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1992 Supreme(All) 850
IN THE HIGH COURT OF ALLAHABAD
N.L. Ganguly, B.L. Yadav, JJ.
Someshwar Nath Bhargava - Appellant
Vs.
Smt. Kusum Kumari (Since Deceased) By Her L.Rs. - Respondent
First Appeal No's. 148 and 172 of 1983 and Civil Revision No. 787 of 1990
Decided On : 07-05-1992
For the Appellant : Keshari Nath Tripathi
For the Respondent: Ajit Kumar
The suit for specific performance of contract was within time as it was filed within three years from the date of knowledge of refusal by the Defendant in the first suit to perform her part of the contract.
Headnote:
SPECIFIC PERFORMANCE OF CONTRACT - SUIT FOR - LIMITATION - ARTICLE 54 OF LIMITATION ACT, 1963 - INTERPRETATION - COMMENCEMENT OF LIMITATION - READINESS AND WILLINGNESS OF PLAINTIFF TO PERFORM PART OF CONTRACT - SECTION 16-C OF SPECIFIC RELIEF ACT, 1963 - INTERPRETATION - DEFICIENCY IN COURT FEE - SECTION 149 OF CODE OF CIVIL PROCEDURE, 1908 - INTERPRETATION - JOINT HINDU FAMILY PROPERTY - SELF ACQUIRED PROPERTY - DISTINCTION - RELIEF FOR POSSESSION - ADDITION IN EXECUTION PROCEEDINGS - ORDER 6 RULE 17 OF CODE OF CIVIL PROCEDURE, 1908 - APPLICABILITY - FRAUD, MISREPRESENTATION, COERCION - PARTICULARS AND DETAILS - ORDER 6 RULE 4 OF CODE OF CIVIL PROCEDURE, 1908 - APPLICABILITY.
Fact of the Case:
Plaintiff filed a suit for specific performance of an agreement for sale of land against the Defendant. The Defendant contested the suit contending that the agreement was obtained by misrepresentation, coercion and perpetrating fraud and the said transaction was void and not enforceable in law. The property in suit was Joint Hindu Family property acquired out of joint Hindu Family nucleus and his sons had interest in the property in question and the Defendant had informed the Plaintiff about this fact. As other members of the Joint Hindu Family, particularly his sons, Plaintiffs in the second suit, had not entered into agreement nor had signed agreement for sale hence the same was not enforceable in law. The property in suit being Nazul land there could be no agreement for sale without permission of the District Magistrate. The Plaintiff Respondent in the first suit did not aver or prove that she was ready and willing to perform her part of the contract hence suit was barred by Section 16-C of Specific Relief Act, 1963. The agreement was unfair and illegal and not enforceable. The suit was bad for non-joinder of necessary parties i.e. Plaintiffs of second suit The suit was barred by time and was not maintainable in the absence of exemption from ceiling under the provisions of Urban Land Ceiling and Regulation Act 1976.
Finding of the Court:
The court held that the suit was within time as it was filed within three years from the date of knowledge of refusal by the Defendant in the first suit to perform her part of the contract. It is to be noticed that no date of refusal was given by the Defendant in the first suit and Plaintiffs in the second suit. Last clause of Article 54 of the Act was relevant to be interpreted and the cardinal principles of interpretation pertaining to the counting of the limitation was that it is to be liberally construed so that the cause of action for suit may remain alive unless the word employed indicate otherwise. In any case, in the written statement the Defendant in the first suit, and the Plaintiffs in the second suit, did not plead specific facts necessary to prove that the suit was barred by time. Time was not essence of the contract even if it was mentioned in the agreement for sale. The suit was not barred by Sections 14 and 16-C of Specific Relief Act in as much as Plaintiff in the first suit specifically stated in para 10 of the plaint that she was ready and willing to perform her part of the contract but Defendant in the first suit has just denied in para 10 of the written statement and only this much was stated that the Plaintiff had failed to perform her part of the contract and is not entitled to any relief. It is to be noticed that the readiness and willingness of the Plaintiff as envisaged by Section 16-C of Specific Relief Act was not denied in the written statement hence it would be deemed to have been admitted in view of Order 8 Rule 5 of the Code, specially when second notice was also sent, by the Plaintiff of the first suit, to the Defendant of the first suit consistent with the CPC Form No. 47 and 48. The land in dispute was self acquired property of Someshwarnath Bhargava and it was not acquired with the nucleus of joint Hindu family. The land in suit was purchased by Someshwarnath Bhargava along with Radhakant on 18-11-63 and in that sale deed it was not stated that Someshwarnath Bhargava was purchasing it from the Joint Hindu Family nucleus nor in the agreement for sale dated 24-2-72 it was stated that land in suit was acquired with the Joint Hindu Family nucleus. The plaint was filed on 17-1-78 (vide page 38 of the paper book) and deficiency in the court fee was made good on 20-1-78 on the report of Munsarim even before the order of the court and the suit was treated to have been filed on 17-1-78 u/s 149 of the Code even if the court fee was not paid within time the court in its discretion, at any stage allow the Plaintiff to make the deficiency good in the court fee either in whole or in part and upon such payment it would date back to the date of presentation and such plaint would have same force and effect as if the court fee has been paid in the first instance, hence this section could not be said to be a proviso to Section 6 of the Court fees Act and even if there was some deficiency in court fee the same could have been made good by the order of the Court u/s 149 of the Code. Oral evidence has correctly been considered and even if two views were possible, the appellate court would have no justification to reappreciate the oral evidence as the trial court has occasion to see the demeanour of the witnesses. The agreement for sale executed by the Defendant of the first suit in favour of Plaintiff of the first suit cannot be said to be fraudulent, nor the same could be said to have been obtained by misrepresentation or coercion etc.
Issues: 1. Whether the suit was barred by time? 2. Whether the suit was barred by Sections 14 and 16-C of the Specific Relief Act? 3. Whether the deficiency made good without the order of the court would enure for the benefit of Plaintiff-Respondent in the first suit? 4. Whether Section 149 of the Code was like a proviso to Section 6 of the Court Fees Act as amended in U.P.? 5. Whether the details of fraud etc have been given in the written statement by the Defendants of the first suit as required by Order 6 Rule 4, if not its result? 6. Whether the property in dispute was Joint Hindu Family Property or self acquired property of Someshwar Nath Bhargava, the Defendant in the first suit, and in case it was Joint Hindu Family Property can deft in the first suit make an agreement for sale without the occurrence of other coparceners; and 7. Whether the findings recorded by the trial court of correct?
Ratio Decidendi: 1. The suit was within time as it was filed within three years from the date of knowledge of refusal by the Defendant in the first suit to perform her part of the contract. 2. The suit was not barred by Sections 14 and 16-C of the Specific Relief Act as the Plaintiff in the first suit specifically stated in para 10 of the plaint that she was ready and willing to perform her part of the contract but Defendant in the first suit has just denied in para 10 of the written statement and only this much was stated that the Plaintiff had failed to perform her part of the contract and is not entitled to any relief. 3. The deficiency made good without the order of the court would enure for the benefit of Plaintiff-Respondent in the first suit as Section 149 of the Code was like a proviso to Section 6 of the Court Fees Act as amended in U.P. 4. The details of fraud etc have been given in the written statement by the Defendants of the first suit as required by Order 6 Rule 4, hence the suit was not barred by fraud. 5. The property in dispute was self acquired property of Someshwar Nath Bhargava, the Defendant in the first suit, and in case it was Joint Hindu Family Property can deft in the first suit make an agreement for sale without the occurrence of other coparceners. 6. The findings recorded by the trial court were correct.
Final Decision: Both the appeals and revision are dismissed.
B.L. Yadav, J.
These analogous Appeals and Civil Revision involve similar questions for determination, hence it is convenient to dispose them of by a common judgment.
2. Defendant's First Appeal No. 172 of 1983 arises out of Original suit No. 17 of 1977 (for short first suit). Plaintiff's First Appeal No. 148 of 1983 arises out of Original suit No. 19 of 1982 (for short second suit). This second suit was filed for declaration that Plaintiffs were co-owners of the land in dispute along with Someshwar Nath Bhargava, the Defendant No. 1. First Appeal No. 172 of 1983 would, however, be the leading appeal.
3. Both the appeals have been filed against the common decree dated 3rd January 1983, pissed by the Addl. Civil Judge, Allahabad, decreeing the first suit filed by Smt. Kusum Kumari and dismissing the second suit filed by Parmeshwar Nath. The first suit was filed by Smt. Kusum Kumari against Someshwar Nath Bhargava, for specific performance of the agreement for sale dated 24-2-1977 with the allegations that Defendant Appellant agreed to sell western portion of No. 12 (New No. 16) Mayo Road Allahabad, to the Plaintiff Respondent for a consideration of Rs. 99889/- out of which a sum of Rs. 5000/- was paid in cash to the detendant as part payments of sale consideration and balance was agreed to be paid at the time of registration of the sale deed and the Defendant stated in the agreement that he has purchased the property in question by a sale deed dated 13-11-63 along with Radhakant and Ramendranath Bose and there has been oral partition between Someshwarnath Bhargava and Radhakant Bhargava and that the Defendant in the first suit is in possession of separate portion in respect of which he has agreed to execute the sale deed. As the land was not yielding any income rather lying vacant and the Plaintiff offered the highest price hence he agreed to execute the agreement for sale and later on he would execute sale deed within 2 months from the date the name of the Defendant in the first suit was mutated over the said property. Before that he would satisfy the Plaintiff in the first suit, about his right to transfer. The mutation was effected in the name of the Defendant Appellant in the first suit on 20-11-73 nevertheless he did not inform the Plaintiff about his name being mutated. Immediately after coming to know about the order of mutation in favour of Defendant Appellant in the first suit, notice was sent to the Defendant on 26-11-76 to the effect that Plaintiff was ready and willing to perform her part of the contract and the Plaintiff was ready to pay balance of the sale consideration and Defendant was directed to execute the sale deed but after receipt of the said notice the Defendant furnished incorrect information and replied incorrectly Then second notice was given directing the Defendant Appellant to perform his part of the contract. Inspite of service of the second notice the Defendant Appellant did not execute the sale deed, as agreed upon, hence the Plaintiff had no option but to file the suit for specific performance of the agreement for sale.
4. The Defendant Appellant, in the first suit, contested it with the averments that the agreement for sale dated 24-2-72 was obtained by the Plaintiff Respondent by misrepresentation, coersion and perpetuating fraud and the -said transaction was void and not enforceable in law. The property in suit was Joint Hindu Family property acquired out of joint Hindu Family nucleus and his sons had interest in the property in question and the Defendant had informed the Plaintiff about this fact. As other members of the Joint Hindu Family, particularly his sons, Plaintiffs in the second suit, had not entered into agreement nor had signed agreement for sale hence the same was not enforceable in law. The property in suit being Nazul land there could be no agreement for sale without p
