1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT Bheru Singh Vs. Narpat Singh S.B.CIVIL REGULAR SECOND APPEAL NO.68/1990 Against the judgment and decree dated 16.7.1990 passed by the Addl.District Judge, Bali in Civil Appeal (Decree) No.4/87 against the judgment and decree dated 8.9.1987 passed by the Civil Judge, Bali in Civil Original Suit No.34/83. Date of Judgment : 14th March, 2005 PRESENT HON'BLE MR.JUSTICE DINESH MAHESHWARI Mr.B.R.Mehta for the appellant Mr.Rajesh Choudhary for Mr.Suresh Shrimali for the respondent BY THE COURT: Suit for specific performance of contract being Civil Original Suit No.34/1983 filed on 4.5.1983 by the plaintiff – Narpat Singh was decreed after trial by the Civil Judge, Bali (District Pali) by the judgment and decree dated 8.9.1987. The appeal preferred by the defendant-appellant Bheru Singh being Civil Appeal (Decree) No.4/1987 was dismissed by the Addl.District Judge, Bali on 16.7.1990. Hence, the unsuccessful defendant in two courts below 2 has preferred this second appeal under Section 100 of the Code of Civil Procedure (CPC). The present second appeal was admitted by this Court on 12.10.1990 formulating the following substantial question of law,- “Whether the lower courts have seriously erred in holding that the suit was within limitation? Although the question of law so formulated by this Court requires consideration of the question of limitation only, however, the learned counsel for the appellant urged at the time of hearing in the alternative that in the facts and circumstances of this case, the question as to whether the plaintiff has been able to establish his readiness and willingness to perform his part of the contract and further question as to whether the equitable relief of specific performance could be granted to the plaintiff who has belatedly approached the court by way of the suit also require consideration. In order to consider the submissions at bar, it shall be useful to refer to the facts available on, and the circumstances emerging from the record. 3 Although the plaintiff has sued as Narpat Singh son of Hamir Singh Rajput and defendant has been shown as Bheru Singh son of Devi Singh Rajput but the fact remains that both the plaintiff and the defendant are natural born sons of the same father Devi Singh. Briefly put, the plaintiff averred in the plaint that a house (referred as `Rawala') was situated at Mokampura, Tehsil Bali, in which, he was having ownership rights over half of the portion and the remaining half was of the ownership of Smt.Mohan Kanwar widow of Hamir Singh. The said Smt.Mohan Kanwar gifted her property to the defendant and in this manner, the defendant acquired ownership rights over the half portion of the Rawala. In the year 1973, various disputes arose between the plaintiff and the defendant relating to various immovable properties and ultimately with the intervention of the respectable persons of the community, on 14.11.1973, all the disputes were settled regarding which a document was executed between the mother of the plaintiff Smt.Ugam Kanwar and the defendant. The plaintiff further averred that on the same day (i.e. 14.11.1973), a separate agreement was executed between the plaintiff and the defendant, according to which, the half portion of 4 the ownership of the defendant in the said Rawala was agreed to be sold by the defendant to the plaintiff for Rs.4000/-. The defendant received Rs.100/- towards sale consideration on the same day and for payment of the remaining amount of Rs.3900/- and for registration (of the document), 12 months' period was fixed. The plaintiff averred that in accordance with the agreement, he requested the defendant several times to complete the registration as he was ready to make payment of the sale consideration but the defendant kept on avoiding. When all the efforts on his part failed, then before adopting legal proceedings, he made efforts for resolution of the dispute with the intervention of the respectable persons sympathetic to both the parties. Thereupon, on 3.12.1975, in the presence of respectable persons, a settlement was arrived at, according to which, new terms of the transfer of the half share of the house (Rawala) on the basis of the agreement dated 14.11.1973 were settled and the sale consideration was enhanced from Rs.4000/- to Rs.7000/-. Apart from the amount of Rs.100/- paid on 14.11.1973, the plaintiff further made cash payment of Rs.2900/- on 3.12.1975 and it was decided that upon payment of the remaining amount of Rs.4000/- by the plaintiff to the defendant, the sale deed of the said half portion would be executed and got registered. In accordance with the said revised terms, the defendant on 3.12.1975 executed and handed over 5 a fresh agreement in favour of the plaintiff. After the aforesaid averments relating to the facts about coming into existence of the agreements, the plaintiff averred that the defendant did not make any attempt to perform the agreement dated 3.12.1975 and that from the first week of February, 1983, the plaintiff was regularly trying that the defendant would accept the remaining sale consideration of Rs.4000/- and get the sale deed registered but the defendant was not paying any heed. According to the plaintiff, several attempts were made through respectable persons but the defendant never got ready to perform the agreement dated 3.12.1975, whereas, the plaintiff always remained ready and willing to perform his part of the conditions. The plaintiff then served a notice through his lawyer which was received by the defendant on 18.2.1983 but the defendant neither informed for completion of the proceedings for registration nor replied the notice. The plaintiff further averred that he has always remained ready and willing to make payment of the remaining amount of sale consideration in accordance with the agreements dated 14.11.1973 and 3.12.1975; he was and is ready and willing to purchase the half portion of Rawala of the ownership of the defendant but the defendant was intentionally not performing the agreement and hence 6 the suit was required to be filed. For the purpose of limitation, the plaintiff pleaded that the suit was within limitation in accordance with Article 54 of the Limitation Act, because the defendant has not agreed to perform the agreement despite receiving of the notice on 18.2.1983. The plaintiff prayed for a decree for specific performance of the agreement and for payment of the amount of Rs.4000/- or as determined by the court as due to be paid by him to the defendant and for delivery of the documents of title and for possession. The defendant in his written statement did not dispute particulars of the property nor disputed the averments regarding respective ownership rights of the parties. However, regarding the averments in the plaint which related to coming into existence of the agreements, the defendant came out with a flat denial of existence of any such agreements. The defendant, on the contrary, averred that no dispute existed between the plaintiff and the defendant in the year 1973 but the dispute was between the mother of the plaintiff Smt.Ugam Kanwar and the defendant and on 14.12.1973 the settlement was arrived at between Ugam Kanwar and himself which related to the agriculture land. On that day, no agreement was executed between the plaintiff and the defendant. 7 According to the defendant, he signed the stamp paper on being informed that it was containing the recitals about the settlement. The defendant was not literate and only put signatures. He never executed any agreement in respect of the house with the plaintiff. All the averments regarding the agreement, of sale consideration, and of time limit of 12 months were denied. The averments in the plaint relating to the avoidance of performance were also denied with the submissions that he entered into a settlement with Ugam Kanwar only and when he never entered into any agreement with the plaintiff for sale, the question of any avoidance did not arise. The averments relating to second agreement dated 3.12.1975 were also specifically denied by the defendant and he denied settling of any new terms. The defendant alleged that in the year 1975, the plaintiff and the defendant were at hot terms and not talking to each other. There was no sale consideration of Rs.4000/- nor it was increased to Rs.7000/- as the parties were not on talking terms. The defendant denied payment of Rs.2900/- by the plaintiff and submitted that he was not in need of money and has continued to remain in possession of half porton of Rawala from the time it was gifted to him and partition at the site has of course not been carried out between the mother of the plaintiff and the defendant but the parties were occupying the portions as per their possession. 8 The averments regarding performance were also similarly denied with the submissions that when no agreement was entered into, the question of performance did not arise. According to the defendant, the notice was of course received but the same was absolutely wrong and baseless and the same was got replied through lawyer. With these averments, the right of specific performance as claimed by the plaintiff was denied. Regarding the question of limitation, it was averred that Article 54 of the Limitation Act was not applicable nor according to Article 54, the suit was within limitation. It was also averred that the half portion of the Rawala was of the valuation of Rs.1,50,000/- and even ten years' before, it was of the value of Rs.50,000/-. A property of Rs.50,000/- would not be sold by the defendant for a meagre amount. The suit valuation and the jurisdiction of the court were also challenged. In the additional submissions, the defendant repeated the averments that he never asked for any stamp for sale agreement nor asked the petition writer to scribe any agreement. He signed the stamp on the belief that it related to the settlement regarding the land. The defendant further averred that contract was unfair on the very face of it nor was true and valid but was unjust and 9 unconscionable. According to the defendant, he had no other place of residence and was having his family and cattles and selling of Rawala was entirely impossible. However, the status of the parties has been partly described by the defendant in the manner that Thakur Hamir Singh expired on Shravan Sudi 1, Svt.2022 leaving behind two wives, Mohan Kanwar being elder one and Ugam Kanwar, younger and both were having no issues. Both wives were living separate according to their possession and were having half share each in the property. The defendant-Bheru Singh was taken in adoption by Mohan Kanwar on 17.9.1967 but upon the dispute arising, Case No.87/1967 was tried in the Court of ADJ, Sirohi, then Mohan Kanwar gifted undivided half property of her husband to the defendant on 19.12.1970. The defendant submitted that right from the beginning, the conduct of the parties was such that existence of anything like disputed contract which is unfair and unjustifiable cannot be believed and such contracts were not enforceable. On the pleadings of the parties, the learned trial court framed eight issues. Issue No.1 related to the question about the existence of the agreement dated 14.12.1973 and payment of sale 10 consideration of Rs.100/- by the plaintiff. Issue No.2 related to the question of existence of the agreement dated 3.12.1975 for Rs.7000/- and further payment of Rs.2900/- by the plaintiff. Issue No.3 was framed on the question as to whether the plaintiff was and is ready and willing to purchase the house in accordance with the agreements dated 14.11.1973 and 3.12.1975? Issue No.4 related to the question of limitation, issue no.5 to the question of suit valuation and jurisdiction and issue no.6 about the claim of compensatory costs by the defendant. Issue No.7 was framed on the question if the suit was not maintainable for the reasons stated in para 2 and 3 of the additional pleas by the defendant and issue No.8 relating to the relief. In oral evidence, the plaintiff examined PW-1Dhanraj, petition writer and scribe of the first agreement dated 14.11.1973; PW-2 Javerchand one of the witnesses to the second agreement dated 3.12.1975; PW-3 Ranjeet Singh scribe of second agreement dated 3.12.1975; PW-4 Hamir Singh one of the witnesses to the first agreement dated 14.11.1973; and PW-5 Narpat Singh, the plaintiff himself. On the other hand, the defendant – Bheru Singh examined himself as DW-1 and produced DW-2 Bhima Ram and DW-3 Mana Ram and closed the evidence. In the documentary evidence, the 11 plaintiff produced on record the first agreement dated 14.11.1973 as Ex.1; the second agreement dated 3.12.1975 as Ex.2; the notice dated 16.2.1983 as Ex.3 and the acknowledgment thereof as Ex.4. The defendant on the other hand produced undated reply to the notice sent to the lawyer of the plaintiff as Ex.A/1 and his acknowledgment as Ex.A/2. The learned trial Judge after hearing the parties finally proceeded to decide the issues involved in the case by his judgment dated 8.9.1987. After consideration of the relevant evidence, the learned trial Judge found that although the defendant has denied the execution of the agreement dated 14.11.1973 Ex.1 but has placed nothing on record by which execution of the agreement Ex.1 could be disbelieved. Issue No.1 was decided in favour of the plaintiff. Similarly with reference to the evidence on record, the learned Judge found that the plaintiff has proved the agreement Ex.2 and the defendant although coming out with a denial has not produced any evidence for which execution of the agreement Ex.2 could be disbelieved. Issue No.2 was also decided in favour of the plaintiff. On issue No.3 regarding readiness and willingness of the plaintiff to perform his part of the agreement, the learned Judge found that the plaintiff has categorically asserted that he was always ready and 12 willing to purchase the half portion of the house from Bheru Singh and was still ready to purchase and was ready to make payment of the amount. The learned Judge found that nothing contrary to the assertion of the plaintiff has been stated by the defendant, hence issue No.3 was also decided in favour of the plaintiff. It was contended on behalf of the defendant on Issue No.4 that suit was required to be filed within three years as provided under Article 54 and the suit for specific performance of the agreement dated 3.12.1975 having been filed on 4.5.1983 was barred by limitation. The learned trial Judge observed that under Article 54 when no date for performance has been fixed in the agreement, then the limitation would start only from the date the plaintiff would have the knowledge of the fact that the defendant has denied the specific performance. The learned Judge distinguished the cases cited before him and found that the payment of Rs.100/- and then Rs.2900/- in the present case was established and the defendant has failed to show any such fault on the part of plaintiff by which he has made inordinate delay or that he was not ready to complete the agreement. Issue No.4 was also decided in favour of the plaintiff. Issue No.5 relating to the question of valuation and jurisdiction was also decided against the defendant for want of any particulars and any evidence. Issue No.6 was not pressed by the defendant. On 13 issue No.7, the learned Judge observed with reference to Section 20 of the Specific Relief Act that mere inadequacy of consideration or mere fact that contract was onerous to the defendant would not be deemed to constitute unfair advantage or hardship. The learned Judge also observed that there was no recital about any alleged hardship at the time of execution of the agreement and now when the agreement has been proved, the reference to the hardship was entirely unjustified. In view of the decisions on the issues involved in the case, the plaintiff was found entitled for the decree of specific performance. The learned trial court accordingly decreed the suit directing that upon payment of Rs.4000/- within three months by the plaintiff, the defendant would get the registration carried out on the plaintiff making payment of the registration charges and to hand over the vacant possession of the disputed property after registration. The judgment and decree aforesaid dated 8.9.1987 by the Civil Judge, Bali were assailed in Appeal No.4/1987 by the defendant – Bheru Singh before the Addl.District Judge, Bali who proceeded to decide the appeal after hearing the parties on 16.7.1990. The contentions which were made before the learned Appellate Judge deserve to be noticed. On behalf of the defendant – 14 appellant in the said appeal, the factum of execution of the agreement Ex.1 was not disputed. The first contention was raised to the effect that execution of the second agreement Ex.2 was not proved and the same was not on stamp paper, therefore, the decree of specific performance could not be granted. The learned Judge referred to the relevant evidence and while rejecting this contention affirmed the finding that agreement Ex.2 was executed by the defendant in favour of the plaintiff after receiving Rs.2900/-. The second contention raised on behalf of the appellant was to the effect that as the plaintiff has admitted that the second agreement Ex.2 was executed on the basis of the first agreement Ex.1 and as the agreement was to be performed within 12 months according to Ex.1, therefore, the time was an essential element and therefore this agreement cannot be performed after 12 months. A corollary of this second contention was also raised to the effect that the plaintiff was to perform the agreement within 12 months but he failed to do so and that also shows that he was not ready to perform his part of the agreement, hence for want of compliance of Sec.16 (c) of the Specific Relief Act, the suit be dismissed. 15 The aforesaid two inter-connected contentions were also considered by the learned Appellate Judge and with reference to the terms of two agreements Ex.1 and Ex.2, the learned Judge observed that time was not of the essence of the contract specifically for three reasons, first that agreement related to immovable property; secondly, contract was to be completed within 12 months under Ex.1 but recital in Ex.2 was to the effect that whenever Rs.4000/- would be paid, registration would be carried out, therefore, no time limit was fixed; and thirdly, the appellant never served any notice for limiting the time for performance. Referring to the decision of Hon'ble Supreme Court in AIR 1967 SC 868 (Gomathinayagam Pillai and ors. Vs. Palaniswami Nadar) cited on behalf of the defendant – appellant, the learned Judge found that principle enunciated was to the effect that if the time was essential and is not borne out from the agreement, then time would not be treated to be of essence. Ancillary contention was also dealt with by finding that the time limit of 12 months was not fixed in the agreement Ex.2 but the agreement was for executing the sale deed on payment of the amount, therefore, not asking for registration within 12 months was of no effect. While referring to the pleadings and evidence, the learned Judge found proved that the respondent-plaintiff was always ready and willing to perform his part of the contract and was still 16 ready to do so. No other point was pressed before the learned Judge. Therefore, the learned appellate Judge ordered dismissal of the appeal with costs and affirmed the decree passed by the trial court. Against the judgment and decree dated 16.7.1990 passed by the learned Addl. District Judge, Bali, the defendant-appellant has preferred this second appeal which has been admitted while formulating substantial question of law as noticed hereinbefore. Making submissions on behalf of the appellant, the learned counsel strenuously contended that the present suit ought to have been dismissed as barred by limitation for the reason that the overall conduct and relationship of the parties show that even if the second agreement on 3.12.1975 was executed, the same was in continuation of the first agreement dated 14.11.1973 and as the period of 12 months was fixed in the first agreement dated 14.11.1973, the same became an essential ingredient of the second agreement also and for the purposes of limitation, three years' period under Article 54 of the Limitation Act ought to be counted beginning after 12 months of the agreement Ex.2, i.e. from 3.12.1976 and therefore the suit for specific performance filed on 4.5.1983 was barred by limitation. 17 The learned counsel further urged another question for consideration of this Court on the anvil of the submissions that for being entitled to a decree for specific performance of contract, the plaintiff was required to show that he was always ready and willing to perform his part of the contract right from the day of the agreement on 3.12.1975 upto the time of filing the suit and uptil the date of decree. The learned counsel contended that there is nothing on record to establish readiness and willingness from 3.12.1975 for a long period of about more than seven years when the appellant served a notice in the month of February, 1983. The learned counsel submitted that the relief of specific performance being an equitable relief ought to have been refused in this case as the plaintiff approached the Court after an inordinate delay. The learned counsel cited and relied upon N.P.Thirugnanam (D) by LRs. Vs. Dr.R.Jagan Mohan: AIR 1996 SC 116 and K.S.Vidyanadam and others Vs. Vairavan:AIR 1997 SC 1751 in support of his contentions. Per contra, the learned counsel for the respondent submitted that the only substantial question of law formulated in this case relates to the question of limitation. Learned counsel submitted that only second part of Column-III of article 54 of the Limitation Act is applicable to the present case because no time limit for performance 18 was fixed in the agreement Ex.2. The learned counsel submitted that in the facts and circumstances of the case, the plaintiff would be deemed to have notice of refusal of performance only from 18.2.1983 when the defendant received notice and yet did not come forward to perform the contract and the suit was filed within three months thereafter and the same was clearly within limitation. The learned counsel further urged that a comprehensive look at the conduct of the parties and the two agreements makes it clear that the time limit of 12 months cannot be read in the second agreement and time was not of the essence of the contract. The learned counsel supported the considerations adopted by the learned courts below and further submitted that other substantial questions of law do not arise in this case and the contentions by the appellant on readiness and willingness deserve to be rejected. The learned counsel placed reliance on the decisions in K.Sambasiva Rao Vs. P.Bangaru Raju : AIR 1985 Andhra Pradesh 393, Mithu Khan Vs. Ms. Pipariyawali and others: AIR 1986 Madhya Pradesh 39, and Sri Babu Ram @ Durga Prasad Vs. Sri Indra Pal Singh (dead) by LRs : 1998 DNJ (SC) 332. Having given a thoughtful consideration to the rival contentions and having scanned through the entire record, this Court 19 is clearly of the opinion that the present appeal is totally devoid of substance and deserves to be dismissed with costs. The provisions and principles of law applicable to the case may be noticed. Article 54 of the Limitation Act provides for the limitation in filing of a suit for specific performance as under:- Description of Period of Limitation Time from which suit period begins to run 54.For specific Three years The date fixed for the performance performance, or if no of a contract such date is fixed, when the plaintiff has notice that performance is refused A suit for specific performance of contract is essentially governed by the provisions contained in Chapter II of Part II of the Specific Relief Act, 1963 (`the Act'). For the present purposes, suffice to notice