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Karnataka High Court
H.MUTHUNANJAIAH - Appellant
Versus
C.G.INDIRAMMA (DECEASED) BY L.Rs - Respondent
Decided On : 05-27-04
R.F.A. : 430 of 1999
BURDEN OF PROOF - Suit for specific performance -Ready and willingness -Burden of proof -Lies on the plaintiff throughout.
[K. Sreedhar Rao, J]: In a suit for specific performance suit, it is necessary that the plaintiff should establish that he is ready and willing to perform his part of the contract throughout. No doubt, plaintiff issued notice under Ex. P. 2 intimating his willingness to pay his balance and to obtain the registered sale deed as per Ex. P. 1. The plaintiff initially filed the suit not on the basis of Ex. P. 1 but invoked the right of pre-emption; offered for less consideration than what is agreed under Ex. P. 1. The plaintiff, although amended the pleading to seek the relief of specific performance on the basis of Ex. P. 1. But, the mental attitude and conduct of the plaintiff, demonstrated in the initial pleadings belies the claim of readiness and willingness to perform the terms of the contract throughout as per the terms stated in Ex. P. 1. The contention that the previous deleted pleadings need not be looked into under all circumstances is untenable. In a case of misstatement of fact if the pleadings are amended, the amended version is to be taken into consideration and not the deleted version. In the present case, the said principle has no application. The plaintiff has to plead and prove readiness and willingness throughout, which means even on the date of the suit. The suit initially was not based on Ex. P. 1 but on the right of presumption, which belies the contention of readiness and willingness a on the date of the suit.
Amendment of pleadings
CIVIL PROCEDURE CODE, 1908 - Order 6, Rule 17 -Amendment of pleadings -Suit on the ground of pre-emption -Plaint amended, certain pleadings deleted, relief of specific performance sought -Now, can the deleted pleadings be considered? If there is misstatement of facts, only the amended version should be considered -Principle not applicable to facts of the case.
[K. Sreedhar Rao, J]: In a suit for specific performance suit, it is necessary that the plaintiff should establish that he is ready and willing to perform his part of the contract throughout. No doubt, plaintiff issued notice under Ex. P. 2 intimating his willingness to pay his balance and to obtain the registered sale deed as per Ex. P. 1. The plaintiff initially filed the suit not on the basis of Ex. P. 1 but invoked the right of pre-emption; offered for less consideration than what is agreed under Ex. P. 1. The plaintiff, although amended the pleading to seek the relief of specific performance on the basis of Ex. P. 1. But, the mental attitude and conduct of the plaintiff, demonstrated in the initial pleadings belies the claim of readiness and willingness to perform the terms of the contract throughout as per the terms stated in Ex. P. 1. The contention that the previous deleted pleadings need not be looked into under all circumstances is untenable. In a case of misstatement of fact if the pleadings are amended, the amended version is to be taken into consideration and not the deleted version. In the present case, the said principle has no application. The plaintiff has to plead and prove readiness and willingness throughout, which means even on the date of the suit. The suit initially was not based on Ex. P. 1 but on the right of presumption, which belies the contention of readiness and willingness on the date of the suit.
Amendment
PLEADINGS - Amendment -Misstatement of facts -Deleted pleadings need not be considered -Only the amended version be considered.
[K. Sreedhar Rao, J]: In a case of misstatement of fact if the pleadings are amended, the amended version is to be taken into consideration and not the deleted version. In the present case, the said principle has no application.
Specific performance
SPECIFIC RELIEF ACT, 1963 - Section 16 -Specific performance -Suit for -Plaintiff to prove his ready and willingness to perform his part of contract -Notice issued to defendant stating his willingness to pay balance amount -But, initially his suit was on the ground of pre-emption -Later amended pleadings seeking relief of specific performance -His mental attitude and conduct hence, belies his claim of ready and willingness.
[K. Sreedhar Rao, J]: In a suit for specific performance suit, it is necessary that the plaintiff should establish that he is ready and willing to perform his part of the contract throughout. No doubt, plaintiff issued notice under Ex. P. 2 intimating his willingness to pay his balance and to obtain the registered sale deed as per Ex. P. 1. The plaintiff initially filed the suit not on the basis of Ex. P. 1 but invoked the right of pre-emption; offered for less consideration than what is agreed under Ex. P. 1. The plaintiff, although amended the pleading to seek the relief of specific performance on the basis of Ex. P. 1. But, the mental attitude and conduct of the plaintiff, demonstrated in the initial pleadings belies the claim of readiness and willingness to perform the terms of the contract throughout as per the terms stated in Ex. P. 1. The contention that the previous deleted pleadings need not be looked into under all circumstances is untenable. In a case of misstatement of fact if the pleadings are amended, the amended version is to be taken into consideration and not the deleted version. In the present case, the said principle has no application. The plaintiff has to plead and prove readiness and willingness throughout, which means even on the date of the suit. The suit initially was not based on Ex. P. 1 but on the right of presumption, which belies the contention of readiness and willingness a on the date of the suit.
( 1 ) THE appellant is the plaintiff filed the suit initially for a direction against the defendant to execute the sale deed by receiving a sum of Rs. 22,000/- on the ground of right of preemption. Later on, the plaintiff amended the plaint set up the agreement for sale dated 7-9-1984 and sought relief of specific performance.
( 2 ) IT is the case of the plaintiff that himself and his brother one beerappa got divided under Ex. P. 5 dated 8-2-1984. The suit property which is allotted to the brother of the plaintiff is sold to defendant under ex. D. 3 dated 5-9-1984 for a sum of Rs. 32,000/ -. The plaintiif entered into an agreement for purchase of the same under Ex. P. 1 dated 7-9-1984. The plaintiff has no knowledge that the consideration under ex. D. 3 is Rs. 32,000/ -. Under Ex. P. 1 the total sale consideration agreed is Rs. 95,000/-, an advance of Rs. 10,000/- was paid at the time of ex. P. 1. The sale is to he completed within 40 days from the date of Ex. P. 1 by paying the balance of consideration. The plaintiff issued notice as per Ex. P. 2 to the defendant to receive a balance of consideration and to execute the sale deed. The defendant replied as per Ex. P. 3 dated 15-10-1984 that advance paid was only Rs. 1,000/- and not Rs. 10,000/ -. Therefore insisted on payment of balance of Rs. 94,000/- for executing the sale deed.
( 3 ) THE plaintiff filed a suit initially not on the basis of Ex. P. 1 but invoked the right of preemption. It is the contention that the brother of the plaintiff who was vendor of the defendant was not entitled to sell the suit property to the defendant without providing option to the plaintiff. Therefore, contends that the sale in favour of the defendant is in breach of the right of preemption of the plaintiff. Accordingly', sought a relief of direction to the defendant to convey the property to the plaintiff at,the value stated in Ex. D. 3. It is further said that advance of Rs. 10,000/- paid is to be deducted from the sale value of Ex. D. 3, the balance of Rs. 22,000/- is offered to the defendant for executing the sale deed. The plaintiff later on amended the plaint to seek relief of specific performance on the basis of the agreement for sale at Ex. P. 1. The plaintiff also contends that he is ready and willing to perform his part of the contract throughout. The plaintiff has also deposited the balance of consideration.
( 4 ) THE Trial Court has found that the plaintiff has failed to prove that he is ready and willing to perform his part of the contract throughout and dismissed the suit. The relevant observations of the trial Court in its findings on Issue No. 3 at para 18 is extracted hereunder for convenient reference:"on going through the agreement Ex. P. 1, it can be seen that the agreed amount of consideration was Rs. 95,000/ -. The plaintiff had also agreed to pay the expenses of registration incurred by the defendant for getting the sale deed in her name from her vendor, apart from the aforesaid consideration amount. The plaintiff has contended that he was ready to pay the balance amount of consideration. On going through the plaint it can bee seen that the plaintiff had initially filed this suit on the basis of pre-emption, claiming that the suit property should be sold to him for a sum of rs. 32,000/- only. The plaintiff had offered to pay the balance amount of Rs. 22,000/- though as per the suit agreement, the balance amount is Rs. 85,000/ -. The plaintiff had subsequently amended the plaint and he had sought for an alternative relief of specific performance and he had agreed to pay the balance amount of Rs. 85,000/ -. The suit was filed on 19-7-1985 and the aforesaid amendment was done on 2-7-1991. The learned Counsel for the plaintiff has contended that the amendment of the plaint will relate back to the date of the institution of the suit, he has relied on a decision reported in M. L. Shankaranarayana Rao v corporation of the City of Bangalore, 1973 (2) Mys. L. J.
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