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IN THE HIGH COURT OF ALLAHABAD
J.J. MUNIR, J.
Paras Nath - Appellant
Versus
Vishwanath - Respondents
Second Appeal No.1711 of 1991
Decided on : 24-08-2020
Specific Relief Act – Section 16 – Execution of the agreement to sell – Original Suit was instituted in the Court of the City Munsif, Jaunpur by Parasnath and Smt. Sitawi against Vishwanath. – They claimed specific performance of a registered agreement to sell dated 8th March, 1984, executed in favour of the two plaintiffs aforesaid by Vishwanath, the sole defendant. – Agreement is about the covenanted sale of an unpartitioned 1/3rd share in agricultural land admeasuring a total of six decimals. – The land aforesaid, at the time of execution of the agreement to sell, bore Plot No. 851. – During consolidation operations, the plot has been renumbered as 791 with no change to its identity, areas or boundaries. – Land, subject matter of agreement, is located at Mauja Deepakpur, Pargana Garhvara, Teshil Machhlishahar, District Jaunpur. One-third unpartitioned share in Plot No. 791, last mentioned, subject matter of agreement to sell dated 08.03.1984 between parties, is hereinafter referred to as ‘the suit property’. – The suit property shall, however, be referred to, about its details mentioned in the plaint, by its full particulars and boundaries, in schedule ‘Aa’ and ‘Ba’ while setting forth the parties’ case. – Original plaintiffs, who are the two appellants here, died pending appeal. –
Finding of the Court:
It is an accepted principle that an amendment once granted, relates back to the date of commencement of action or whenever the amending pleading was initially put in, depending on the nature of the amendment or the cause that has necessitated it. – That is what the principle governing pleadings and amendments to the pleadings say. – But, here the issue before the Court is about the statutory requirements of readiness and willingness that the plaintiffs must prove without blemish, in order to entitle them to specific performance. – Amendment, though technically relates back to the time when the suit was instituted but, what this Court has already said in much detail, the point in time when it has been made and the manner in which it has been sought, besides the terms of the amendment, clearly show it to be a clever manoeuvre of the plaintiffs. Specific performance requires the plaintiffs to show bona fides vis-a-vis their claim from the date of the contract and throughout trial of the action. – Any manoeuvre or a shifting stand like the one that this case presents, undoubtedly excludes bona fides of the plaintiffs, dis-entitling them to specific performance – Court, therefore, answer substantial question No. (iii) in the affirmative, in the terms indicated in the body of this judgment. – Substantial question no. 1 (framed on 26.02.2020) is answered in the affirmative in terms that where the plaintiff fails to prove his singular case of accelerated payment of the sale consideration, it would be reasonable to infer his failure to establish readiness and willingness within the meaning of Section 16(c) of the Specific Relief Act. – Substantial question no. 2 (framed on 26.02.2020) is answered in the negative, in terms that an amendment to the plea regarding readiness and willingness granted at the appellate stage, if one that lacks bona fides on the plaintiff’s part, cannot be proved in accordance with the requirements of Section 16(c), Specific Relief Act. –
Result: Appeal Dismissed
JUDGMENT :
1. This is a plaintiffs’ second appeal arising from a suit for specific performance of contract.
2. Original Suit No. 305 of 1987 was instituted in the Court of the City Munsif, Jaunpur by Parasnath and Smt. Sitawi against Vishwanath. They claimed specific performance of a registered agreement to sell dated 8th March, 1984, executed in favour of the two plaintiffs aforesaid by Vishwanath, the sole defendant. The agreement is about the covenanted sale of an unpartitioned 1/3rd share in agricultural land admeasuring a total of six decimals. The land aforesaid, at the time of execution of the agreement to sell, bore Plot No. 851. During consolidation operations, the plot has been renumbered as 791 with no change to its identity, areas or boundaries. The land, subject matter of agreement, is located at Mauja Deepakpur, Pargana Garhvara, Teshil Machhlishahar, District Jaunpur. One-third unpartitioned share in Plot No. 791, last mentioned, subject matter of agreement to sell dated 08.03.1984 between parties, is hereinafter referred to as ‘the suit property’. The suit property shall, however, be referred to, about its details mentioned in the plaint, by its full particulars and boundaries, in schedule ‘Aa’ and ‘Ba’ while setting forth the parties’ case. The original plaintiffs, who are the two appellants here, died pending appeal. Both the plaintiff-appellants, which includes their respective heirs and legal representatives, shall be referred to hereinafter as ‘the plaintiffs’, except where an individual reference is made to either of them. Vishwanath, the sole defendant to the suit is the sole respondent to this appeal. He shall hereinafter be referred to as ‘the defendant’.
3. The plaintiffs brought this suit with assertions to the effect that property detailed in schedule Aa is a joint property of the defendant and his brothers numbering two, Bahadur and Jangali. The said property is a bhumidhari of the three brothers, held jointly in equal share, antedating the last Chakbandi. During the last Chakbandi, it was settled with the defendant and his two brothers. It is averred that in the property described in schedule Aa to the plaint, the defendant holds a 1/3rd share that works out to two decimals. The plaintiffs and the defendant negotiated terms where the plaintiffs settled with the defendant to purchase the suit property (1/3rd share in the land described in schedule Aa) for a sale consideration of Rs.6000/-. The defendant accepted the terms. In accordance with the terms settled between parties, the defendant executed the suit agreement in favour of the plaintiffs on 08.03.1984, agreeing to convey the suit property for a total sale consideration of Rs.6000/-in favour of the plaintiffs. The defendant received an earnest of Rs.2000/-at the time of execution of the suit agreement, leaving a residue of 4000/-that was agreed between parties to be payable at the time of execution of the sale deed. The suit agreement was registered as document No. 693 in Book No. 1, Volume No. 1187 and recorded at page Nos. 255-256 in the Office of the Sub Registrar. The suit agreement carried a covenant that a sale deed would be executed in favour of the plaintiffs within a period of three years of the date of execution of the agreement under reference.
4. The plaintiffs allege that the defendant asked them to pay varying sums of money out of the residue of Rs.4000/- payable towards the agreed sale consideration, at different points of time, which the plaintiffs paid. These part payments, according to the plaintiffs, aggregate to a sum of Rs.2500/-. This sum of Rs.2500/-, paid by the plaintiffs to the defendant, stands appropriated towards the agreed sale consideration which together with the earnest initially paid, left a residue of Rs.1500/-to be made good at the time of execution of the sale deed. It is then pleaded that in the ensuing Chakbandi, the property shown in schedule ‘Aa’ of which the suit property is a part, has been renumbered as
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