RSA No. 1124 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 1124 of 1985 Date of decision: August 12, 2011 Charan Singh (through LRs) ...Appellant Versus Gurbachan Kaur ...Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. Arnav Sood, Advocate, for the appellant. Mr. Jasjit Singh, Advocate, for the respondent. GURDEV SINGH, J. This second appeal has been preferred by Charan Singh— appellant/plaintiff, (now being represented by legal representatives) against the judgment and decree dated 14.2.1985 passed by the Additional District Judge, Kjapurthala, vide which she partly accepted the appeal filed by Gurbachan Kaur—respondent/defendant, against the judgment and decree dated 18.5.1984, passed by the Sub Judge Ist Class, Kapurthala, decreeing the suit of the plaintiff for specific performance of the agreement dated 13.2.1981, and decreed the suit of the plaintiff for recovery of Rs. 7,000/- and dismissed the same for specific performance. The suit was filed by the plaintiff for possession of the land in dispute measuring 12 kanals situated in the area of village Desal, Tehsil and District Kapurthala, by way of specific performance of the agreement dated RSA No. 1124 of 1985 2 13.2.1981. In the alternate, the suit was filed by him for recovery of Rs. 12,000/-; Rs. 7,000/- as refund of earnest money and Rs. 5,000/- as damages. He averred in his plaint that the defendant was the owner of the land in dispute and agreed to sell the same in his favour, vide agreement dated 13.2.1981, @ Rs. 8,000/- per killa and he paid Rs. 7,000/- as earnest money at the time of the execution of the agreement. The sale deed was to be executed by 12.2.1982. As per the terms of the agreement, he was given the right to get the sale executed through court in case the defendant did not execute the same in his favour by the agreed date. He was always ready and willing to get the sale deed executed in his favour, as per the terms of the agreement and had been asking the defendant repeatedly to execute the same after receiving the balance sale consideration, but she had been putting off the matter on one pretext or the other. On 12.2.1982, he, accompanied by the witness, went to the defendant and tendered her the balance sale consideration of Rs. 7,000/- and expenses to be met for executing the sale deed and asked her to execute the sale deed, but she failed to do so. On that date, he remained present in the teshil complex at Kapurthala throughout the day, but the defendant did not turn up. Thereafter, he got his presence marked by moving an application. The suit was contested by the defendant. In her written statement, she denied the contents of the plaint and, inter-alia, pleaded that no such agreement was ever executed by her in favour of the plaintiff and the same has been fabricated by him in connivance with the scribe and the witnesses. She was never asked by the plaintiff to execute the sale deed in his favour nor any such amount was tendered to her. She prayed for the dismissal of the suit. RSA No. 1124 of 1985 3 On the pleading of the parties, the following issues were framed by the trial court:- 1. Whether the defendant executed the agreement dated 13.2.1981 and agreed to sell the land in dispute at the rate of Rs. 8000/- per killa ? If so, its effect ? OPP 2. Whether the defendant took a sum of Rs. 7000/- as earnest money, at the time of the execution of the agreement? If so, its effect ? OPP 3. Whether the plaintiff is ready and willing to perform his part of the agreement ? OPP 4. Whether the plaintiff is entitled to the decree for specific performance of the contract by way of possession of the land in suit? 5. Relief. To succeed in the suit, the plaintiff examined himself as PW2, Lakesh Kumar, Deed Writer (PW-1) and Wazir (PW-3). On the other hand, defendant entered the witness box as DW-1, Ram Singh (DW-2), Om Parkash (DW-3), Gurcharan Singh (DW-4), Charan Singh (DW-5) and Surjan Singh (DW-6). After going through that evidence and hearing learned counsel for both the sides, the trial court decided all the issues in favour of the plaintiff and resultantly, decreed his suit for specific performance. As already said above, in the appeal filed by the defendant against the judgment and decree of the trial court, the suit of the plaintiff for specific performance was dismissed and in the alternate the same was decreed for the recovery of Rs. 7,000/-. RSA No. 1124 of 1985 4 I have heard learned counsel for both the sides. Challenging the finding of the first appellate court on issue No.3, it has been submitted by the learned counsel for the plaintiff that the finding is perverse and is the result of non-application of the relevant law on the subject. The plaintiff specifically pleaded in his plaint that he was always ready and willing to perform his part of the contract and that he had even tendered the balance sale consideration and other expenses to the defendant and asked her to execute the sale deed in his favour. Those facts were duly proved by the plaintiff by leading cogent and convincing evidence. The issue could not have been decided against the plaintiff, merely on the ground that he failed to prove that on the date fixed for execution of the sale deed, he remained present in the office of the Sub- Registrar and got his presence marked by moving an application. The court is to see the cumulative effect of the pleadings and the evidence for recording a finding regarding readiness and willingness on the part of the plaintiff to perform his part of the contract. Therefore, a substantial question of law arises in the present appeal as to “whether the findings on issue No.3 could have been recorded against the plaintiff, mainly on the ground that he failed to prove that on the date of execution of the sale deed he remained present in the office of the Sub-Registrar and the defendant did not turn up for executing the sale deed in his favour.” He further submitted that major portion of the sale consideration had already been paid to the defendant and, as such, readiness and willingness on his part to perform his part of the contract is to be presumed. He supported his arguments by Motilal Jain versus Ramdasi Devi (Smt.) and others 2000 (6) SCC 420 and Raj Pal Singh versus Baldev Singh and others 2005 (3) RCR (Civil ) 100. According to RSA No. 1124 of 1985 5 him, in view of the evidence produced on the record, that substantial question of law is to be decided in favour of the plaintiff and his suit is to be decreed for specific performance of the agreement. On the other hand, it was submitted by the learned counsel for the defendant that the pleadings of the plaintiff that he approached the defendant on the date fixed for execution of the sale deed and tendered her the balance sale consideration etc, were introduced by means of amendment. No doubt, he has produced his evidence in support of those pleadings, but it cannot be concluded from that evidence that the plaintiff throughout remained ready and willing to perform his part of the contract. The best evidence in possession of the plaintiff, which was the application presented by him before the Sub-Registrar for getting his presence marked, has been withheld, for which an adverse inference is to be drawn against him. A correct finding was recorded by the first appellate court on issue No.3 and there is no ground for upsetting that finding. In view of the submissions made by the learned counsel for the parties and the grounds of appeal, the following substantial questions of law arise in the present appeal:- 1. Whether readiness and willingness of the plaintiff to perform his part of the contract can be inferred merely on the ground that major portion of the sale consideration had already been paid at the time of the execution of the agreement ? 2. Whether the finding recorded by the first appellate court on issue No.3 is perverse and is a result of non- application of law on the subject concerned ? RSA No. 1124 of 1985 6 Question No.1 Learned counsel for the plaintiff has relied upon Motilal Jain's case (supra) in support of his submission regarding drawing of presumption with regard to readiness and willingness on the part of the plaintiff to perform his part of the contract on account of the fact that major portion of the sale consideration had already been paid at the time of the execution of the agreement. Firstly, there is fallacy in the argument of the learned counsel that major portion of the sale consideration had already been paid. The agreement was for the sale of 12 kanals of land, which was to be sold at the rate of Rs. 8,000/- per killa and, as such, the total amount comes to Rs. 12,000/-. Out of that, only Rs. 7,000/- was paid at the time of the execution of the agreement. In Motilal Jain's case (supra), it was not held that on account of payment of major portion of the sale consideration, the readiness and willingness on the part of the plaintiff is to be presumed, In that case 2/3rd of the sale consideration had been paid at the time of the agreement and it was held that on account of payment of the major portion of the consideration, the willingness to pay the remaining amount was apparent. The law makes a distinction between readiness and willingness and the plaintiff is to prove both to succeed in the suit for specific performance. Accordingly, this question is decided against the plaintiff and in favour of the defendant. Question No.2. In support of the contentions made in the plaint, the plaintiff made the following statement:- “About 1 year and 8 month back, I went to the house of Gurbachan Kaur with sale consideration of Rs. 5,000/- and RSA No. 1124 of 1985 7 expenses for the registration and asked her to execute the sale deed in my favour, but she refused to do so. Inspite of that, I offered that amount to her.” The Hon'ble Supreme Court in Azhar Sultana versus B. Rajamani & Ors. 2009 (2) Civil Court Cases 1= 2009 AIR (SC) 2157, held that Section 16 (c) of the Specific Relief Act, 1963 postulates continuous readiness and willingness on the part of the plaintiff. It is a condition precedent for obtaining a relief of grant of specific performance of the contract. From the evidence produced by the plaintiff, it may be said that on one particular date, he was ready and willing to perform his part of the contract, but it cannot be concluded that throughout he was ready and willing to perform his part of the contract. The ratio of Raj Pal Singh's case (supra) is not applicable to the facts of the present case. In that case, the plaintiff had made his own statement on oath that he had gone to the office of the Sub-Registrar while accompanied by one Jai Singh, who supported his statement in the court. The plaintiff had also sent a telegram to the defendant which was duly received by him. It was in view of those facts that it was held that these facts are enough to show that the plaintiff had been ready and willing to perform his part of the contract. No doubt, merely on account of the failure of the plaintiff to prove that he had gone to the office of the Sub-Registrar ready with balance sale consideration and the other expenses and waited for the defendant throughout the day, it cannot be inferred that he failed to prove his readiness and willing, but certainly he was required to prove that throughout he remained ready and willing to perform his part of the contract. He miserably failed to prove the same. Issue No.3 was correctly decided against him by the first appellate court and RSA No. 1124 of 1985 8 there is no ground for upsetting that finding. Therefore, this question is also decided against the plaintiff and in favour of the defendant. In view of the decision on the above questions, I conclude that there is no merit in this appeal and the same is hereby dismissed. The judgment and decree of the first appellate court is upheld. Records of the courts below be returned. August 12, 2011 (GURDEV SINGH ) prem JUDGE