IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No 654 of 1988 with CIVIL APPLICATION NO.12957 of 1999 with CIVIL APPLICATION NO.5272 OF 2000 For Approval and Signature: Hon'ble MR.JUSTICE D.C.SRIVASTAVA and Hon'ble MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- ASHWINKUMAR MANILAL SHAH Versus CHHOTABHAI JETHABHAI PATEL -------------------------------------------------------------- Appearance: MR YN OZA for Petitioners MR JITENDRA M PATEL for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE D.C.SRIVASTAVA and MR.JUSTICE H.K.RATHOD Date of decision:08/09/2000 C.A.V. JUDGEMENT Per D.C.Srivastava, J. The above-mentioned First Appeal and the two civil applications are proposed to be disposed by a common judgement and order. The First Appeal has been filed against the judgement and decree dated 2.12.1987 of Civil Judge (S.D.), Vadodara, dismissing the suit of the plaintiff-appellant for specific performance of agreement to sell, executed by the defendants nos.1 and 2 on 1.2.1979. The brief facts giving rise to this appeal are as under:- 2 On 1.2.1979 the defendants nos.1 and 2 along with the defendants nos.3 to 8 executed an agreement to sell the land belonging to exclusive ownership, possession and enjoyment of the defendants. The area of the land agreed to be sold was 37,371 sq. ft. of Survey No.17/2, which is wrongly mentioned in the plaint as Survey No.10/2 of village Manjalpura, District Vadodara, at the rate of Rs.5.81 per sq. ft. A sum of Rs.10,001 was paid as earnest money to the defendants. The boundaries of the land to be sold are given in paragraph 1 of the plaint. The defendants nos.1 and 2 at the time of execution of agreement to sell gave assurance that they have right to sell on behalf of the defendants nos.3 to 8 and the title of the said land is clear and marketable. It was the responsibility of the defendants to get non-agricultural permission under the Urban Land (Ceiling & Regulation) Act, 1976 and the expenses thereof were to be borne by the plaintiffs. As such upon the request of both the defendants one Ashok B. Patel, Advocate, was engaged for obtaining requisite permission. The balance amount was to be paid at the time of execution of sale deed and possession was also to be delivered thereafter. Since the property was ancestral property, it was partitioned on 19.9.1979 between the defendants nos.1 to 8. The proceedings for obtaining permission from the Urban Land Ceiling authorities were initiated but thereafter the defendants changed their mind because the prices of the land increased. The defendants nos.1 and 2 by their undated letter informed the plaintiffs that the agreement to sell has come to an end and they can get back the earnest money. Thereafter exchange of correspondence between the parties took place. Neither permission was obtained nor sale deed was executed. Hence, the suit for specific performance of agreement to sell was filed by the plaintiffs. 3 The suit was resisted by the defendants on variety of grounds. The first was that the correct survey number of the land in dispute is 17/2 and not 10/2. Execution of agreement to sell is not disputed. However, it was pleaded that the agreement to sell was not executed by defendants nos.1 and 2 on behalf of defendants nos.3 to 9. The said agreement is null and void because other co-sharers have not joined the same and it has also become null and void because the permission under Land Ceiling Act was not obtained by the plaintiffs. The defendants nos.1 and 2 returned the earnest money of Rs.10,000/- through bank draft by registered post but it was not accepted by the plaintiffs. Consequently, it was pleaded that the plaintiffs had no right to claim back the earnest money. 4 The Trial Court found that the agreement to sell dated 1.2.1979 was not executed by the defendants nos.1 and 2 with the consent of the defendants nos.3 to 9. It further found that the agreement is not a breach of contract and that the agreement to sell because invalid because of rejection of permission by the authorities under the Urban Land Ceiling Act. It was further found by the trial Court that the plaintiffs or any of them are not agriculturists. It further found that the plaintiffs were not ready and willing to perform their part of the contract hence, they are not entitled to decree for specific performance of the contract. As a consequence, it was further held by the trial Court that the plaintiffs are not entitled to get possession of the suit property. With these findings, the suit was dismissed. Hence this appeal. 5 The appeal was filed in the year 1988 whereas Civil Application No.5272 of 2000 was filed by the appellant in the year 2000 for permission to file additional evidence in this appeal under Order 41 Rule 27 of the Civil Procedure Code. This application was filed on 23.6.2000. Three documents are proposed to be tendered as additional evidence in the first appeal under Order 41 Rule 27 of CPC. The first is copy of the order passed by the competent authority under Urban Land Ceiling Act dated 21.10.1986. The second is copy of the zoning certificate issued by the competent authority of VUDA dated 25.2.1999 and the third is copy of the award under Section 11 of the Land Acquisition Act in Compensation Case No.14 of 1973 rendered on 19.2.1986. 6 This application has been opposed by the learned counsel for the respondents who has filed counter affidavit opposing the acceptance of the additional evidence. 7 Civil Application No.12957 of 1999 was moved on 3.11.1999 by the respondents seeking permission to make constructions and develop the suit land. 8 At first it is proposed to dispose of Civil Application No.5272 of 2000 which is an application under Order 41 Rule 27 of CPC moved by the appellant. Needless to say that the First Appeal was filed in the year 1988 whereas this application for additional evidence was filed by the appellant in June 2000. The three documents proposed to be tendered as additional evidence are dated 21.10.1986, 25.2.1999 and 19.2.1986 respectively. Zoning certificate dated 25.2.1999 may not be in the knowledge of the appellant when the appeal was filed but other documents could not escape the notice of the appellants. However, no party can be permitted to tender any additional evidence in appeal under Order 41 Rule 27 of the CPC as of right. Additional evidence in appeal can be accepted only in view of the provisions contained under Order 41 Rule 27 of CPC. It provides that the parties shall not be entitled to adduce additional evidence in appeal except in three cases mentioned under Rule 27 of Order 41 of CPC. The first case is where the Court, from whose decree the appeal is preferred, has refused to admit evidence which ought to have been admitted. This case is not attracted because it is not alleged by the appellants that these three documents were proposed to be tendered before the trial Court but it refused to accept the same. Consequently, clause (a) of Rule 27(1) of Order 41 of CPC does not apply. The second ground is where the party seeking to produce the additional evidence establishes that such evidence was not within his knowledge or could not be produced when the decree was passed by exercise of due diligence. The third ground is that additional documentary evidence or oral evidence can be admitted where such additional evidence is required by the appellate court to enable it to pronounce the judgement. Consequently, decision on this application was postponed and it was thought desirable that this application be disposed of along with appeal so that the entire evidence on record may be considered and it may be decided whether evidence on record is sufficient to enable the Court to pronounce effective judgment. If it is found that the evidence already on record is sufficient to enable the Court to pronounce effective judgement in appeal and the proposed documentary evidence is not going to turn the scale of decision in favour of one or the other party, there is no justification for admitting the additional evidence. The case of VORA IBRAHIMJI DOSAJI V. VORA IBRAHIM NOORBHAI MAKATI & BROS. reported in AIR 1999 Guj 101 can be referred. 9 The Apex Court in Arjan Singh v. Kartar Singh reported in AIR 1951 SC 193 has observed that Order 41 Rule 27 of CPC gives discretion to the appellate Court but the discretion given to the appellate Court under this provision to receive and admit additional evidence is not an arbitrary one but is a judicial one circumscribed by the limitations specified in that rule. If the additional evidence is allowed to be adduced contrary to the principles governing reception of such evidence , it will be a case of improper exercise of discretion and the additional evidence so brought on record will have to be ignored and the case has to be decided as if such evidence is not existing. 10 In the case of STATE OF U.P. V. MANBODHAN LAL reported in AIR 1957 SC 9012 the Apex Court has laid down that it is well settled that additional evidence should not be permitted at the appellate stage in order to enable one of the parties to remove certain lacunae in presenting its case at the proper stage and to fill in gaps. Of course, the position is different where the appellate Court itself requires certain evidence to be adduced in order to enable it to do justice between the parties. 11 Again in THE MUNICIPAL CORPORATION OF GREATER BOMBAY V. LALA PANCHAM AND OTHERS reported in AIR 1965 SC 1008 the Apex Court held that under Order 41 Rule 27 of CPC the appellate Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgement in a case. This provision does not entitle the appellate Court to let him fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing the lacunae in the evidence that the appellate Court is empowered to admit additional evidence and not for removing the lacunae in the case of the parties. 12 From the above and other catena of decisions on Order 41 Rule 27 of CPC it can be said that at the appellate stage additional evidence can be entertained by the appellate Court if there is some lacunae in evidence on record which requires clarification by additional evidence, may be oral or documentary evidence and such additional evidence is necessary for pronouncing effective judgement by the appellate Court and that it is not the right of, may be of the appellant or of the respondent to tender as of right additional evidence oral as well as documentary in appeal so as to fill in the lacunae in its case. Lacunae in the case of party can not be permitted to be removed by the appellate Court by accepting additional evidence. On the other hand, if there is some lacunae in the evidence already on the record which requires clarification in that event, certainly the appellate Court can accept additional evidence. 13 In view of the above guidelines we have considered the three documents proposed to be tendered as additional evidence and we are of the opinion that those documents are not such which will help this Court in pronouncing effective judgement. On the other hand, other oral and documentary evidence on record which has been referred to us in the course of the arguments in the appeal are sufficient for pronouncing effective judgement in appeal. Consequently, we do not find any merit in this civil application under Order 41 Rule 27 of the Civil Procedure Code which is hereby rejected. 14 We now proceed to examine the judgement of the trial Court rendered in the Civil Suit out of which First Appeal No.654 of 1998 has arisen. We have heard at length Shri Y.N. Oza, Senior Advocate, learned counsel for the appellants, and Shri J.M. Patel, learned counsel for the respondent. Shri Yatin Oza has argued that practically all the findings recorded by the trial Court are in favour of the appellants but the suit has been dismissed only on two grounds: the first is that no permission u/s 63 of the Bombay Tenancy and Agricultural Lands Act, 1948 was obtained and secondly that the land in dispute did not belong to defendants nos.1 and 2 rather the defendants nos.1 to 9 had share in the said land and it was an ancestral property. He further contended that no permission of urban land ceiling authorities is now necessary and it was incorrect that the permission was refused by the urban land ceiling authorities. He further contended that the finding of the trial Court that the plaintiffs were not ready and willing to perform their part of the obligation under the contract is also incorrect hence, the suit could not have been dismissed on this ground. 15 In our considered opinion, there are various grounds on which the suit of the plaintiffs-appellants for specific performance of the agrement to sell could not have been decreed. 16 The first ground is noncompliance of essential conditions of Section 16(c) of the Specific Relief Act. It provides that specific performance of a contract cannot be enforced in favour of a person 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 the performance of which has been prevented or waived by the defendant. From this provision it is clear that a person who fails to aver and prove that he has performed or has always been ready and willing and is still ready and willing to perform the essential terms of the contract is not entitled to a decree for specific performance of contract. It is essential that the plaintiff has to aver in the plaint that he has performed his part of the obligations under the contract or has always been ready and willing to perform his part of the contract. Readiness and willingness both have to be averred as well as proved by the plaintiff seeking a decree for specific performance. Even if there is averment about the plaintiffs' readiness to perform his part of the obligations under the contract but, there is omission or failure to allege in the plaint willingness of the plaintiff to perform his part of the obligation under the contract, the suit for specific performance is bound to be dismissed. The law requires that there should be allegation in the plaint regarding readiness and willingness of the plaintiff to perform his part of the obligation under the contract and this readiness and willingness should have always been shown by the plaintiff. In addition to such allegation there should be specific allegation and there should be specific proof by the plaintiff that he has been ready and willing to perform his part of the obligation under the contract. Again if in evidence mere readiness of the plaintiff is established but not willingness the suit for a specific performance is bound to fail. Similarly, if the willingness of the plaintiff to perform his part of the obligation is proved but not readiness, in that case, no decree for specific performance can be granted. In addition to this, explanation (ii) of Section 16 (c) of the Specific Relief Act provides that for the purposes of clause (c) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. In the light of these provisions, we have examined the allegations made in the plaint whose translated copy is in the compilation Annexure-I. The plaint contains only 7 paragraphs. We have carefully examined this plaint but we are at a loss to find that there is no allegation in the plaint that the plaintiffs have performed their part of the obligation under the contract or that they have always been ready and willing to perform their part of the contract. In the absence of such an averment in the plaint, the suit for a specific performance is liable to be dismissed. The only witness of the plaintiffs Manilal Shah in his deposition cannot cure this fatal defect. It is settled law that in the absence of pleadings on a point no evidence can be permitted to be adduced by a party on a fact which is not pleaded in the plaint. Since the plaintiff's readiness and willingness to perform their part of the obligation under the contract is not alleged in the plaint, no evidence on the point could be accepted by the Court below. Mere casual statement of PW No.1 Manilal is not strict compliance of the provisions of Section 16(c) of the Specific Relief Act. 17 It may also be mentioned that the trial Court while deciding issue no.5 has recorded a finding that the plaintiff had failed to prove their readiness and willingness to perform their part of the contract. Issues nos.2, 3, 5, 6 and 7 were dealt with together by the trial Court. The said finding of the trial Court does not suffer from any misappreciation of the evidence on record. Shri Oza, learned counsel for the appellants has however drawn our attention to pages nos.145, 146, 147 and 149 of the compilation and argued that the plaintiff's willingness and readiness to perform their part of the obligation under the contract is established from these correspondence and othercorrespondence as well. However, a perusal of these letters would show that actually an advocate was appointed by the plaintiffs to seek necessary permission of the Urban Land Ceiling authorities and whenever the said advocate demanded expenses for the purpose, only part payment was made by the plaintiffs and not the entire amount demanded. From the cross-examination of P.W.No.1 Manilal Bapulal Shah it further transpires that the so called readiness and willingness on the part of the plaintiffs to perform their part of the obligation under the contract was not real but it was imaginary. He admitted that he did not meet the advocate Ashokbhai Bhukubhai Patel for obtaining NA permission. He further admitted that he never enquired what work was being done by the advocate. He further admitted that he did not pay Rs.1000/- as mentioned in Exh.105. At one stage he had admitted that he had not given any amount to the advocate. Likewise he admitted that he had not gone to the office of Ashokbhai Bhikubhai Patel to enquire about the progress in the matter of getting the permission from the Urban Land Ceiling Authority and he had not engaged anybody else for the said purpose. Likewise he admitted that he did not initiate any proceedings for getting the N.A. permission. 18 From these admissions it is further clear that he was not serious nor was ready and willing to perform his part of the obligations under the contract. On this ground alone the suit could have been dismissed and was rightly dismissed by the Trial Court. 19 The second ground on which the suit could be dismissed is to be found under Section 20(b) of the Specific Relief Act. The jurisdiction of the Court to decree the suit for specific performance is discretionary and the Court is not bound to grant such relief merely because it is lawful to do so, but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. Thus, what is provided under Section 20(1) of the Specific Relief Act is that the jurisdiction of a Court to decree the suit for specific performance is discretionary. However, the discretion has to be exercised judicially based on sound and settled judicial principles and it should not be arbitrarily exercised. Sub-section (2) of Section 20 gives certain illustrations in which the Court may properly exercise the discretion not to decree a suit for specific performance. One of the grounds is that where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract though not voidable gives the plaintiff an unfair advantage over the defendant. In the case before us, the contract certainly gave undue advantage to the plaintiffs and this undue advantage was certainly clear inasmuch as there is cogent evidence on record that the land which is subject matter of the agreement to sell was ancestral land in which all the defendants had a share and not that it was sole property of the defendants nos.1 and 2. Consequently, if by such agreement the plaintiffs got a right to get the sale deed executed in respect of shares of the defendants nos.3 to 9 who are not signatories to the agreement to sell, it can safely be said that the plaintiffs had got an undue advantage at least over the defendants nos.3 to 9 and as such the decree for specific performance can be refused on this ground. Likewise, under subclause (c) of clause (2) of Section 20 of the Specific Relief Act decree for a specific performance can be refused where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance. In the case before us the agreement to sell was executed only by the defendants nos.1 and 2. No doubt, it is mentioned in the agreement that "it shall be binding on us, heirs, guardians and executors" but this recital in the agreement cannot actually bind the defendants nos.3 to 9 who are the sons of the defendants nos.1 and 2. Shri Oza laid much emphasis upon this recital. But, in our opinion, this recital is ornamental and merely by this recital rights and interests of defendants nos.3 to 9 in the ancestral property cannot be taken away. If the defendants nos.3 to 9 have interest in the ancestral property, it would be inequitable to enforce specific performance of such an agreement against their wish more particularly when they are not signatories to the agreement to sell. Thus, on these two grounds the discretion could have been exercised by the trial Court though the trial Court has not mentioned the provisions of Section 20 of the Specific Relief Act in its judgement. However, the judgement can be supported with Section 20 of the Specific Reliefs Act. 20 There is yet another ground on which the agreement in question was handicapped of being a specifically performed and it is to this effect that the disputed property is established to be ancestral property in which all the defendants have share. Since the agreement was executed by the defendants nos.1 and 2 only and the remaining defendants have not signed the same, no decree for specific performance can be passed. Shri Oza however contended that fraud was practised upon the plaintiffs and in the agreement it was clearly mentioned that the property