*THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY + Second Appeal Nos.1490 & 1492 of 2004 COMMON JUDGMENT: %29-11-2011 # Faiz Mohammed Khan (died per LRs) ..Appellants And $ Lingala Pentaiah ..Respondent !Counsel for the Appellants: Sri K. Raghuveer Reddy ^Counsel for respondent : Sri K. Aravinda Rao < Gist: > Head Note: Citations: THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Second Appeal Nos.1490 & 1492 of 2004 COMMON JUDGMENT: These two Second Appeals arise out of two suits between almost the same parties. Hence, they are disposed of through a common judgment. Defendants in O.S.No.65 of 2001, on the file of Junior Civil Judge, Bodhan, are the appellants in S.A.No.1492 of 2004. The sole plaintiff in O.S.No.158 of 2002 of the same Court filed S.A.No.1490 of 2004 against the sole defendant therein. During the pendency of O.S.No.65 of 2001, the 3rd defendant was added as party. Further, the 1st defendant died and his legal representatives were brought on record as defendants 4 to 8. For the sake of convenience, the parties are referred to, as arrayed in O.S.No.65 of 2001. The plaintiff filed the suit against defendant No. 1, and his son, defendant No. 2 for the relief of specific performance of an agreement of sale, dated 10-04-1997. He pleaded that defendants 1 and 2 are owners of two separate bits of land and that the agreement was executed by the 1st defendant, on behalf of himself and his son, for sale of the suit schedule property, admeasuring Ac.2.11 guntas for a consideration of Rs.65,974/-, and that on the date of agreement itself, a sum of Rs.50,000/- was paid, as advance. Receipt, Ex.A-1, is said to have been issued therefor. It was pleaded that the 1st defendant promised to get the signature of his son, the 2nd defendant, on the agreement and when there was no progress in that direction, the plaintiff gave the agreement of sale to the 3rd defendant for obtaining the signature of the 2nd defendant. It is stated that having promised to get the signature, the 3rd defendant did not return the agreement of sale, at all, and instead, purchased the property. A notice was issued on 03-03-2001, requiring the defendants 1 to 3 to execute the sale deed, after receiving the balance of consideration. Alleging that the defendants did not respond to the notice, the plaintiff filed the suit on 04-04-2001. The suit was contested by the defendants 1 and 2. I t was pleaded that they did not execute any agreement of sale at all in favour of the plaintiff. It was also pleaded that in respect of the same property, they entered into agreement of sale with the 3rd defendant and that thereafter executed a sale deed. The 3rd defendant in O.S.No.65 of 2001 filed O.S.No.158 of 2002 against the plaintiff, for the relief of perpetual injunction in respect of that very property. Naturally, the plaintiff pleaded the same facts, which he asserted in his plaint in O.S.No.65 of 2001; but in the form of written-statement. The trial Court clubbed both the suits and through a common judgment dated 13-10-2003, dismissed O.S.No.65 of 2001 and decreed O.S.No.158 of 2002. The plaintiff filed A.S.Nos.29 of 2003 and 27 of 2004 in the Court of VII Additional District and Sessions Judge, (Fast Tract Court), Nizamabad at Bodhan. The lower Appellate Court allowed the appeals on 14-10-2004. The result was that the suit for specific performance was decreed and the one, filed by the 3rd defendant for injunction was dismissed. Hence, these two second appeals. Sri K. Raghuveer Reddy, learned counsel for the defendants submits that the lower Appellate Court reversed the decrees passed by the trial Court without any basis and by drawing untenable inferences. He contends that the plaintiff was not sure as to the agreement of sale, inasmuch as in the plaint and in the notice, he pleaded that it was not available with him, whereas in his evidence, he stated that it is filed into the Court. Learned counsel submits that the lower Appellate Court committed error in law, by observing that oral evidence adduced in respect of the non-existent agreement deserves to be treated as secondary evidence. He further submits that the plaint in O.S.No.65 of 2001 is silent as to the readiness and willingness on the part of the plaintiff and thereby the suit was liable to be dismissed, as required under Section 16-(c) of the Specific Relief Act (for short ‘the Act’). Another contention of the learned counsel is that the suit was barred by limitation. Sri K. Aravinda Rao, learned counsel for the plaintiff, on the other hand, submits that the transaction was negotiated and was signed by the 1st defendant, and that he did not file any written- statement, during his life-time, denying the execution of the agreement. He contends that the circumstances under which the plaintiff was not able to file the agreement of sale have been stated in detail, and the trial Court has proceeded on hyper-technical grounds. Learned counsel submits that the receipt for part of the sale consideration, marked as Ex.A-1, was proved by examining the witnesses and the scribe, and that apart from witnessing the payment of advance of Rs.50,000/-, the agreement furnishes the particulars of the property and other terms of contract. Learned counsel submits that though there is no mention about delivery of possession in Ex.A-1, nor the agreement contains such a clause, the oral and documentary evidence adduced by the plaintiff proved the delivery of possession of the property. He has placed reliance upon certain precedents. As observed earlier, both the suits were clubbed together and the trial Court has framed the following issues for consideration: In O.S.No.65 of 2001: 1. Whether defendants No.1 and 2 executed the agreement of sale of the suit land on 10-4- 1997 in favour of plaintiff? 2. Whether the receipt purported to be executed by defendant No.1 is true and genuine? 3. Whether the defendants executed any agreement of sale dt.15-2-1992 in favour of defendant No.37? 4. Whether the sale deed dated 28-3-2002 in favour of defendant No.3 by defendant No.1 is illegal and is liable to be cancelled? 5. Whether plaintiff is entitled to specific performance of agreement of sale dated 10-4- 1997? 6. Whether the plaintiff is the lawful possession and enjoyment of the suit land? 7. Whether the defendants tried to dispossess the plaintiff? 8. Whether the plaintiff is entitled to perpetual injunction? Additional issue: Whether the defendants No.4 to 8 are liable to execute the sale deed in favour of the plaintiff they being the legal representatives of defendant No.1? In O.S.No.158 of 2002: 1. Whether the plaintiff is in lawful possession and enjoyment of the suit schedule property as on the date of filing of suit? 2. Whether the defendant has tried to interfere with the peaceful possession and enjoyment of suit schedule property? 3. Whether the plaintiff is entitled to perpetual injunction as prayed? O.S.No.65 of 2001 was dismissed and O.S.No.158 of 2002 was decreed. In the appeals preferred by the plaintiffs, the lower Appellate Court framed the following points for consideration: i) Whether plaintiff in O.S.No.65/2001 (P.W.1) purchased the said suit land under an agreement of sale and also obtained Ex.A1 receipt evidencing payment of Rs.50,000/- as earnest money and is entitled for the relief of specific performance as prayed for? ii) Whether Ex.B2 sale deed is liable to be cancelled? iii) Whether PW1 is entitled for the relief of perpetual injunction? iv) Whether D3 (DW1) who is plaintiff in OS 158/2002 is entitled for the relief of perpetual injunction in respect of AC.1-31 Gts. In S.No.558/E as prayed for? v) Whether the impugned decrees and common judgment are liable to be set aside? and answered all of them in favour of the plaintiff. This Court is of the view that in these Second Appeals, the following substantial questions of law arise for consideration, viz., 1) Whether in the absence of any recital in the plaint, in a suit for specific performance, as to the readiness and willingness on the part of the plaintiff to perform his part of contract; any relief can be granted by Court? 2) Whether any oral evidence can be adduced to prove the contents of a written document, unless the document itself, or any secondary evidence thereof, is placed before the Court? An agreement of sale wherever it exists, is nothing but a contract between two parties, and it would connote the respective obligations of the parties. In case one of the parties fails or refuses to perform his part of the obligation under the contract, common law provides for the remedy of claiming damages. It is only in certain specific cases, that the Act enables the Court to require a party to perform his part of the obligation. The Act itself mentions that such a remedy is discretionary, in the sense, even if the existence of agreement and failure or refusal by one of the parties to perform his obligation is proved, it is not necessary that the Court shall invariably order specific performance. The discretion, however, is required to be exercised in an objective manner. Section 16 of the Act stipulates certain circumstances under which the Court can refuse the relief, even if the existence of contract and breach thereof are proved. It is only when a party to a contract has performed his part of contract or is ready and willing to do so, that he can compel the other party to reciprocate. If the party who seeks the performance of the contract has either failed or was not ready and willing to perform his part, a justification exists for denying the relief. Section 16(c) of the Act directs that in case the plaintiff in a suit for specific performance fails to plead that he has been and is ready and willing to perform his part of contract, the Court shall not grant the relief. Hardly any element of discretion exists in this regard. The requirement is so mandatory that in form No.47 in Appendix-A of Schedule to C.P.C., a standard stipulation is incorporated, which reads: Para-5: “Plaintiff is ready and willing to pay the purchase money of the said property to the defendant”. In form 48, the stipulation is; “Plaintiff has been and still ready and willing specifically to perform the agreement of his part of which the defendant had notice”. In the instant case, the plaint filed by the 1st respondent herein is totally silent on this aspect. Learned counsel for the plaintiff submits that the very fact that a notice was issued and a suit was filed itself is an indication that his client is ready and willing to perform his part of contract. When the substantive law mandates that a specific plea must be raised and the procedural law prescribes the form, hardly there exists any scope for drawing inferences or assumptions. Therefore, the first substantial question of law is answered in favour of the defendants. The second substantial question of law is about the nature of proof of the agreement, which is sought to be enforced. The plaintiff was totally uncertain in this regard. The agreement was not filed into the Court. According to him, the agreement was reduced into writing, but the same was handed over to the 3rd defendant for obtaining the signature of the 2nd defendant. However, Ex.A-1, a receipt said to have been issued by the 1st defendant was filed into the Court. The evidence of PW-1 brings into light two aspects: The first is that the agreement was executed before Ex.A-1 was issued. The second is that the agreement was filed into the Court. As regards the first aspect, it may be noted that there is no mention of the execution of agreement in Ex.A-1. On the other hand, there is a stipulation to the effect that an agreement would be executed at a later point of time, after a stamp paper is obtained and that the signature of the 2nd defendant would be obtained. It means that by the time Ex.A-1 was executed, the agreement did not come into existence at all. As regards the second aspect, the evidence of PW-1 is contrary to the statement made by him in the plaint and version put forward in the notice, marked as Ex.A-8. PW-1 stated in the cross-examination as under: “I filed the said agreement of sale into the Court”. This statement was not varied in any manner known to law. About the timing of the agreement, he said, “After drafting the agreement and after payment of Rs.50,000/-, Ex.A-1 was passed”. Learned counsel for the plaintiff submits that the sentence extracted above was a slip of tongue of his client and the same need not be taken into account, since it runs contrary to the specific pleadings. It is here that the importance of evidence needs to be appreciated. Howsoever well-drafted and well-presented a pleading may be, its acceptability would depend upon the oral version of a person, who filed it. The importance of cross-examination in legal proceedings hardly needs any emphasis. It is ultimately what comes out in the cross-examination, that deserves to be treated as nearer to truth. It is not uncommon that for want of proper knowledge or on account of confusion, witnesses give statements contrary to what they have pleaded or stated earlier. In case the contradictory statement was a slip of tongue, the law provides for the facility of re- examination, so that such inadvertent omission or error can be rectified or explained. Failure to avail the facility of re-examination or to take other steps to neutralise a particular statement made contrary to the pleadings would have its own effect. In the instant case, the plaintiff did not take recourse to any such methods. The inescapable conclusion is that the plea of the plaintiff as regards the agreement of sale is an utter falsehood. The plaintiff insisted that possession was delivered to him when the agreement was entered into. It has already been mentioned that the so-called agreement is non-existent. Even in Ex.A-1, there is no mention about the delivery of possession. On the other hand, PW-5 categorically stated in his cross-examination that possession was not delivered. There are other inconsistencies in the evidence of the plaintiff’s witnesses. Therefore, the second substantial question of law is also answered in favour of the defendants. The Second Appeals are accordingly allowed. The result would be that the decree passed by the trial Court in O.S.No.65 of 2001 is restored. There shall be no order as to costs. ______________________ L.NARASIMHA REDDY, J Dt:29-11-2011 Note: L.R copy to be marked. (B/O) KO