FIRST APPEAL No. 108 OF 1993 Against the judgment and decree dated 25.11.1992 passed by Sri Narendra Mishra, Sub Judge 1st, Patna in Title Suit No. 193 of 1986. SMT. SUNDARI DEVI ………. Plaintiff/Appellant Versus DEO NARAYAN PRASAD ……… Defendant/Respondent ******** For the Appellant : Mr. Jitendra Kishore Verma, Advocate. For the Respondent : None ________________________________________________________ Dated : 14th day of January, 2011 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T 1. The plaintiff has filed this first appeal against the judgment dated 25.11.1992 and the decree following thereupon signed on 11.12.1992 by the learned Sub Judge-1st, Patna in Title Suit No. 193 of 1986 dismissing the plaintiff-appellant’s suit for specific performance of contract. 2. The plaintiff-appellant filed the aforesaid Title Suit No. 193 of 1986 for a decree of specific performance of contract for sale against the defendant and alternatively for a decree for refund of earnest money of Rs.33,000/- with interest against the defendant. 3. According to the plaintiff’s case the defendant-respondent entered into a contract with the plaintiff for sale of 3 kattha out of 45 Mungeshwar Sahoo, J. -2- decimal of land comprised within M.S. Plot No.5158 Holding No. 136/134 in Ward No. 37/32 corresponding to survey Plot No. 327 for a consideration of Rs.66,000/-. The plaintiff paid Rs.33,000/- as earnest money on 12.11.1983 and defendant executed a bai bayana deed in favour of the plaintiff and handed over the same to the plaintiff. The defendant undertook to obtain permission from the competent authority for executing sale deeds. The date was fixed to 11.7.1984 within which the sale deed was to be executed and it was agreed that at the time of registration the plaintiff will pay the balance consideration amount of Rs.33,000/-. The further case of the plaintiff is that the plaintiff requested the defendant several times through her husband to execute and register the sale deed on receipt of the balance consideration amount but the defendant always put off the matter on one pretext or other. Therefore, on 21.6.1984 the plaintiff served a registered notice through her Advocate but a false and collusive report was made by the postal peon and returned the notice. Then the plaintiff by way of last chance served the defendant another registered notice on 7.4.1986 calling upon the defendant to execute and register the sale deed after receiving the balance consideration amount within one month but in spite of receipt of the said notice the defendant did not execute the sale deed. Hence the suit. The plaintiff’s further case is that she was always ready and is still ready to pay the balance consideration amount and get the sale deed executed and registered. 4. On being noticed the defendant-respondent appeared and filed a contesting written statement. The defendant’s case in short is that when he was in need of money he had taken an accommodative loan of Rs.10,000/- on 1.4.1983 from Ashok Kumar. Subsequently, the defendant tried to refund him Rs.8000/- but Ashok Kumar refused to accept it. On 12.11.1983 the said Ashok Kumar called this defendant -3- at his residence with tax and rent receipt of the land. The defendant went there, then Ashok Kumar took out a non-judicial stamp paper and asked the scribe, who was sitting there from before, to draft the deed of agreement and it was scribed by Ved Prakash Jaiswal. The defendant did not agree to the said proposal mentioned in the agreement. Moreover, the price of the land was mentioned very low. Therefore, Ashok Kumar assured the defendant that he will not get the same enforced and the defendant could not understand its legal impact and was dominated by Ashok Kumar and other person and the defendant signed the agreement which is fake, false, showy and frivolous deed of agreement and no consideration money was paid to the defendant. The said Ashok Kumar is one of the witnesses in the agreement of sale dated 12.11.1983 Ext.1. The further case is that the defendant had no intention to sell the suit land as the suit land faces roads on two sides and is very suitable for house and godown for his business. Since there was no contract, there is no question of undertaking to obtain permission and also there was no question of readiness and willingness of the plaintiff. No notice was ever served on him. 5. On the basis of the pleadings of the parties the learned court below framed the following issues :- i) Is the suit as framed maintainable ? ii) Has the plaintiff got valid cause of action for the suit ? iii) Is the suit barred by law of limitation, principle of estoppel, waiver and acquiescence ? iv) Is the deed of agreement for sale dt. 12.11.83 genuine and for consideration ? v) Is the plaintiff ready and willing to perform her part of the contract ? -4- vi) Is the plaintiff entitled for decree for part performance of contract against the defendant ? vii) Is the deed of agreement for sale dt. 12.11.83 collusive and brought into existence under undue influence ? viii) To what other relief or reliefs, if any, is the plaintiff entitled to ? 6. After trial the learned court below while deciding issue Nos. 4, 6 and 7 at paragraph 8 observed as follows : “In view of the evidence on record, it is found that the plaintiff has failed to examine Ashok Kumar who is one of the witnesses of bai bayana deed and against whom the defendant has alleged for getting deed of agreement executed under coercion and duress. He could have the best person to deny the allegations leveled against him by the defendant. There is no denial of this fact that Ashok Kumar is not the witness of bai bayana. There is no explanation as to why Ashok Kumar has not been examined when he is alive”. With the above observation, the learned court below ultimately held that the alleged bai bayana deed Ext. 1 is not genuine and valid for consideration. It is collusive and had been brought into existence under duress and compulsion. While deciding issue Nos. 2 and 5 regarding readiness and willingness the learned court below at paragraph 9 held that the plaintiff was not willing and ready to perform her part of the contract and, therefore, dismissed the plaintiff’s suit for specific performance of contract. 7. Mr. Jitendra Kishore Verma, the learned counsel appearing on behalf of the appellant submitted that the execution of the deed of agreement to sell i.e. Ext.1 is admitted and signature on it is also admitted by the defendant in the written statement but alleged that it was because of coercion and duress and pressure given by Ashok -5- Kumar and, therefore, the onus was upon the defendant to prove the said facts by adducing cogent and reliable evidence in view of Section 102 of the Evidence Act. The learned counsel placed in extenso Section 102 of the Evidence Act and also the illustration B of the said Section and submitted that to prove the fact alleged by the defendant in the written statement the defendant was required to adduce cogent evidence and on his failure to prove the said facts the case pleaded by the defendant should have been disbelieved but in the present case the learned court below disbelieved the case of the plaintiff on the ground that the plaintiff failed to examine Ashok Kumar to deny the allegation made by the defendant. The learned counsel further submitted that this is wrong approach of the learned court below. The learned counsel further submitted that although in the written statement the defendant clearly stated that the agreement was executed by the scribe and on the pressure of Ashok Kumar he signed on it but on the evidence he has given entirely different story by stating that his signature was obtained on blank paper. The learned counsel further submitted that in this case the execution and signing of Ext.1 is admitted by the defendant and the defendant failed to prove the fact of coercion and influence of Ashok Kumar in executing the deed of agreement, therefore, the finding of the learned court below on this point is liable to be set aside. 8. The learned counsel next submitted that the learned court below has not properly appreciated the evidence adduced on behalf of the plaintiff appellant. According to the learned counsel because of the above facts the learned court below has wrongly given a finding that the plaintiff appellant was not ready and willing to perform her part of the contract. The learned counsel submitted that as required under Section 16(C) of the Specific Relief Act the plaintiff has clearly averred in the plaint and also adduced evidence in support of the said facts and -6- also sent a registered notice but the learned court below disbelieved the same and, therefore, the finding of the learned court below on the question of readiness and willingness is also liable to be set aside as the plaintiff-appellant was all along ready and is still ready to perform her part of the contract. 9. In this case it appears that in spite of service of notice nobody appears on behalf respondent at the time hearing of appeal. 10. In view of the above facts and circumstances of the case following points arise for consideration in this appeal : Point No.1. Whether the deed of agreement dated 12.11.1983 Ext.1 came into existence because of undue influence and coercion of Ashok Kumar and is without free consent and no consideration amount was paid to the defendant ? Point No.2. If Ext. 1 is valid and genuine then whether the plaintiff was all along and is still ready and willing to perform her part of the contract ? 11. Point No.1: In this case the plaintiff has specifically stated that on 12.11.1983 the defendant agreed to sell 3 katthas of land for Rs.66,000/- and Ext.1 bai bayana was executed on receipt of Rs.33,000/- as earnest money. The balance consideration amount was to be paid at the time of registration of the sale deed on or before 14.7.1984. To the contrary the case of the defendant is that the defendant signed the agreement because of misrepresentation and coercion and pressure put by one of the witnesses Ashok Kumar from whom he had taken a loan of Rs.10,000/-. It may be mentioned here that in the written statement the defendant clearly admitted his signature on the deed of agreement i.e. Ext.1. There is no denial on his part either in the pleadings or in the evidences that he had not -7- signed the agreement. However, in the evidence as DW 3 has stated that on blank paper his signature was obtained and the agreement was created. Therefore, so far this evidences is concerned it is not supported by any pleading. The defendant made a different case in the written statement and different case in the evidence. In view of Section 102 of the Evidence Act the onus is upon the defendant to prove the fact alleged by him and on his failure to do so his defence cannot be relied upon. Admittedly, Ashok Kumar is one of the witnesses in the Ext.1. The signature of the defendant is admitted. Only dispute by the defendant is that the agreement was obtained without his free consent and because of undue influence and coercion. From perusal of the evidence and also in the written statement there is nothing to show that after the alleged execution of Ext.1 the defendant made any complaint about the act of Ashok Kumar just after the executing of Ext.1 till filing of the written statement or even thereafter. The defendant never filed any suit challenging the agreement of sale dated 12.11.1983 on the ground that it was obtained because of misrepresentation, coercion, undue influence or for without consideration. Only as a defence in the written statement this case has been pleaded. However, there is no evidence in support of this fact except the oral statement. This evidence of the defendant is not supported by the circumstances, the conduct of the defendant. Even to prove this fact no documentary evidence has be adduced that he ever took loan of Rs. 10,000/- from Ashok Kumar. 12. The defendant had examined six witnesses. DW 3 is the defendant himself. He has stated in his evidence which is the same story pleaded in the written statement except that his signature was obtained on the blank paper. As stated above except the pleading and the evidence about undue influence, coercion etc. there is nothing on record in support of the case pleaded by him. Onus was upon him to -8- prove his case by examining Ashok Kumar. Ashok Kumar was the best person to have supported that whether in fact he had advanced loan of Rs.10,000/-. As stated above no documentary evidence has been adduced by the defendant. The learned court below approached the case in wrong angle and placed the onus on the plaintiff to disprove the allegation of the defendant by examining Ashok Kumar. 13. In view of my above discussion I find that the defendant in the written statement admitted Ext.1 and his signature on it. He failed to prove by adducing cogent evidence that Ext.1 was obtained by the plaintiff because of undue influence, pressure and coercion of Ashok Kumar one of the witnesses. I therefore find that Ext.1 is valid and legal document. 14. From perusal of the evidence of PW 1 the husband of the plaintiff and the witness examined on commission i.e. the plaintiff herself have stated that at the time of execution of the agreement Rs.33,000/- was paid to the defendant as earnest money. On the contrary as stated above only denial has been made by the defendant which is not supported by his conduct as he pleaded entirely a different fact in the written statement and gave a different fact in his evidence regarding execution of evidence I therefore, find that the plaintiff paid Rs.33,000/- as earnest money on the date of execution of Ext.1 the finding of the lower court below on these points are therefore, reversed. 15. Point No.2. According to the plaintiff she was all along ready and is still ready to pay balance consideration amount. At paragraph 4 of the plaint it is pleaded that the plaintiff always was and has been ready and willing to perform her part of the contract and to have the sale deed executed and registered by the defendant on payment of the balance consideration amount of Rs.33,000/- and the plaintiff several -9- times requested the defendant through her husband but the defendant always put off the matter on one pretext or the other. At paragraph 5 it is pleaded that on 21.6.1984 a registered notice was sent to the defendant through Advocate but it was returned with false and collusive report and then at paragraph 6 it is pleaded that by way of last chance another registered notice was sent to the defendant on 7.4.1986. It may be mentioned here that the last date of execution and registration of the sale deed was 11.7.1984. So far first register notice dated 21.6.1984 is concerned there is no evidence on record except the oral statement of the plaintiff and her husband. The report of the postal peon has not been brought on record. So far second registered notice is concerned it is of the year 1986 i.e. dated 7.4.1986 which has been marked as Ext.2. From perusal of the evidence of the husband of the plaintiff who was examined as PW 1 and the plaintiff herself who was examined on commission except the evidence in support of this pleading as stated i.e. paragraph 4, 5 and 6 of the plaint no other evidence has been adduced. Mr. Verma, the learned counsel submitted that every minute detail of offering the payment is not necessary either to be pleaded or to be proved and it is not the requirement of law. According to the learned counsel the requirement of law is that the plaintiff should aver in the plaint regarding continuous readiness and willingness and adduce evidence in support of the same and in this case it is specifically pleaded that the plaintiff was always ready and willing and is still ready and willing to perform her part of the contract and evidence has been adduced. The husband of the plaintiff and the plaintiff have stated that the plaintiff was always ready and is still ready and many times the defendant was approached to execute the sale deed and therefore, the learned court below has wrongly found that the plaintiff failed to prove her readiness and willingness. The learned counsel placed reliance on AIR 1997 -10- Patna 10 Munarma Devi alias Manorama Devi Vs. Gango Devi alias Gangia Devi and others and AIR 1994 SC 105 Surya Narain Upadhyaya Vs. Ram Roop Pandey and others. 16. In the case of Phullan Mian and others Vs. Jogendra Ram and another 2006 (3) PLJR 526 this Court while considering the provision of Section 16-C of the Specific Relief Act relying upon the decision of the Apex Court in paragraphs 11 to 13 has held as follows : “11. It is settled principle of law that for establishing the case of the specific performance of contract, it is essential to state and prove that the plaintiff was always ready and willing to perform his part of the contract. Mere insertion of the averments in the plaint that the plaintiff was always ready and willing to perform his part of the contract is not sufficient to decree the suit for the specific performance of contract but this statement must be proved by convincing evidence either oral or documentary. 12. Section 16 of the Specific Relief Act, 1963 (hereinafter to be called as “the Act”) imposes bar in granting relief for specific performance of contract if certain facts are not proved. Sub-section (c) of Section 16 of the Act is relevant in this case which runs as follows :- “Specific performance of a contract cannot be enforced in favour of a person.- (c) who fails to aver and prove that he 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 of the performance of which has been prevented or waived by the defendant.” 13. Thus, Section 16 of the Act referred above, specifically says that in order to obtain decree for -11- specific performance of contract, the plaintiff has to aver as well as to prove that he has performed or has always been ready and willing to perform the essential terms of the contract and if it is found that the plaintiff has failed to prove by cogent evidence that he has performed and/or has always been ready and willing to perform the essential terms of the contract, he will not be entitled for decree of specific performance of contract. In this regard, I place reliance upon the decision of the Apex Court in the case of Jugraj Singh and Anr. Petitioners vs. Labh Singh and Ors. Respondents reported in AIR 1995 Supreme Court 945. Paragraph 3 of the said decision which is relevant in this case runs as follows:- “Section 16(c) of the Specific Relief Act, 1963 provides that the plaintiff must plead and prove that he has always been ready and willing to perform his part of the essential terms of the contract. The continuous readiness and willingness at all stages from the date of the agreement till the date of the hearing of the suit need to be proved. The substance of the matter and surrounding circumstances and the conduct of the plaintiff must be taken into consideration in adjudging readiness and willingness to perform the plaintiff’s part of the contract.” 17. Therefore, the basic principal behind Section 16(C) is that any person seeking benefit of the specific performance of contract himself manifest that his conduct has been blamishless throughout entitling him to the specific relief. The provision imposes a personal bar. The court is to grant relief on the basis of the conduct of the person seeking relief. If the pleading manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied relief but it is clear that the averment of readiness and -12- willingness in the plaint should not be a mathematical formula which should not be in specific word only. From the averment in the plaint supported by evidence should clearly indicate the readiness and willingness of the plaintiff. The conduct of the plaintiff should be reflected from the subsequent circumstances and conduct of the plaintiff. No doubt readiness and willingness could not be treated as a straight jacket formula and that had to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned. In the present case, except the mathematical pleading and evidence that the plaintiff was always ready and willing to perform her part of the contract there is no cogent and reliable evidence. It is stated in the evidence in examination in chief by PW 1 that many times he approached the defendant to receive consideration amount and register the sale deed. His wife i.e. the plaintiff has stated that she had asked the defendant through her husband to execute the sale deed. Except this bald statement in the pleading as well as in evidence there is nothing on record to show that the plaintiff was ever ready and willing to perform her part of the contract. The onus was upon the plaintiff to adduce reliable evidence as to when the money was offered to the defendant and what was his reply. Whether the defendant ever refused to execute the sale deed or he refused to accept the plaintiff’s consideration amount. Whether the plaintiff ever called upon the defendant to the registry office. All these questions are not clear from the pleadings or evidence. Likewise so far issuance of first registered notice is concerned i.e. dated 21.6.1984. Except the pleading and the evidence nothing has been brought on record to show that in fact such registered notice was sent. There must be something on record so that the Court can rely on it. The second notice is dated 7.4.1986 i.e. Ext.2. So far this notice is concerned it is after two years. There is no evidence on record to show -13- the intention, the conduct of the plaint about her readiness and willingness during this long period. 18. It is well settled principles of law that mere averments in the plaint about readiness and willingness is not sufficient. The averment must be proved by convincing and reliable evidence. 19. Now let us consider the decision relied upon by the learned counsel for the appellant. So far Manorama Devi’s case (Supra) is concerned it appears that in that case it was a case of re-conveyance and from perusal of paragraph 11 of the judgment it appears that the trial court after discussing elaborately the oral evidences found that the plaintiff went rightly to the defendant to pay back the entire consideration amount to the defendant but the same was refused by the defendant. From perusal of the paragraph 2, it appears that the plaintiff at the time of filing the suit itself deposited the consideration money of Rs.5000/. In the present case at our hand except the above mathematical pleading and evidence there is no reliable and convenience evidence. The register notice Ext.2 was served after two years of the last date fixed for executing and registration of the sale deed. 20. So far the case of Surya Narain Upadhyaya (Supra) is concerned it was a case of second