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2008 Supreme(All) 948
[2008(6) ADJ 536]
ALLAHABAD HIGH COURT
BEFORE : MRS. POONAM SRIVASTAVA, J.
SHAMBHU PRASAD ........Appellant
Versus
Smt. SHAMIM JAHAN ............Respondent
(Second Appeal No. 631 of 2007, decided on 18th April, 2008)
Counsel :
H.N. Singh and B. Narayan Singh for the Appellant; N.D. Shukla and Rajeev Mishra for the Respondent.
Headnote:Specific Relief Act, 1963—Sections 16(c), 14 and 20—Code of Civil Procedure, 1908—Section 100 and Order XLI, Rules 24 and 25—Contract Act, 1872—Sections 39, 48, 51, 52 and 55—Suit for specific performance of contract and agreement to sell—Readiness and willingness and burden of proof—Lower appellate Court framed fresh issue “whether terms of contract was violated, if yes, its effects on contesting parties”—There was no ambiguity in sale-deed—But a clear terms in sale-deed that it is to be executed by 30.4.1992 (within 6 months)—Failing which vendee at liberty to deposit balance money in Court—And to get sale-deed executed in her favour—Dispute arose only when suit was instituted by plaintiff-respondent after lapse of more than two years of stipulated date—And stand taken by defendant-appellant in his written statement that since no effort was made by plaintiff to get sale-deed executed, or pay balance amount, there was no inclination expressed by plaintiff to pay money, or get sale-deed executed—Held, illegality committed by lower appellate Court while deciding issue (i.e. newly framed by it) of violation of contract, without permitting parties to lead evidence—Findings on question of willingness and readiness, as well as burden of proof was perverse—Substantial question of law materially affected rights of defendant-appellant—Thus, impugned judgment quashed and set aside—However, plaintiff-respondent entitled to recover double amount of earnest money. [Paras 10, 14, 16 to 21]
Hon’ble Mrs. Poonam Srivastava, J.—This second appeal is listed for admission. Record was summoned at the time when the appeal was filed and both the Counsels are agreed that this appeal may be decided at the stage of admission itself.
2. Sri H.N. Singh Advocate appears for the defendant-appellant and Sri Rajeev Mishra Advocate for the plaintiff-respondent.
3. The facts giving rise to the dispute are that an agreement to sell in respect of plot No. 15 having an area 1 bigha, 18 biswa and 12 dhoor was executed in favour of the plaintiff-respondent for a consideration of Rs. 1,17,000/- on 4.9.1991. The earnest money paid was Rs. 15,000/-. There was a specific recital in the agreement that since the plaintiff-respondent was not in possession of the entire sale consideration, the sale-deed will be executed by 30.4.1992 after payment of the remaining amount of Rs. 1,02,000/-. It was further agreed that in the event, either party fails to perform its part within the stipulated period, then the plaintiff will be entitled to deposit the remaining money i.e. Rs. 1,02,000/- in the Court and get the sale-deed executed which will not be objected by the defendant-appellant. It was further agreed that the possession will be handed over after execution of the sale-deed. The plaintiff-respondent instituted Original Suit No. 118 of 1994 on 3.9.1994 for specific performance. The assertion in the plaint was that a notice for executing the sale-deed was given by the plaintiff on 2.8.1994 by registered post asking the defendant-appellant to execute the sale-deed after payment of balance consideration of Rs.1,02,000/- on 25.8.1994 in the Registrar office. The defendant failed to comply with the notice hence the suit was instituted. The defendant-appellant filed his written statement. The execution of the agreement to sell on 4.9.1991 was admitted. It was also admitted that the time frame for getting the sale-deed executed was 30.4.1992 but since the plaintiff was not willing to get the sale-deed executed within the time frame, she cannot get the relief claimed and the defendant cannot be compelled to execute the sale-deed. Additional plea taken by the defendant was that he was in need of money at the relevant time when the agreement was entered into as he was negotiating to purchase another land but since he did not have enough money, he offered his land to sell which was adjacent to the land of the plaintiff. He had borrowed Rs. 15,000/-, the date in the agreement to sell was 30.4.1992 but the plaintiff failed to get the sale-deed executed. Whenever the defendant approached her, she was short of funds and, therefore, the sale-deed could not be executed. The notice given on 2.8.1994 was much beyond time i.e. two years and four months and, therefore, the plaintiff was not entitled to the relief claimed in the plaint. The trial Court framed as many as five issues and finally decreed the suit by judgment and decree dated 4.9.1998. The appellant preferred first appeal No. 17 of 1999 in the Court of District Judge, Bhadohi at Gyanpur. The lower appellate Court framed additional issue No. 6 which reads as under :
“Issue No. 6: Whether the terms of the contract was violated, if yes, its effect on the contesting parties ?”
4. After framing the issue, an order was passed on 4.4.2001 directing the parties to lead evidence since the matter relates to the year 1994, there is no necessity to send the matter back to the trial Court. The burden is that of the defendant-appellant, he may lead evidence and thereafter the plaintiff-respondent can also lead evidence. The date fixed for evidence was 5.5.2001. The order dated 4.4.2001 was challenged in this Court in Writ Petition No. 21083 of 2001-Shambhu Prasad v. 1st Additional District Judge, Bhadohi and others, which was dismissed on 25.5.2001. The said order is quoted below :
“This writ petition is directed against the order dated 4.4.2001 whereby the Court partly allowed the application to frame additional iss
