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2013 Supreme(Bom) 1918
HIGH COURT OF JUDICATURE AT BOMBAY
R.G. KETKAR, J.
Parshram Tanaji Aher & Others
Versus
Dattu Kadu Aher & Another
Second Appeal No.296 of 1989
Decided on: 24-09-2013
Advocate Appeared:
For the Appellants:S.M. Gorwadkar, Advocate.
For the Respondents:Sandeep Shinde, Advocate.
Headnote:Civil Procedure Code, 1908 - Order VI, Rule 17 - Amendment of plaint. - An amendment in plaint once incorporated, relates back to date of suit, however doctrine of relation back in context of amendment of pleadings is not one of universal application. - Amendment once incorporated relates back to the date of the suit. However, the doctrine of relation back in the context of amendment of pleadings is not one of universal application and in appropriate cases the Court is competent, while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the Court on the date on which the application seeking the amendment was filed.
Contract Act, 1872 - Sections 16 and 20 - Civil Procedure Code, Schedule I, Forms-47 and 48 - Specific performance of agreement. - Continuous readiness and willingness on part of plaintiff is a condition precedent to grant relief of specific performance of agreement. - The remedy for specific performance is an equitable remedy and is in the discretion of the Court, which discretion is required to be exercised according to settled principles of law and not arbitrarily. Under Section 20, the Court is not bound to grant the relief just because there was valid agreement of sale.
Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance.
1. Heard Mr. S. M. Gorwadkar, learned counsel for the Appellants and Mr. S. K. Shinde, learned counsel for the Respondents, at length.
2. By this Appeal under Section 100 of the Code of Civil Procedure, 1908, (for short C.P.C.), the original Defendants No.1-A to 1-H have challenged the judgment and decree dated 5-10-1985 passed by the Learned Civil Judge Junior Division, Chandwad in Regular Civil Suit No.96 of 1975 as also the Judgment and Decree dated 12-9-1988 passed by the Learned III Additional District Judge, Nashik in Civil Appeal No.46 of 1986. By these orders, the courts below decreed the suit instituted by Respondent No.1-Plaintiff for specific performance of contract dated 30-12-1968. The parties shall, herein after be referred as per their status in the trial court. The facts and circumstances, giving rise to the filing of the present Second Appeal briefly stated, are as under:
3. Respondent No.1 (original Plaintiff) instituted the suit initially for redemption of mortgage. The controversy in this Appeal is in respect of land which previously was bearing CTS No.96/5 measuring 32 Gunthas assessed at Rs.1.69 ps. and subsequently merged in the lands of Appellants (Defendants No.1A to 1H) and formed block No.294 which together measures at 1 Acre and 37 gunthas (for short 'suit land'). It was the case of the Plaintiff that on 21-8-1968 (exhibit 46) he had mortgaged the suit land to defendant No.2 i.e. Pundalik. The document was however styled as a sale deed and consideration of Rs.2000/- was shown. It is the case of the Plaintiff that he had received Rs.1500/-. The said document was executed by way of security for repayment of the loan. The Plaintiff needed Rs.1000/- more, so he demanded Rs.1000/- from Defendant No.2. Defendant No.2 did not have that much amount and on the contrary he demanded Rs.1500/- paid to the Plaintiff under Exhibit 46. The Plaintiff approached Defendant No.1, since deceased who paid Rs.2500/- and document dated 30-12-1968 Exhibit 45 was executed. Though this document was styled as sale deed, the said document was executed by way of security only. Under that document possession was delivered to Defendant No.1. At that time Defendant No.1 agreed to execute a separate document about reconveyance of the suit land to the Plaintiff. Accordingly Defendant No.1 executed a receipt on 30-12-1968 (exhibit 40). The Plaintiff issued notice on 14-11-1975 to Defendant No.1 for redemption of mortgage. It was alleged that defendant No.1 had executed a receipt on 30-12-1968 and agreed to sell the suit land to the Plaintiff upon paying Rs.2500/-. Defendant No.1 gave reply on 21-2-1975. On 8-12-1975 the Plaintiff instituted the suit for redemption of mortgage. It was alleged by him that the sale deed dated 30-12-1968 was in fact a mortgage with conditional sale. It was further alleged that the document even though styled as a sale deed, in reality, it was agreed between the parties that the Defendant No.1 would take agricultural produce in lieu of interest and after return of Rs.2500/-, would convey the suit land to the Plaintiff.
4. The Plaintiff filed application on 17-8-1982 for amendment of the plaint. By that amendment the plaintiff sought specific performance of the contract dated 30-12-1968. By judgment and order dated 20-9-1982 the Trial Court rejected that application. Aggrieved by that decision, the plaintiff instituted Civil Revision Application No. 714 of 1982 in this court. By judgment and order dated 2-2-1984 this court allowed the civil revision application thereby permitting the plaintiff to amend the plaint.
5. Original Defendant No.1 Tanaji filed Written Statement on 24-8-1976 and additional written statement on 31-8-1984. It was inter-alia contended that the transaction dated 21-8-1968 (Exhibit 46) between the Plaintiff and Defendant No.2 was an out and out sale and not a transaction of mortgage as alleged by the Plaintiff. Defendant No.1 further contended that one Babulal had obtained his
