Back
2020 Supreme(Pat) 34
IN THE HIGH COURT OF JUDICATURE AT PATNA
Aditya Kumar Trivedi, J.
Ambika Singh (since Deceased) - Appellant
Versus
Mosomat Sohagi Devi (since Deceased) - Respondent
First Appeal No. 96 of 1991
Decided On : 04-03-2020
J.S. Arora, Advocate, Prabhat Ranjan Singh, Advocate, Kumar Shashank, Advocate, Prabeen Kumar Singh, Advocate, Kamal Nayan Choubey, Advocate, Achal Kumar Singh, Advocate, Amarendra Kumar, Advocate
Headnote:
Code of Civil Procedure, 1908 – Order XLI rule 22 read with rule 33 – Filing of cross-objection, after 1976 Amendment is purely optional and not mandatory – Defendant in an appeal can, without filing cross-objections attack an adverse finding upon which a decree in part has been passed against him, for the purpose of sustaining decree to the extent lower court had dismissed suit against defendant-respondent. (Para 17)
Specific Relief Act, 1963 – Sections 16(c) and 22 – Agreement to sale – Suit for specific performance – Instead of granting main relief so sought for relating to directing respondent/defendant to execute sale deed in pursuance of an agreement after receiving balance consideration amount, court below allowed suit and passed money decree of Rs.10,000/- against defendant no.1/respondent no.1,on contest with costs acknowledging an alternative relief – In a suit for specific performance, plaintiff is under obligation to substantiate his willingness as well as readiness – As Baibeyana happens to be unregistered, so there was no occasion for extra expenses – As such, procurement of money from third person has got bearing, which in facts and circumstances would have been explained – In likewise manner, presence of Rs.13,000/-, residuary amount, which should also been seen in background of fact that during trial no prayer has been made to deposit the amount – It was incumbent upon plaintiff/appellant to lead positive evidence at his end in order to satisfy ingredients of readiness and willingness by way of positive/concrete evidence that he was in possession of Rs.13,000/-, remaining amount – Deficiency at end of appellant/plaintiff in substantiating his willingness and readiness did not provide any kind of opportunity to pervert judgment impugned – Appeal dismissed on contest. (Paras 29, 30 and 32)
AIR 1954 SC 75 ; AIR 1971 SC 1238 ; AIR 1999 SC 1747 ; AIR 2000 SC 2408 ; 1995 Supp. (4) SCC 542 ; AIR 1999 SC 1747 ; 2013)15 SCC 27 – Referred.
AIR 2003 SC 1989; AIR 1999 SC 3571; AIR 2018 SC 5098; AIR 2019 SC 1178; AIR 2019 SC 3013; AIR 2019 SC 4796; 1969 BLJR 134 – Relied.
JUDGMENT
Aditya Kumar Trivedi, J. - The Appellant/Plaintiff being aggrieved and dissatisfied with the judgment dated 21.09.1990 and decree dated 06.11.1990 passed by the learned Sub-Judge-II, Jamui (Munger) in Title Suit No.46 of 1986, whereby and whereunder instead of granting the main relief so sought for relating to directing the respondent/defendant to execute sale deed in pursuance of an agreement dated 15.06.1986 after receiving the balance consideration amount, the court below allowed the suit and passed a money decree of Rs.10,000/- against defendant no.1/respondent no.1, Most. Sohagi Devi on contest with costs acknowledging an alternative relief. Consequent thereupon, directed the defendant no.1/respondent no.1 to pay Rs.10,000/- to the plaintiff within 90 days of the judgment, failing which the plaintiff/appellant was allowed to realize the same through the process of the court at the expense of defendant no.1/respondent no.1, Most. Sohagi Devi. Furthermore, Pleader's fee of Rs.16/- and Pleader's Clerk fee of Rs.2/- has only been allowed.
2. In order to appreciate, the parties status as per plaint is being acknowledged herein.
3. The plaintiff filed Title Suit No.46 of 1986 asking for following reliefs:
(a) A decree for specific performance of contract be passed in favour of the plaintiff against the defendants.
(b) The defendants be directed to execute a registered sale deed with respect to the suit house in favour of the plaintiff within a reasonable time specified by the court.
(c) If the defendants fail to comply the direction of the court, the court be pleased to execute the sale deed in favour of the plaintiff on behalf of the defendants.
(d) The plaintiff be directed to deposit the rest of the consideration amount Rs.13,000/- in the court in favour of the defendants.
(e) In the alternative it is prayed that if any decree for specific performance of contract is not passed in favour of the plaintiff, then a money decree of Rs.10,000/- be passed and the same be recovered from the defendants. It be declared by the courts that the sale deeds in favour of the defendant no.2 and 3 are not binding to the plaintiff.
(f) All costs of the suit be awarded to the plaintiff.
(g) Any other relief or reliefs for which the plaintiff is found entitled by the court be also awarded in favour of the plaintiff.
4. In order to poise the reliefs, it has been pleaded that after coming in urgent need of money, Most. Sohagi Devi (since deceased) floated her intention to sell her property along with a house standing thereupon lying at Mohalla- Krishna Patti bearing R.S.P. No. 50 corresponding to Khata No.15, area 5 decimals which she was inherited after death of her husband Pati Tanti and, after finalisation of the negotiation at a consideration amount of Rs.23,000/-, demanded money and further disclosed that for the present she was not in a position to execute the sale deed as she was to rush to medical treatment. Whereupon, she volunteered to execute the deed of Baibayana after receiving Rs.10,000/- as an earnest money out of total consideration amount of Rs.23,000/- which the plaintiff accepted in spite of the fact that he was in possession of total consideration amount. Thus after receiving Rs.10,000/- as an earnest money Sohagi Devi executed Baibayana on the same day i.e. on 15.06.1986 and, delivered physical possession to the plaintiff over the suit land wherein one of the relatives of the plaintiff is residing. Furthermore, she had assured at that very moment that within two months she will execute sale deed after receiving the remaining consideration amount. In spite of due diligence at the end of the plaintiff repeatedly contacting requesting Sohagi Devi to accept the remaining consideration amount and execute the sale deed with respect to the suit land, aforesaid Sohagi Devi began to defer the matter on one pretext or the other.
It has further been submitted that aforesaid Sohagi Devi with mala-fide intention got a fraudulent, s
