IMPORTANT POINTS
High Court, in second appeal, has to formulate substantial question of law eve if not formulated in the Memo of appeal. Arguments and decision should confine to substantial question of law. Other question of law, not so formulated, can also be argued and heard provided reasons are recoded therefor.
Readiness and willingness to perform his part of contract of by the party seeking specific performance of other party can be gathered from his conduct.

Headnote:(a) Code of Civil Procedure, 1908 – Section 100 r/w Order XLI, Rule 3 – Substantial question of law – Memo of appeal must contain substantial question of law and High Court must formulate substantial question of law – Substantial question of law even though not formulated, can be argued and heard – However reasons should be recorded for hearing such questions of law – Memo of appeal not containing substantial question of law may be rejected or returned for necessary amendment. (Para 17, 18, 20)
       (2005) 12 SCC 588; (2007) 1 SCC 546 – Referred
       (b) Code of Civil Procedure, 1908 – Section 100 – High Court not formulating any substantial question of law – Only after conclusion of arguments formulating some questions of law and deciding the appeal – Impugned judgment vitiated in law. (Para 23)
       (c) Specific Relief Act, 1963 – Section 16(c) – Readiness and willingness – Means that the person claiming performance has kept the contract subsisting with preparedness to fulfill his obligation and accept the performance when the time for performance arrive – Language – Not necessary to use language of the provision – Sufficient facts and evidence brought on record satisfying court about readiness and willingness of plaintiff to perform his part – Absence of specific words – Not fatal. (Para 26, 32)
       AIR (39) 1952 SC 47; (1999) 6 SCC 337; AIR 2006 SC 2172; 55 IA (PC) 360 – Relied upon
       16 DLR (1964) 138; (1851) 17 Queen's Bench Reports 127 – Referred
       (d) Specific Relief Act, 1963 – Section 16(c) – Plaintiff, before the agreed date of reconveyance depositing consideration amount and asking defendants to execute sale deed – Defendant deferring and delaying the matter – Plaintiff constrained to file suit – Plaintiff always been ready and willing to perform his part – Entitled for specific performance by defendants. (Para 34)
       Facts of the case:
       The plaintiffs-appellants in need of money took a loan of Rs.3,000/-from the defendants-respondents and executed a registered Kobala dated 24.11.1964. On the same day, a registered Ekrarnama was also executed between the parties stipulating the terms of re-conveyance on payment of the loan amount by the appellants to the respondents.
       In the year 1970, the appellants filed a suit being Title Suit No.215 of 1970 against the defendants. The plaint was amended and prayer for specific relief included.
       Munsif court decreed the suit holding that the suit was not barred by limitation.
       First appeal was dismissed.
       Second Appeal was finally allowed.
       Finding of the Court:
       Impugned judgment passed by the High Court cannot be sustained in law.
       Result: Appeal allowed.

JUDGMENT

M.Y. EQBAL, J.

1. This appeal is directed against the judgment and order dated 28.3.2005 passed by Calcutta High Court in S.A. No.244 of 1987 whereby the judgment and decree passed by the Trial Court as also the Appellate Court has been reversed and the suit was dismissed holding that the suit itself was barred by limitation and lack of relevant pleading and evidence disentitle the plaintiff-appellant to get a decree for specific performance and for re-conveyance of the suit property.

2. The facts of the case lie in a narrow compass.

3. The plaintiffs-appellants in need of money took a loan of Rs.3,000/-from the defendants-respondents and executed a registered Kobala dated 24.11.1964. On the same day, a registered Ekrarnama was also executed between the parties stipulating the terms of re-conveyance on payment of the loan amount by the appellants to the respondents.

4. In the year 1970, the appellants filed a suit being Title Suit No.215 of 1970 against the defendants before the Sub-Divisional Munsif, Bangaon under Section 36 of the Bengal Money Lenders Act, 1940. The said suit was resisted by the defendants-respondents, stating therein that the aforesaid sale deed executed by the plaintiffs was out an out-sale of the suit property and possession was also delivered to the respondents. The learned Munsif in terms of the judgment dated 20.12.1973 dismissed the suit. The plaintiffs then filed appeal against the said judgment being Title Appeal No.350 of 1974. The learned Additional District Judge, upon hearing the parties, allowed the appeal and remanded the matter back to the Trial Court with a direction to the Trial Court to allow the plaintiffs-appellants an opportunity for amending the plaint and to add prayer for specific performance of the contract and to pass fresh judgment in accordance with law.

5. Consequent upon the remand, the appellants amended the plaint by filing application on 1.3.1975 adding prayer for specific performance of contract to transfer the suit property in terms of the agreement for re-conveyance. The said application for amendment was allowed and the learned Munsif framed additional issues, and after considering the evidence on record finally decreed the suit holding that the suit was not barred by limitation. The court of Munsif held that the order for amendment related back to the date of institution of the suit and, therefore, the suit cannot be held to be barred by limitation. Aggrieved by the said judgment and decree, the defendants-respondents filed appeal being Title Appeal No.836 of 1983, which was dismissed on merit by the First Appellate Court. The respondents then filed Second Appeal, which was finally allowed in favour of the defendant-respondents and the judgment and decree passed by both the courts of Munsif and the Additional District Judge have been set aside. Hence, this appeal by special leave by the plaintiff-appellants.

6. From the impugned judgment passed by the High Court it appears that the High Court formulated the following substantial questions of law and considered the same while allowing the appeal:

“1) Whether the Learned Courts below erred in law in granting a decree for specific performance of contract notwithstanding the fact that the necessary averment as required by the provisions of the Specific Relief Act were absent in the plaint.

2) Whether from the materials on records both the learned Courts below ought to have held that the plaintiffs had failed to plead and prove that they were ready and willing to perform their part of contract.

3) Whether the prayer for specific performance of contract in the instant case is barred by limitation.

4) Whether the amendment as prayed for was rightly allowed and whether on the basis of the said amendment both the Courts below rightly decreed the suit.”

7. Before we proceed with the matter, it would be proper to first go through the judgment of remand passed by the Additional District Judge in first round of appeal being Ti

Click Here to Read the rest of this document

2014 Supreme(SC) 206

SUPREME COURT OF INDIA Jagdish Singh Khehar, M.Y. Eqbal, JJ. BISWANATH GHOSH AND OTHERS (Dead) by LRs. - APPELLANT(S)VERSUS GOBINDA GHOSH ALIAS GOBINDHA CHANDRA GHOSH AND OTHERS - RESPONDENT(S) CIVIL APPEAL NO.3672 OF 2007 Decided on : 14-03-2014

Cases Referred (4)

SUPREME COURT OF INDIA
Jagdish Singh Khehar, M.Y. Eqbal, JJ.
BISWANATH GHOSH AND OTHERS (Dead) by LRs. - APPELLANT(S)
VERSUS
GOBINDA GHOSH ALIAS GOBINDHA CHANDRA GHOSH AND OTHERS - RESPONDENT(S)
CIVIL APPEAL NO.3672 OF 2007
Decided on : 14-03-2014