Regular Second Appeal No. 3679 of 2005 1 In the High Court of Punjab and Haryana, at Chandigarh. Regular Second Appeal No. 3679 of 2005 Date of Decision: 18.11.2008 Smt. Muthari Devi and Others …Appellants Versus Dharambir Singh …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Bijender Dhankar, Advocate for the appellants. Mr. Rakesh Nehra, Advocate for the respondent. Kanwaljit Singh Ahluwalia, J. (Oral) Dharambir Singh, respondent/plaintiff had instituted a suit for possession by way of specific performance, with alternative decree for recovery of Rs.1,00,000/- alleging that Maha Singh, husband of appellant No.1, had executed an agreement to sell on 2.11.1999. This agreement was registered, qua sale of land comprised in Khewat No. 262, details and description of which have been given in the plaint. The land to be purchased was 4 kanals and the consideration settled between the parties was Rs.2,25,000/-. Rs.50,000/- had been paid as earnest money. It was stated in the plaint that there was a loan of Rs.1,99,000/- taken by Maha Singh from the Bank of India, Patoda, After the death of Maha Singh, his legal representatives had inherited the Regular Second Appeal No. 3679 of 2005 2 property and they were impleaded as defendants. The date of execution of sale deed was fixed on or before 30.6.2000. It was stated in the plaint that cause of action arose in favour of the plaintiff and against the defendants firstly on 2.11.1999 when the agreement was executed and secondly on 30.6.2000 when the plaintiff filed an affidavit before the Sub Registrar, thirdly on 20.7.2000 when the legal notice was served upon the defendants and fourthly when the defendants finally refused to pay Rs.1,00,000/-, double of the earnest money as per the terms & conditions of the agreement to sell dated 2.11.1999 (this part of the pleadings impliedly and safely can be construed to say that the plaintiff was ready and willing to perform his part of contract as he had been approaching the defendants and the authorities). Notice of the suit was issued. The defendants caused their appearance and filed joint written statement. They raised preliminary objection regarding locus standi; cause of action and maintainability of the suit as true facts have been concealed. It was stated that instead of Rs.50,000/-, only Rs.10,000/- was paid as earnest money. On merits, it was stated that on 2.11.1999 only Rs.10,000/- was paid and it was agreed that rest of the amount of Rs.40,000/- would be paid on 3.11.1999 but the same was not paid. It was further stated that agreement to sell is a false and bogus document and, therefore, defendants are not bound by the terms & conditions. They have stated that the plaintiff was not ready to perform his part of contract on stipulated date and the affidavit filed by the plaintiff before the Sub Registrar is a bogus and a false document. No replication was filed. Regular Second Appeal No. 3679 of 2005 3 Learned trial Court had drawn the following issues:- 1. Whether Maha Singh S/o Talewar has executed an agreement dated 2.11.1999 bearing No. 3529 in connection with suit land with the plaintiff as alleged? OPP 2. If issue No.1 is proved, whether the plaintiff is entitled for possession of the suit land by way of specific performance with the alternative relief of decree for recovery of Rs.1, lacs as alleged? OPD 3. Whether the plaintiff has no locus standi to file the present suit? OPD 4. Whether the plaintiff has no cause of action to file the present suit? OPD 5. Whether the plaintiff has not come in the Court with clean hands? OPD 6. Whether suit is not maintainable in the present form? OPD 7. Relief. Plaintiff himself appeared as PW.1 and examined Daya Nand Lamberdar as PW.2. Defendants examined Jit Singh as DW.1, Krishan Kumar as DW.2 and Bahadur Singh as DW.3. Parties to the suit also relied upon documents. The whole tenor and the thrust on the defendants are that only Rs.10,000/- has been paid and remaining Rs.40,000/- was not paid, therefore, no credence can be given to the agreement to sell. Regular Second Appeal No. 3679 of 2005 4 Plaintiff had relied upon Ex.P4 affidavit produced by him before the Sub Registrar. Affidavit Ex.P4 was attested by the Executive Magistrate. It was stated therein that on 30.6.2000, plaintiff was present along with balance sale consideration and thus he was ready and willing to perform his part of the contract. Learned trial Court decreed the suit of the plaintiff against the appellants/defendants. Aggrieved against the same, the appellants/defendants filed an appeal. Learned Appellate Court below also did not find any merit in the appeal and the same was dismissed. Mr. Bijender Dhankar, Advocate, appearing on behalf of the appellants before me, has vehemently canvassed that in the plaint it has been nowhere pleaded that the plaintiff was ready and willing to perform his part of the contract. He has further stated that this is necessary ingredient. He has placed reliance upon judgment of Hon'ble the Apex Court rendered in Umabai & Another v. Nilkanth Dhondiba Chavan (Dead) by Lrs. & Another 2005(4) Judgment Today 292 to contend that in paras No.24, 25 & 26 of this judgment, it has been specifically written that it is mandatory that specific pleadings be made in the plaint that the plaintiff has been ready and willing to perform his part of contract. Paras No.24, 25, & 26 of the judgment rendered in Umabai's case (supra) read as under:- “24. It is now well-settled that the conduct of the parties, with a view to arrive at a finding as to whether the plaintiff-Respondents were all along and still are ready and willing to perform their part of contract as is mandatorily required under Section 16 Regular Second Appeal No. 3679 of 2005 5 (c) of the Specific Relief Act must be determined having regard to the entire attending circumstances. A bare averment in the plaint or a statement made in the examination-in-chief would not suffice. The conduct of the plaintiff-Respondents must be judged having regard to the entirety of the pleadings as also the evidences brought on records. 25. In terms of Form Nos. 47 and 48 appended to Appendix A of the Code of Civil Procedure, 'the plaintiff must plead that he has been and still is ready and willing specifically to perform the agreement on his part of which the defendant has had notice' or 'the plaintiff is still ready and willing to pay the purchase-money of the said property to the defendant'. The offer of the plaintiff in the instant case is a conditional one and, thus, does not fulfill the requirements of law. In Bank of India (Supra), it was held: “...It is true that plaintiff 1 stated that he was buying for himself, that he had not sufficient ready money to meet the price and that no definite arrangements had been made for finding it at the time of repudiation. But in order to prove himself ready and willing a purchaser has not necessarily to produce the money or to Regular Second Appeal No. 3679 of 2005 6 vouch a concluded scheme for financing the transaction. The question is one of fact and in the present case the appellate Court had ample material on which to found the view it reached...” 26. The said decision was, thus, rendered on its own fact. Such a conclusion was arrived at having regard to the fact that ample material had been brought on records. There must, thus, be some evidence to show that the plaintiff could arrange for the amount stipulated for payment to the vendor as and when called upon to do so. In this case no such evidence was disclosed”. The mandate of the judgment is that the conduct of the plaintiff/respondent must be judged having regard to the entirety of the pleadings as also to the evidence brought on record. It has been further held that whether the plaintiff has been ready and willing to perform his part of contract is to be determined having regard to the entire attending circumstances. Guided by the above said ratio, a part of the pleadings made in the plaint, that the plaintiff had approached the defendants, had gone to the Sub Registrar on the date fixed, furnished his affidavit and thereafter issued a notice to them to execute sale deed, is sufficient to infer that the plaintiff was ready and willing to perform his part of contract. Not only this has been pleaded, this is also proved by examining the witnesses that on the date when the agreement to sell was to be executed, he was possessed of sufficient amount, and he had Regular Second Appeal No. 3679 of 2005 7 approached the Sub Registrar. In the written statement, appellants/defendants have taken a plea that instead of Rs.50,000/- as earnest money, only Rs.10,000/- has been paid as earnest money. This fact has been stated only as bald oral assertion. Plaintiff's evidence and the documents i.e. agreement to sell which have been proved by the attesting witness have been accepted by the two Courts below that the amount of Rs.50,000/- was paid as earnest money. Evidence has been appreciated by the two Courts below and concurrent finding has been recorded. Therefore, there is nothing in this appeal for which this Court could entertain the same and there being no merit, the same is dismissed. Learned counsel for the appellants/defendants though has formulated a question of law but the same is not applicable to the facts of the case and hence, the present appeal is dismissed. (Kanwaljit Singh Ahluwalia) Judge November 18, 2008 “DK”