal notice rescinding the contract and
thereafter filed suit claiming refund of the advance paid by him and in
fact the suit for recovery of the amount was decreed by the trial court
on 24.7.1985. Against the said decree a revision was filed by the
respondent wherein an order of rejection of the plaint was passed by
the High Court. In such circumstances, the Apex Court held that it is
absolutely apparent that the respondent no.1 was not ready and
willing to perform his part of the contrary and in view of the mandate
of Section 16 of the Specific Relief Act no decree for specific
performance could be passed in his favour and further held that the
trial court has rightly held that the suit was not maintainable. Here the
fact is entirely different. Moreover, the Apex Court in this decision also
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nowhere settled that specific and exact wording should be there
according to form 47 and 48 of the Code of Civil Procedure.
17. In view of the above discussions, it is clear that the fact
required to be pleaded under Section 16 (c) of the Specific Relief Act
must be pleaded but may be in any form so the compliance of
readiness and willingness has to be in spirit and substance and not in
latter and form. Therefore, to insist for a mechanical production of the
exact word of a statute is to insist for the form rather than the
essence. The plea is not an expression of art and science but an
expression through words to place fact and law and one’s case for a
relief. It could be gathered only by reading the whole pleading and
the pleading depends on the skill of the person drafting the same. It is
well settled principles of law that emphasis should not be given in the
form of pleading rather the court is required to find out the substance
of the pleading.
18. In view of the above settled principles of law in the present
case at our hand it cannot be said that there is no pleading in terms of
Section 16 (c) of the Specific Relief Act. Moreover, the learned court
below has not granted the main relief i.e. relief for specific
performance of the contract dated 22.12.1999 Ext.3. The learned
counsel for the appellant submitted that when the suit itself was not
maintainable for want of pleading as require under Section 16(c) of the
Specific Relief Act there was no question of granting the alternative
relief arose. So far this submission is concerned I do not agree with
the learned counsel. We have seen the settled principles laid down by
the Apex Court as referred to above. None of the decisions cited by the
appellant is in support of the contention of the appellant. Section 16(c)
of the Specific Relief Act do not bar the institution of the suit. It is only
a personal bar against the plaintiff to a relief for specific performance
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of a contract. Therefore, it cannot be said that the suit is not
maintainable. I therefore, find that the suit was maintainable and from
the reading of the plaint I find that the plaintiff was ready and is still
ready and willing to perform her part of the contract.
19. The learned counsel for the appellant next submitted that
the learned court below has wrongly held that the plaintiff had paid
earnest money of Rs.2,24,000/- Now let us consider the evidence on
this point as to whether the plaintiff has been able to prove that
earnest money Rs.2,24,000/- was paid at the time of execution of
Mahadanama or not. PW 1 is the plaintiff herself. She has fully
supported her case as made out in the plaint at paragraph 3 in
examination-in-chief. She has stated that Rs.2,24,000/- was paid in
cash as earnest money. PW 3 Sankar Prasad at paragraph 4 has stated
that in his presence the Mahadanama was scribed and it was read over
and explained to the defendant and plaintiff paid Rs.2,24,000/- and
agreed to pay rest Rs.76,000/- at the time of registration. It may be
mentioned here that no cross-examination has been made to this
witness regarding the payment of Rs.2,24,000/- as earnest money.
The learned counsel for the appellant submitted that he is relation of
the plaintiff. On the ground of relationship in civil case the evidence
cannot be discarded particularly, when no cross-examination has been
made by the other side. It is well settled principles of law that if no
cross-examination is made on a particular fact stated by the witness
against the other part then it will be presumed that the said statement
made by the witness is admitted to be true by the other side. PW 5
has also stated at paragraph 7 of his evidence that Rs.2,24,000/- was
paid and Ram Chandra had told him. However in the cross-
examination at paragraph 9 he has clarified the statements made in
paragraph 7 and has clearly stated that he was also a witness to the
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payment of Rs.2,24,000/-. This clarification has been obtained by the
appellant himself in the cross-examination. When this witness stated
that he is a witness to the payment then also no further cross-
examination has been made to him on this point. In other words, this
statement made by the witness at paragraph 9 of his cross-
examination was admitted by the appellant and not denied. PW 7 is
the husband of the plaintiff. He has also stated about the payment of
Rs.2,24,000/- as earnest money to the appellant vide paragraph 5 of
his examination-in-chief. Surprisingly, no cross-examination has been
made on the said point to this witness also. Ext. 3 is the Mahadanama.
In the Mahadanama itself the defendant has clearly mentioned that he
has received Rs.2,24,000/- as earnest money. In his evidence the
defendant who was examined as DW 10 admitted that he has signed
on Mahadanama but he has stated that he signed in intoxicated
condition. So far this explanation is concerned it is not reliable. When
this witness deposed before the court below he was remembering that
when he signed on Mahadanama Ext.3 he was in intoxicated condition
which itself means that he signed it out of his free will after
understanding the contents and effect of the Mahadanama. He is a
government servant. It is not his case that he was not in a position to
understand the effect of the Mahadanama. Moreover, this is only an
explanation for the sake of explanation which cannot be relied upon
and accepted. The learned counsel for the appellant submitted that the
husband of the plaintiff obtained the signatures on plain paper on the
pretext that he will obtain loan from the department for the defendant.
So far this submission is concerned also I find no force because
admittedly the appellant is employee in health department and the
husband of the plaintiff is contractor. In such circumstances how and
in what circumstances the contractor could have obtained loan from
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the health department that too for the defendant ? It may be
mentioned here that on the admission of DW 10 his signature on
Mahadanama has been marked as Ext.8. The defendant has also
examined other witnesses but those witnesses have deposed in the
negative. It is settled law that negative need not be proved, denial is
sufficient. Therefore, it was for the plaint to prove as to whether the
payment of Rs.2,24,000/- was made or not. In such view of the
matter, it is not necessary to deal the oral evidences of the defendant
in great detail regarding payment of the amount. Moreover, none of
them are witnesses in the Mahadanama Ext.3.
20. In view of the above discussion of the evidences, I find that
the plaintiff has been able to prove that a sum of Rs.2,24,000/- was
paid as earnest money on the date of execution of Ext.3. The
explanation given by the defendant is not accepted. The finding of the
learned court below on this point is therefore, confirmed.
21. In view of the above, I find no merit in this first appeal and
accordingly, this first appeal is dismissed with cost of Rs.20,000/-. The
plaintiff-respondent is entitled to realize the said amount of cost from
the defendant-appellant.
(Mungeshwar Sahoo, J.)
Patna High Court, Patna
The 16th May, 2011
S.S. /A.F.R.