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1995 Supreme(Bom) 418
IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
V.S. Sirpurkar, J.
Damodhar son of Vishwanath Deshbharatar another.... Appellants.
Versus
Vijay son of Murari Meshram.... Respondent.
Second Appeal No. 394 of 1993, decided on 22/25-9-1995.
Advocates appeared :
V.C. Daga, for the appellant.
Ram Sambre Abhay Sambre, for the respondent.
Headnote:Order VI, Rule 7-See Specific Relief Act, 1963-Section 19(1)(b).
Section 16(c)-Scope of.
The argument of appellant is that both the Courts below have erred in holding that the plaintiff was always ready and willing to perform his part of the contract and continued to be so till after the filing of the suit. To buttress his argument appellant contends that there are no specific pleadings in keeping with Form 47 to the First Schedule of the Code of Civil Procedure. According to Shri Daga, the language of Section 16(c) of the Specific Relief Act is of mandatory nature and, therefore, if the plaintiff fails to aver in his plaint that he has performed and has also been ready and willing to perform essential terms of the contract which has to be performed by him, the suit must essentially fail.
In short, in all the three cases relied upon by Counsel, the agreements, of which the specific performance was sought by the plaintiffs were attacked by the plaintiffs and were not relied upon and in that back drop, the Supreme Court in each case gave a finding that the plaintiff had not proved that he was all through ready and willing to perform his part of the contract and continued to be so even at the time of filing of the suit and thereafter. Such is certainly not the situation here.
Here, the agreement is dated 22.12.1983. In this agreement, it is agreed that the total consideration of the sale would be Rs. 20,000/- out of which Rs. 5,000/- have been admittedly paid on the date of the agreement. The agreement was to be executed within six months, or on the day as was convenient to the purchaser, i.e., the plaintiff and as such the formalities were to be completed before 22nd June, 1984. It was agreed that the plaintiff was to contact the defendant before that date. In keeping with this, the defendant No.1 was given a notice by the plaintiff on 18.5.1984 itself i.e., even one month prior to the lapse of six months which was the time agreed to in the agreement. By this notice, the defendant No.1 was directed to remain present on 22.6.1984 in the Office of the Sub-Registrar, Nagpur. Accordingly, there is an evidence on record that the plaintiff did attend the office of the Sub-Registrar, Nagpur, on 22.6.1984, and finding that the defendant had defaulted to come, he immediately gave a notice on 16.6.1984 which was a public notice duly published in Daily Lokmat. It is claimed that there was also a telegram sent on 18.6.1984 and there is no serious dispute about it. On this backdrop it was held by the Courts below that right till the last notice was given and even up to 22.6.1984, the plaintiff had shown his keenness to abide by the agreement and had shown his readiness to perform his part of the contract by intimating the defendant No. 1, that he was ready with the consideration of Rs. 15,ooo/- in para 8 of his plaint.
Now, here what has been shown by the plaintiff in the plaint is that he had issued a legal notice signifying his readiness and willingness and it is also further reiterated that though the defendant had failed to perform his part of the contract, the plaintiff has performed his part of the contract Grammatically though the sentence was incorrect, it does signify the meaning that the plaintiff was still ready to perform his part of the contract. It will have to be remembered here that all that was required to be done by the plaintiff was to keep Rs. 15,000/- ready and to pay them in order to obtain the sale-deed from the defendant No. 1 The availability of this amount was already signified by him by the legal notice which he had sent to the defendant No. 1 and regarding the receipt of which by the defendant No. 1 there is no contest Further, he has also stated that the defendant had failed to attend the office of the Sub- Registrar, Nagpur, as per that legal notice and, thus, had defaulted to execute a sale-deed in his favour. It is, thereafter that a clause follows signifying that the plaintiff has performed his part of the contract". What the plaintiff meant thereby was that Rs. 15,000/- was ready with him and he was willing to take the sale-deed after parting with that amount. In the light of the attendant circumstances and in the light of the evidence led by the plaintiff, the Court will have to give a liberal construction to this pleading in para 8 of the plaint and it will have to be held that this is not a case where the essential pleas as contemplated by Section 16(c) of the Specific Relief Act and Form 47 of the First Schedule of the Code of Civil Procedure, are absent.
Section 19(1)(b)-Civil Procedure Code, 1908, Order VI, Rule 7Limitation Act, 1963, Article 58-Negative pleadings-Whether required to be made?
Held; in the first place, the correctness or otherwise of the impugned order of amendment had not been questioned before the first Appellate Court. The grounds of appeal before the first Appellate Court are completely silent. As if that is not sufficient, that ground is not raised before this Court also. This second appeal has also not been admitted on that question. However, Shri Daga contends that even if he had not raised that ground, he was entitled to raise the same as it was regarding the limitation and, therefore, went directly to the root of the matter in the first place, it is difficult to accept the contention of Shri Daga" that he can raise this ground in this second appeal, particularly when he has not taken the said ground before the first Appellate Court as also before this Court.
However, it must again be observed that the contention regarding the limitation is also incorrect. In the first place, Shri Daga is not right in his submission that the right to sue the defendant No.2 accrued to the plaintiff for the first time when the defendant No.1 disclosed the fact of the sale of the property in his written statement. It has to be remembered that the defendant No. 1 Was an adversary to the plaintiff. It would not be said, therefore, that the plaintiff could rely blindly on the contentions defendant No.2 and on that basis proceed against defendant No.2 also. After all, the plaintiff had no authentic information or knowledge that there was a sale-deed effected by the defendant No. 1 in favour of defendant No.2. Again this was a disclosure by defendant No.1 and could not as such provide a basis for actual of right to sue against defendant No.2. Undoubtedly on that basis the plaintiff did join the defendant No.2 as a party. However, when defendant No. 2 has asserted the fact of this sale-deed on 21.1.1985. When he filed his written statement and pointed out that he had purchased the property, the amendment was made on 21.4.1988 within three years. There can be no dispute with the law laid down in the reported decisions mentioned supra, but the factual basis in each of those decisions is different.
This is apart from the fact that the amendment of the prayer clause for claiming declaration against the defendant No.2 was itself wholly unnecessary, simply because of the reason that the plaintiff was claiming a specific performance only against defendant No.1. If he was able to establish his case of the specific performance against the defendant No. 1, it would be enough if the defendant No.2 is a party because the only decree to be passed in the suit for specific performance against a subsequent transfer would be to ask him to join with the defendant No.1. In that sense, it was not necessary at all for the plaintiff to ask any such declaration as he did. It would have been enough for the plaintiff to have joined defendant No.2 only as a party and to contend that the subsequent sale-deed was not binding on him. The argument that the declaration asked against the defendant No.2 was barred by time and no such amendment could have been permitted by the trial Court, has, therefore, to be rejected.
It is contended that by words "title arising" the section requires that where such specific performance is to be enforced against a subsequent transferee, then it is not sufficient merely to show that the sale-deed is after the agreement in between the original plaintiff and the defendant No.1, but it will also have to be shown that there was no prior agreement in between the defendant No.1 and the defendant No.2. The argument is obviously incorrect and has to be mentioned only to be rejected. After all, the burden of proof to claim an exemption under Section 19(1)(b) lies upon the subsequent transferee and it is the subsequent transferee who has to plead the essential fact that he is not a person whose title has arisen subsequently to the contract in question. If the Court sees the written statement of the defendant No.2 such contentions are conspicuously absent. The defendant No.1 has also merely suggested in his written statement that he had sold the property on 11.5.1984 without mentioning any prior agreement between him and the defendant No, 2. Under such circumstances, it would be travesty to expect the plaintiff to come out with a negative plea that there was no agreement prior to the contract in question in between the defendant No. 1 and defendant No.2. Such cannot be the situation. It is also to be remembered in this behalf that there is no ground raised in this behalf either before the lower Appellate Court or the High Court.
2. Shortly stated the plaintiff's case is that he agreed to purchase the house of defendant No. 1 for a total consideration of Rs. 20,000/- by way of an agreement which was executed by defendant No. 1 for that purpose on 22-12-1983. Rs. 5000/- were paid as the earnest money and the registered sale-deed was to be executed within six months. It is claimed that thereafter the plaintiff had approached the defendant No. 1 for a sale-deed, showing his willingness to pay Rs. 15,000/-. However, the defendant No. 1 did not pay heed to it. The plaintiff also pleaded that in pursuance of the agreement, he had attended the office of the Sub-Registrar for getting the sale-deed executed, but the defendant No. 1 failed to appear. He, therefore, issued a legal notice immediately thereafter, but to no effect. He, therefore, also got a legal notice published in a local Daily on 16-7-1984 and also issued a telegraphic notice, but again there was no response from the defendant No. 1 and, hence on these allegations, he filed the suit for specific performance.
3. Initially, the defendant No. 2 was not made a party but during the pendency of the suit, firstly, the defendant No. 2 was joined as a party as it is claimed that the plaintiff had come to know about a sale having been made in his favour of the suit house by the defendant No. 1 on 11-5-1984 itself. Though the defendant No. 2, on the basis of the subsequent sale to him was joined as a party in the month of February, 1985, an amendment was made to the plaint only on 1-8-1988 bringing to the Court's notice the subsequent sale dated 11-5-1984 by defendant No. 1 in favour of defendant No. 2 as also claiming the relief against defendant No. 2 also.
4. The defence of the defendants was very haphazard. The defendant No. 1 claimed that the agreement in question dated 22-12-1983 (Exhibit 57) was a bogus document. He, therefore, denied the execution thereof. He denied the transaction as a whole and disclosed that he had already sold the plot and the house in question to the defendant. No. 2 on 11-5-1984 for Rs. 35,000 by executing a registered sale-deed in his favour. He claimed that he had put his signature Exhibit 57 as a witness and that was a blank paper. In short, the defendant No. 1 denied the transaction at all.
5. The defence of defendant No. 2 was also no better. He pointed out that when he inquired about the title from the plaintiff, he was told that the plaintiff had no interest in purchasing the suit house. He also claimed the agreement to be a forged document.
6. The parties went to the trial on the basis of these pleadings. On the basis of the oral and documentary evidence lead before it by the parties, the trial Court came to the conclusion that the factum of the agreement dated 22-12-1983 was proved. It also held that on the basis of that agreement since the plaintiff had been and was willing to perform his part of the contract, he was entitled to the specific performance of the contract as prayed by him. The contention of the defendant No. 1 that his signature was obtained by fraud, representing to be a loan transaction, was negatived. It was also held that the defendant No. 2 was not a purchaser of the suit property for value without notice. In that view of the matter, the suit was decreed b
