RSA Nos. 1696 and 1697 of 1986 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 1696 of 1986 Date of decision 28.4.2011 1. RSA No. 1696 of 1986 Kanwar Paul Singh Appellant vs. Amar Singh Respondent 2. RSA No.1697 of 1986 Jaipaul and Ors Appellants vs. Amar Singh Respondent CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr.Nitin Sarin,Advocate for the appellant Mr. Santosh Sharma,Advocate for the respondent ..... JITENDRA CHAUHAN.J This order of mine shall dispose of RSA Nos. 1696 of 1986 and 1697 of 1986 (Kanwar Paul Singh v. Amar Singh and Jaipaul and Ors. v.Amar Singh respectively) filed by the appellant-plaintiff against the decree and judgments dated 1.4.1986 of Ld. Ist Appellate Court and 17.5.1985 of Ld.trial Court dismissing the appeal and suit of the appellant/s-plaintiff/s. Amar Singh, defendant-respondent entered into an agreement of sale on 10.12.1979 with Kanwar Paul Singh,the plaintiff and agreed to sell his one-half share in the land measuring 14 kanals 3 marlas situated in village Lula Ahir for a sum of Rs.12,000/-.After the execution of the agreement of sale, one Nand Lal filed a suit for permanent injunction against Amar Singh,the defendant and obtained an order of injunction restraining Amar Singh to sell the land. Subsequently a fresh agreement of sale took place between the parties on 18.12.1979 and it was agreed that the RSA Nos. 1696 and 1697 of 1986 2 sale deed would be executed after the decision of the suit filed by Nand Lal. This suit was decided on 26.4.1982 in favour of Amar Singh, the plaintiff and the stay order was vacated. After the decision of the suit, the defendant refused to execute the sale deed in favour of the plaintiff. The defendant was served with a registered notice dated 12.6.1982 and the plaintiff claims a decree for specific performance of the agreement of sale. Defendant contested the suit and denied the execution of the agreement of sale. His plea is that the alleged agreement is illegal and unenforceable. He even denied the receipt of registered notice. From the pleadings of the parties, the following issues were raised:- 1. Whether the plaintiff is entitled for the possession of the suit property by way of specific performance as alleged in the plaint? OPP 2. Whether the plaintiff has no locus standi to file the present suit as there is no legal contract between the plaintiff and the defendant?OPD 3. Whether the suit is time barred? OPD 4. Whether the plaintiff has got no cause of action to file the present suit? OPD 5. Whether the suit is not properly valued for the purpose of court fees and jurisdiction? OPD 6. Whether the suit is not maintainable in the present form?OPD 7. Whether the plaint has not been verified according to law? If so,to what effect ? OPD 8. Whether the suit has been filed just to harass the defendant and the defendant is entitled for special costs under Section 35-A, C.P.C.? OPD 9. Relief. The learned trial court decided all the issues in favour of plaintiff except issue No.1, and held that the plaintiff has not pleaded in the plaint that he was ready and willing to perform his part of the contract and, therefore, he is not entitled to the relief of specific performance of the agreement of sale and dismissed the suit. Feeling aggrieved, the plaintiff filed an appeal before the Ld. Ist AppellateCourt. The important point argued before the Ld. Ist Appellate Court RSA Nos. 1696 and 1697 of 1986 3 was whether the plaintiff was ready and willing to perform his part of the contract and whether it has been so pleaded in the plaint? It has been observed by the Ld.Ist Appellate Court that there is no averment in so many words in the plaint that the plaintiff was always ready and willing to perform his part of the contract and the failure on the part of the plaintiff to make such an averment resulted in the dismissal of the suit. The Ld.Ist Appellate Court dismissed the appeal of the plaintiff by holding that the Ld.trial court was right in dismissing the suit of the plaintiff and affirmed its findings. Aggrieved by which, the appellant has preferred this regular second appeal. Learned counsel for the appellant has submitted that the language in Section 16(c) of the Specific Relief Act, 1963 (for short the “Act”) does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. He further submitted that the compliance of readiness and willingness has to be in spirit and substance and not in letter and form. He submitted that from para 2 of the plaint, it is established that appellant remained ready and willing to execute the agreement reached between the parties. To buttress his argument, he has relied upon Syed Dastagir v.T.R.Gopalakrishna Setty (1999) 6 Supreme Court Cases 337. Learned counsel has further submitted that the Ld.Ist Appellate Court has relied upon Dhanna Singh and another v. Malkiat Singh and another 1983 P.L.R 275, which has been held per incuriam by this Court in Basheshar Nath v. Radha Kishan 1993 P.L.J 265. He has argued that there was no pleading by the defendant-respondent regarding fulfillment of section 16(c) of the Act and no issue was framed whether section 16(c) of RSA Nos. 1696 and 1697 of 1986 4 the Act was complied with or not. He has lastly argued that in view of the admitted fact that sale deed stands proved, as reflected by the ld. trial court, both courts below have erred in dismissing the suit of the plaintiff-appellant. On the other hand, learned counsel for the respondent referred to section 16(c) of the Act to argue that it is mandatory in nature to specifically plead that appellant remained willing and ready throughout to execute the sale deed and in the absence of specific averments in the plaint, the suit of the plaintiff deserves to be rejected outrightly.He further submitted that the agreement to sell in the instant case is not proved. Learned counsel has submitted that in pursuance of the agreement dated 18.12.1979, the payment of earnest money is not proved and,therefore, it can specifically be presumed that no agreement as such was executed between the parties. He has further argued that the specific performance of the contract cannot be enforced in favour of the person, who fails to aver and prove his readiness and willingness to perform essential terms of the contract. In support of his argument, he relied upon Bal Krishan and Anr. v. Bhagwan Das (Dead) & Ors. 2008(2) R.C.R(Civil) 732. I have heard the learned counsel for the parties and perused the record. To prove the factum of agreement having been executed, the plaintiff examined Om Parkash Deed Writer,PW1, Jagdish Chander,PW2 and Jaipaul PW3. The Ld. trial court observed that in view of the statements of these witnesses, agreement dated 18.12.1979 Ex.P1, and the sale deed dated 10.12.1979, Ex. PW4/1 stand proved executed by defendant in favour of the plaintiff. However, the fact of sale consideration of Rs. 12000/- was not proved in view of the contradictions in the testimony of PW2. RSA Nos. 1696 and 1697 of 1986 5 Admittedly the specific averment of “readiness and willingness” to perform his part of contract on the part of the plaintiff is not reflected in the plaint.The Ld.trial court has recorded that apart from the absence of specific pleading of “readiness and willingness” on the part of plaintiff to perform his part of contract, the plaintiff did not depose specifically before the court that he was still ready and willing to perform his part of the contract. Rather, he has simply deposed that after the decision of the case in 1982, he asked the defendant to get the sale deed executed and the defendant refused to do so. The Ld.Ist Appellate Court has not expressed any opinion regarding the fact of execution of the sale deed but has only examined the necessity and effect of specific averments in the suit for specific performance. There is no dispute that agreement dated 18.12.1979 (Ex.P1) was executed between the parties and the sale deed dated 10.12.1979 (Ex.PW4/1) was validly executed as noticed by the Ld. trial court. But there is no specific finding on this issue by the Ld. Ist Appellate Court. For the sake of reference, Section 16(c) of the Act, reads as under:- “16. Personal bars to relief-Specific performance of a contract cannot be enforced in favour of a person- (a) (b) * * * * * * (c) who fails to aver and prove that h has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. Explanation.--For the purposes of clause (c) (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court; (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.” RSA Nos. 1696 and 1697 of 1986 6 The admitted facts are that there is no pleading that the plaintiff was ready and willing to execute the sale deed. In the opinion of this Court, what is more relevant is the deposition of the plaintiff before the trial Court wherein he has not reiterated his willingness and readiness to perform his part of the contract. Neither earnest money as alleged by the plaintiff is proved to have been paid nor plaintiff made an offer before the courts below that he was ready and willing to perform his part of the contract. Therefore, in my opinion the plaintiff has failed to plead in any form and in substance and spirit that he was ready and willing to perform his part of the contract. Even before this Court in the grounds of appeal, the appellant-plaintiff has not pleaded that he is still ready and willing to perform his part of the contract. Both the courts below have concurrently held that the plaintiff is not entitled to the possession of the suit property and this court will not interfere in the findings of both the courts below being concurrent findings of fact. The requirements of section 16(c) quoted above are not fulfilled. No substantial question of law arises for consideration of this court. Consequently, the present second appeal is dismissed and the decree and judgments passed by the courts below are maintained. There shall be no order as to costs. In view of the findings recorded above, RSA No.1697 of 1986 is also dismissed with no order as to costs. April 28 ,2011 (JITENDRA CHAUHAN) MS JUDGE Note: Whether to be referred to the Reporter? Yes/No.