Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2019 Supreme(SC) 167

SUPREME COURT OF INDIA
ABHAY MANOHAR SAPRE, DINESH MAHESHWARI, JJ.
MEHBOOB-UR-REHMAN (DEAD) THROUGH LRS – Appellant(s)
Versus
AHSANUL GHANI – Respondent(s)
Civil Appeal No. 8199 of 2009
Decided on : 15-02-2019

Advocates Appeared:
For the Appellant : Mr. Syed Mehdi Imam, AOR Mr. Atif Suhrawardy,Adv.
For the Respondent: Mr. M. M. Kashyap, AOR

IMPORTANT POINT
Specific performance of contract cannot be enforced in favour of a person who fails to prove that he has already performed or has always been ready and willing to perform essential terms of contract which are to be performed by him.

Headnote:(A) Specific Relief Act, 1963 – Section 16(c) – Agreement to sell – Suit for specific performance – Relief of specific performance is not that of common law remedy but is essentially an exercise in equity – In Specific Relief Act, 1963, even while providing for various factors and parameters for specific performance of contract, provisions are made regarding contracts which are not specifically enforceable as also persons for or against whom contract may be specifically enforced – Specific performance of contract cannot be enforced in favour of a person who fails to prove that he has already performed or has always been ready and willing to perform essential terms of contract which are to be performed by him, other than terms of which performance has been prevented or waived by other party – Plaintiff had failed to aver and prove his continuous readiness and willingness to perform his part of contract – Suit was bound to fail on this ground alone – Late attempt to improve upon pleadings of plaint at appellate stage was only an exercise in futility in present case – Relief of specific performance of agreement in question has rightly been declined by First Appellate Court and High Court – No case for interference being made out – Appeal dismissed. (Paras 13, 14, 17, 18 and 22)
       (B) Civil Procedure Code, 1908 – Section 100 – Second appeal – Substantial question of law – As per Section 100 CPC, appeal would lie to High Court from decree passed in appeal by any Court subordinate only if High Court is satisfied that case involves a substantial question of law – Court could hear appeal on any other substantial question of law not formulated by it, but only after recording reasons that case involves such question – Proviso to sub-section (5) of Section 100 CPC is not intended to annul other requirements of Section 100 – It cannot be laid down as a matter of rule that irrespective of the question/s formulated, hearing of second appeal is open for any other substantial question of law, even if not formulated earlier. (Paras 20 and 21)
       Facts of Case:
       Appellant (since deceased and represented by his legal representatives) had filed suit for specific performance of Agreement to Sell. Suit was decreed by Trial Court. However, decree so passed by Trial Court was reversed by First Appellate Court essentially on the ground that plaintiff had failed to aver and prove his continuous readiness and willingness to perform his part of contract. High Court of Judicature at Allahabad, in its impugned judgment, while dismissing second appeal filed by plaintiff-appellant, affirmed decree passed by First Appellate Court. Aggrieved, plaintiff-appellant has preferred instant appeal.
       Findings of Court:
       Proviso to sub-section (5) of Section 100 CPC is not intended to annul other requirements of Section 100 and it cannot be laid down as a matter of rule that irrespective of the question/s formulated, hearing of second appeal is open for any other substantial question of law, even if not formulated earlier. Said proviso, by its very nature, could come into operation only in exceptional cases and for strong and convincing reasons, to be specifically recorded by High Court. There being no such strong and convincing reason in the present case to formulate and hear second appeal on any other question of law, High Court cannot be faulted in rejecting contentions urged on behalf of plaintiff-appellant in this regard.
       Result : Appeal dismissed.

JUDGMENT

Dinesh Maheshwari. J.

The appellant herein (since deceased and represented by his legal representatives) had filed the suit for specific performance of Agreement to Sell, being O.S. No. 392 of 1979, that was decreed by the Court of II Additional Civil Judge, Kanpur Nagar by the judgment and decree dated 10.12.1981. However, the decree so passed by the Trial Court was reversed by the Court of IX Additional District Judge, Kanpur Nagar in its judgment and decree dated 03.07.1995 in Appeal No. 54 of 1982, essentially on the ground that the plaintiff had failed to aver and prove his continuous readiness and willingness to perform his part of the contract. The High Court of Judicature at Allahabad, in its impugned judgment dated 10.12.2007 in R.S.A. No. 931 of 1995, while dismissing the second appeal filed by the plaintiff-appellant, affirmed the decree passed by the First Appellate Court. Aggrieved, the plaintiff-appellant has preferred this appeal.

2. Briefly put, the relevant background aspects of the matter are that on 13.08.1979, the plaintiff-appellant filed the suit aforesaid with the averments that the defendant-respondent had executed an agreement dated 16/17.04.1975 in his favour for sale of the property in question, being House Number 102 at Faithful Ganj, Kanpur Nagar, for a consideration of Rs. 30,000/-; and that a sum of Rs. 15,000/- was paid as earnest money while the remaining amount was payable at the time of execution and registration of the sale deed. The plaintiff-appellant further averred that after the agreement, the Urban Land (Ceiling and Regulation) Act, 1976 came to be promulgated prohibiting transfer of the property without permission of the Competent Authority; and the defendant-respondent was required to obtain such permission but failed to do so despite requests. The plaintiff-appellant yet further averred that on 06.05.1979, he served a notice on the defendant-respondent for obtaining permission from the Ceiling Authorities and for execution of the sale deed to which, the defendant-respondent sent a reply dated 06.07.1979 stating ignorance about the agreement and sought a copy thereof for proper reply while alleging that his signatures were obtained on some papers in relation to a suit filed by the State Bank of India. The plaintiff-appellant stated that these were the false pretexts taken by the defendant who was bound to execute the sale deed for the house in question after seeking necessary permission; and for him having failed to do so, the suit was being filed for enforcing specific performance of the agreement.

3. The defendant-respondent, while denying the plaint averments, inter alia, alleged that he was involved as a guarantor in relation to the loan taken by a firm M/s Adam Textiles from the State Bank of India and his house in question was hypothecated to the said bank; and when the bank threatened to take action against him, the plaintiff, who was known to him, assured of contesting the matter on his behalf and persuaded him to hand over possession of the house in question on rental basis. The defendant alleged that he got deceived on persuasion of the plaintiff and, for the purpose of conducting the trial of the suit filed by the bank, his signatures were obtained on blank papers on which, some document was fabricated; and that the copy of the alleged agreement was never supplied to him despite demand. The defendant also took the objections regarding limitation, valuation and court fees.

4. On the pleading of parties, the Trial Court framed the following issues for determination of the questions involved in the matter:-

"1. Whether the suit is under valued and court fee paid is insufficient?
2. Whether the suit is barred by time?
3. Whether the agreement is forged as alleged?
4. Whether the agreement was got affected by fraud, misrepresentation as alleged in paras 12 to 15 of W.S.?
5. To what relief if any is the plaintiff entitled?"

5. After taking the evidence and having heard the parties

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2019 Supreme(SC) 167

SUPREME COURT OF INDIAABHAY MANOHAR SAPRE, DINESH MAHESHWARI, JJ. MEHBOOB-UR-REHMAN (DEAD) THROUGH LRS – Appellant(s)Versus AHSANUL GHANI – Respondent(s)Civil Appeal No. 8199 of 2009Decided on : 15-02-2019

IMPORTANT POINTSpecific performance of contract cannot be enforced in favour of a person who fails to prove that he has already performed or has always been ready and willing to perform essential terms of contract which are to be performed by him.

Cases Referred (5)

SUPREME COURT OF INDIA
ABHAY MANOHAR SAPRE, DINESH MAHESHWARI, JJ.
MEHBOOB-UR-REHMAN (DEAD) THROUGH LRS – Appellant(s)
Versus
AHSANUL GHANI – Respondent(s)
Civil Appeal No. 8199 of 2009
Decided on : 15-02-2019

IMPORTANT POINT
Specific performance of contract cannot be enforced in favour of a person who fails to prove that he has already performed or has always been ready and willing to perform essential terms of contract which are to be performed by him.