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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
J.J. Munir, J.
Babu Ram and Others - Appellants
Versus
Om Singh and Another – Respondents
Second Appeal No. 657 of 2003
Decided On : 14-03-2022
None
Fact of the Case:
The plaintiffs, Om Singh and Jay Bhagwan, instituted Original Suit No. 769 of 1998 before the Court of Civil Judge (Senior Division), Meerut on 20.08.1998, seeking a decree of specific performance, ordering the defendant-vendor to execute the requisite sale deed in terms of the suit agreement after receipt of the balance sale consideration. It was further prayed that in the event the defendant-vendor does not comply with the decree within the time provided by Court, sale deed be executed in favour of the plaintiff-vendees through process of Court in accordance with law and actual physical possession over the suit property be delivered to them.
Finding of the Court:
The Courts below, in the submission of the learned Counsel for the defendants, have failed to take into consideration the plaintiff-vendees' failure to prove their ‘readiness’ and ‘willingness’ throughout the aforesaid period of time. Instead, the Lower Appellate Court has returned a perverse finding that the suit can be filed even on the last date of limitation with a remark that people tend to avoid litigation. It is urged that the Lower Appellate Court has committed a manifest error of law in not appreciating the fact that ‘readiness’ and ‘willingness’ had to be established on the last day of limitation also.
Issues: 1. Whether the plaintiffs are entitled to get a sale deed executed in their favour on the basis of the disputed agreement to sell dated 15.06.1994 as pleaded in plaint? 2. Whether the disputed agreement was executed by Bhawar Singh in favour of the plaintiffs is without consideration as pleaded in paragraph no. 11 of the written statement bearing paper no. 18 ka-1, if yes, its effect on the suit? 3. Whether the disputed agreement to sell dated 15.06.1994 was got executed by the plaintiffs by defrauding the defendant, as pleaded in paragraph no. 13 of the written statement? 4. Whether defendant nos. 2 to 6 are bona fide purchasers for value without notice as pleaded in paragraph no. 18 of their written statement bearing paper no. 31 ka-1? 5. Relief, to which the plaintiffs are entitled? 6. Whether the suit is time barred? 7. Whether defendant no. 1 has exclusive right to the suit property? 8. Whether defendant nos. 2 to 6 in their capacity as the transferees of the disputed land have exclusive right to it, if yes, its effect?
Ratio Decidendi: The principle on which the answer to these questions would turn, given the way the parties have pleaded their case and led evidence on the issue of readiness and willingness, is that a substantial compliance with the requirement of proving readiness and willingness at the trial by the plaintiff in a suit for specific performance would not vitiate the decree for the mere failure of framing a specific issue; of course, this would be so where the parties had notice of the case about readiness and willingness and had opportunity to lead evidence about it, with no prejudice being occasioned to the defendants on account of the failure to specifically frame that issue.
Final Decision: In the result, this appeal fails and stands dismissed with costs throughout, to be borne equally between the defendant-vendor and the defendant-purchasers.
JUDGMENT :
1. This is a defendants' second appeal, arising out of a suit for specific performance of contract.
2. Om Singh and Jay Bhagwan, who are the two respondents to this appeal, instituted Original Suit No. 769 of 1998 against Bhawar Singh, Suresh Pal, Rajpal, Tejpal, Babu Ram and Jagpal, all of whom are the appellants here, seeking a decree for specific performance of contract. It was the plaintiffs’ case that defendant no. 1 to the suit, Bhawar Singh is the bhumidhar of agricultural land comprising plot no. 248(M) admeasuring 0.008 hectares, plot no. 250 admeasuring 0.010 hectares, plot no. 251(M) admeasuring 1.354 hectares, plot no. 252/1 admeasuring 0.086 hectares, plot no. 252/2 admeasuring 0.020 hectares and plot no. 253 admeasuring 0.089 hectares, aggregating an area of 1.567 hectares, situate at Village Harchandpur, Tehsil and District Baghpat. Out of the said plots, he had sold away on 15.06.1994, a substantial part in favour of the plaintiff-vendees, leaving a residue of 0.237 hectares. The defendant-vendor Bhawar Singh executed a registered agreement to sell, relating to the remainder of 0.237 hectares of land in the plots above detailed, in favour of plaintiff-vendees Om Singh and Jay Bhagwan, covenanting to sell the said property for a total sale consideration of Rs. 48000/-. Bhawar Singh received in earnest a sum of Rs. 5000/-out of the contracted sale consideration.
3. The agreement to sell was admitted to registration by the Sub-Registrar on 15.06.1994. It was covenanted that the conveyance in terms of the suit agreement shall be executed by Bhawar Singh (hereinafter referred to as the ‘defendant-vendor’) within a period of 1 year and 3 months, that is to say, by 15.09.1995. The plaintiffs, Om Singh and Jay Bhagwan pleaded that they have been ever ready and willing to get a conveyance executed and registered in accordance with the suit agreement and have never neglected to perform their part of the contract. Om Singh and Jay Bhagwan shall hereinafter be referred to as the ‘plaintiff-vendees’.
4. The plaintiff-vendees requested the defendant-vendor many a times over by word of mouth to come forward and execute the sale deed as covenanted after receipt of the balance sale consideration of Rs. 43,000/-, but the defendant-vendor would ward off responding to his obligation. The plaintiff-vendees, faced with inaction, caused a registered notice dated 14.08.1995 to be served upon the defendant-vendor through their learned Counsel Mr. Chashmveer Singh, an Advocate at Baghpat, calling upon the defendant-vendor to appear before the Sub-Registrar’s office at Baghpat on 15.09.1995 and execute the requisite sale deed in terms of the suit agreement, upon receipt of the balance sale consideration. The notice aforesaid was served upon the defendant-vendor in due time and on 15.09.1995, the plaintiff-vendees attended the office of the Sub-Registrar at Baghpat, but the defendant-vendor did not appear to fulfil his obligation under the suit agreement. The plaintiff-vendees, on 15.09.1995, reached the Sub-Registrar’s office at Baghpat, along with balance sale consideration and waited outside the office throughout the day for the defendant-vendor. The plaintiff-vendees got their attendance marked with the Sub Registrar in accordance with rules. The defendant-vendor got the plaintiff-vendees' notice dated 14.08.1995 replied to through his Counsel vide a memo dated 23.08.1995, carrying incorrect facts. The defendant-vendor’s reply to the notice dated 14.08.1995 assured the plaintiff-vendees that the former had turned dishonest and was disinclined to execute a sale deed in terms of his obligations under the suit agreement.
5. Accordingly, the plaintiff-vendees instituted Original Suit No. 769 of 1998 before the Court of Civil Judge (Senior Division), Meerut on 20.08.1998, seeking a decree of specific performance, ordering the d
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