2018 Supreme(Sikk) 46

IN THE HIGH COURT OF SIKKIM, GANGTOK
BHASKAR RAJ PRADHAN, J.
Shri Mahesh Kumar Trivedi, Son of late Pandit Ramagya Trivedi – Appellant
Versus
Kamala Prasad – Respondent
R.F.A. No. 02 of 2014 With C.O. No.02 of 2015
Decided on : 04-09-2018

Headnote:

The suit for specific performance of an agreement to sell was not maintainable as the Appellant failed to prove that he was ready and willing to perform the essential terms of the agreement, which were to be performed by him, other than terms the performance of which had been prevented or waived by the Defendant. The Appellant was not entitled to specific performance of the agreement as the readiness and willingness of the Appellant was conditional and therefore in terms of Section 16(c) of the Specific Relief Act, 1963, specific performance of Exhibit-1 could not be granted in favour of the Appellant. The Appellant was not entitled to a decree of specific performance of the contract of sale of the schedule ‘A’ property in his favour. The suit as framed was not maintainable. The Appellant was not entitled to any relief or the relief prayed for. The Respondents were also not entitled to any relief or the relief prayed for.

Fact of the Case:

The Appellant filed a suit for specific performance of a contract and consequential reliefs. The Appellant claimed the reliefs prayed for in the plaint based Exhibit-1 dated 02.11.1999 only. During the hearing a question was raised by this Court as to whether the suit was maintainable and whether the Appellant was entitled to specific performance of Exhibit-1 in view of the specific pleadings made by the Appellant in the plaint and specifically paragraph 4 thereof as it suggest that the readiness and willingness to perform the essential terms of Exhibit-1 which are to be performed by the Appellant was conditional. Mr. A. K. Upadhyaya would contend that this was a plea not taken by the Respondents and therefore it was not permissible for this Court to examine it. This submission of the learned Counsel is not tenable on the face of the provision under which the Appellant has preferred the present Appeal. The Appeal preferred by the Appellant is under Order XLI, Rules 1 and 2 of the CPC. The said Order XLI, Rule 2 of the CPC provides: 2. Grounds which may be taken in appeal.- The appellant shall not, except by leave of the court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the Appellate Court, in deciding the appeal, shall not be confined to the grounds of objection set forth in the memorandum of appeal or taken by leave of the court under this rule: Provided that the court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground.

Finding of the Court:

The Appellant was not entitled to specific performance of the agreement as the readiness and willingness of the Appellant was conditional and therefore in terms of Section 16(c) of the Specific Relief Act, 1963, specific performance of Exhibit-1 could not be granted in favour of the Appellant. The Appellant was not entitled to a decree of specific performance of the contract of sale of the schedule ‘A’ property in his favour. The suit as framed was not maintainable. The Appellant was not entitled to any relief or the relief prayed for. The Respondents were also not entitled to any relief or the relief prayed for.

Issues: 1. Whether the suit is maintainable in its present form? 2. Whether the suit is barred by law of Limitation? 3. Whether the plaintiff is entitled to decree of specific performance of the contract of sale of the schedule ‘A’ property in his favour? 4. Whether the plaintiff is liable to be evicted as prayed for by the defendant? 5. To what relief or reliefs, if any, is the plaintiff entitled? 6. Whether the plaintiff is a tenant in the suit property? If so, whether the plaintiff is liable to pay the arrear house rent as claimed by the defendant? 7. Whether the document dated 2.11.1999 executed by the defendant in favour or the plaintiff is a valid document and enforceable in law? 8. To what relief or reliefs the defendant is entitled?

Ratio Decidendi: The Appellant failed to prove that he was ready and willing to perform the essential terms of the agreement, which were to be performed by him, other than terms the performance of which had been prevented or waived by the Defendant.

Final Decision: Appeal as well as the cross-objection is decided and dismissed.