Regular Second Appeal No. 4969 of 1999(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 4969 of 1999(O&M) Date of Order: September, 2009 Gurnam Singh ....Appellant Versus Jagir Singh ..Respondent CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. A.S.Jattana,Advocate for the appellant. Mr. S.K.Sandhir, Advocate for the respondent. RAJIVE BHALLA, J. The appellant, challenges the judgment and decree dated 30.09.1999, passed by the District Judge, Patiala, accepting the appeal filed by the respondent, reversing the judgment and decree passed by the Civil Judge (Junior Division), Patiala, dated 21.01.1997. The plaintiff/appellant filed a suit for possession by specific performance of an agreement, dated 29.03.1990, executed by the respondent for sale of land measuring 11 bighas 10.5 biswas for a total consideration of Rs.1,58,864.51 paise. The appellant alleged that a sum of Rs.40,000/- was paid as earnest money and it was agreed that the sale deed would be executed and registered on 15.06.1990. Though the appellant appeared before the sub-registrar on 15.06.1990, along with the balance sale consideration, the respondent did not turn up to execute the sale deed. The appellant, therefore, marked his presence with the sub registrar and thereafter served a legal notice upon the respondent calling upon him to execute the sale deed but the respondent has failed to execute the sale deed. Regular Second Appeal No. 4969 of 1999(O&M) -2- The respondent filed a written statement admitting the execution of the agreement to sell but pleaded that he requested, the appellant to get the sale deed executed before 15.06.1990, but the appellant refused as he did not have sufficient funds. It was asserted that as the appellant was not ready and willing to perform his part of the contract, the suit should be dismissed. It was further pleaded that the respondent is a co-sharer to the extent of ½ share and, therefore, cannot be called upon to execute the sale deed with respect to the entire suit land. . The appellant filed a replication controverting the allegations in the written statement. On the basis of the pleadings, the trial court framed the following issues:- “1. Whether the defendant has committed the breach of contract dated 29.03.1990? 2. Whether plaintiff has been and is still ready and willing to perform his part of the contract?OPP 3. Whether plaintiff is entitled to a decree for specific performance?OPP 4. Whether suit is not maintainable in the present form?OPD 5. Whether suit is hit by section 12 of the Specific Relief Act?OPD 6. Relief.” After considering the pleadings, the evidence adduced and the arguments addressed, the trial court decreed the suit by holding that as the agreement stands admitted and the appellant has proved his readiness and willingness to perform his part of the contract, he is entitled to a decree of specific performance. The trial court also held that the respondent had fabricated an application, showing his presence before the sub-registrar on 15.06.1990. Regular Second Appeal No. 4969 of 1999(O&M) -3- Aggrieved by the aforementioned judgment and decree, the respondent filed an appeal. Vide judgment and decree dated 30.09.1999, the District Judge, Patiala, accepted the appeal, reversed the judgment and decree passed by the trial court and dismissed the suit. The first appellate court held that as the appellant has failed to prove that he was and is ready and willing to perform his part of contract, he is not entitled to the relief of specific performance. It was held that despite pleadings to that effect, the appellant had failed to prove that he had called upon the respondent to execute the sale deed or served any notice to that effect. However, while accepting the appeal, the first appellate court directed refund of earnest money to the appellant. Counsel for the appellant submits that the agreement to sell, the receipt of earnest money and the date for execution of the sale deed have been admitted by the respondent. The respondent alleges that the appellant refused to get the sale deed executed, prior to 15.06.1990, as he did not possess sufficient funds. The respondent has, however, failed to substantiate this averment by leading any evidence. The first appellate court, therefore, had no jurisdiction to interfere with the discretion exercised by the trial court, in decreeing the suit. It is further argued that the mere fact that the appellant failed to prove the service of a notice of demand or that the suit was filed after some delay, though within limitation, are irrelevant as the execution of the agreement, and the receipt of earnest money are admitted. Counsel for the respondent, on the other hand, submits that the impugned judgment does not suffer from any error or raise any substantial question of law. It is submitted that the first appellate court rightly reversed the judgment and decree passed by the trial court as the appellant has failed to prove that he was and is ready and willing to perform his part of the contract. The appellant has failed to prove the averment that he served Regular Second Appeal No. 4969 of 1999(O&M) -4- a legal notice calling upon the respondent to execute the sale deed. The first appellate court, therefore, rightly drew an inference that the appellant was not ready and willing to perform his part of the contract. It is further argued that the relief for specific performance is discretionary. The mere fact that the agreement stands proved does not necessarily entitle a proposed vendee to claim, as a matter of right, that the suit for specific performance be decreed. Counsel for the appellant has framed the following questions of law:- “1 Whether perfect and well reasoned judgment passed by learned trial court can be set aside on the filmsy grounds? 2. Whether in the given facts and circumstances especially when execution of the agreement to sell and consideration admitted by the defendant, can be disturbed without any law? 3. Whether court can put its own theory on limitation and caste doubt on the conduct of appellant especially when the suit is filed within the period of limitation? 4. Whether court can believe such evidence regarding which it has been held that defendant got the presence marked by conniving with the officials of Sub Registrar Patiala? 5. Whether source of the income of plaintiff is material when this point was not cross examined by the defendant? 6. Whether the judgment under challenge is perverse, unjust and illegal? 7. Whether the learned lower appellate court has rightly Regular Second Appeal No. 4969 of 1999(O&M) -5- appreciated the evidence led by both the parties. I have heard counsel for the parties, perused the impugned judgment and considered the questions of law framed by counsel for the appellant. With the admission of the agreement, the receipt of earnest money and the date fixed for execution of the sale deed, the only issue of divergence, is whether the appellant was ready and willing to perform his part of the contract. On this issue, the appellant and the respondent have taken diametrically opposite stands, as have the courts below, in their respective findings. The appellant alleges that he was always ready and willing to perform his part of the contract whereas the respondent alleges that he approached the appellant for execution of the sale deed, prior to the date fixed but the appellant pleaded his inability to pay the consideration amount. The trial court while decreeing the suit, held that as the appellant appeared before the sub-registrar, on the date fixed for execution of the sale deed, he was ready and willing to get the sale deed executed. The first appellate court however, differed with this finding and held that the appellant was not ready and willing to execute the sale deed, as after appearing before the sub-registrar, he did not call upon the respondent to execute a sale deed by serving any notice or posting a letter calling upon the respondent to come forward to execute the sale deed. The first appellate court has also referred to the fact that though it is averred in the plaint that the appellant served a legal notice calling upon the respondent to execute the sale deed but no evidence has been adduced in support of this averment. The first appellate court also rejected the deposition of PW2, who deposed that he visited the respondent's house and requested him to execute the sale deed. A necessary finding that precedes the grant of specific Regular Second Appeal No. 4969 of 1999(O&M) -6- performance of a contract is that the person praying for performance of the contract, was and is, ready and willing to discharge his contractual obligation. The onus to establish readiness and willingness, throughout the subsistence of the contract and upto the passing of the decree lies upon the party who approaches a court for specific performance. The readiness and willingness of a party is to be adjudged by reference to the conduct of a party and other attending evidence placed before a court. A reference in this regard may be made to an extract from judgment of the Hon'ble Supreme Court reported as N.P.Thirugnanam v. Dr.R.Jagan Mohan Rao and others1996(1) Civil Court Cases, page 27:- “To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the Court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may either infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract.” The first appellate court, has held that in the absence of any Regular Second Appeal No. 4969 of 1999(O&M) -7- evidence that the appellant called upon the respondent to execute the sale deed it cannot be held that he was ready and willing to perform his part of the contract. For this conclusion, the first appellate court has relied upon the failure of the appellant to prove that he has sent any notice, letter or communication, calling upon the respondent to execute the sale deed. It was also held that though the appellant emphatically pleaded, in the plaint, that he had served a registered notice calling upon the respondent to execute the sale deed, but while leading evidence he failed to support this averment by producing a copy of this notice or any proof of its existence. I, tend to agree with the finding recorded by the first appellate court. It is but natural for a vendee, faced with a reluctant vendor, to immediately send a notice or a letter calling upon the vendor to execute the sale deed. The appellant has, however, failed to produce any evidence to establish any such notice. Apparently, aware of this fatal flaw in his evidence, the appellant produced a witness Deva Singh PW2, who testified that he had gone to Jagir Singh to inform him that the appellant was ready with the balance money. This witness's deposition, proved to be counter productive as in his cross examination he failed to disclose the particulars of the visit. His deposition was, therefore, rightly rejected. As held hereinabove, the onus to establish readiness and willingness throughout the subsistence of the contract and upto the passing of the decree lies upon the person who prays for specific performance of an agreement. As the appellant has failed to prove his readiness and willingness to perform his part of the contract, the first appellate court, rightly accepted the appeal and set aside the judgment and decree passed by the trial court. I find no error or perversity, in the reasons adopted by the first appellate court to hold that the appellant has failed to prove that he was ready and willing to perform his part of the contract. The first question of law is answered accordingly. Regular Second Appeal No. 4969 of 1999(O&M) -8- By the second question, the appellant urges that as the agreement has been admitted, the first appellate court could not have denied the relief of specific performance. It would be necessary to emphasise that the mere proof of an agreement does not necessarily entitle a proposed vendee to the relief of specific performance, as germane to the grant of such a relief, is a finding that the proposed vendee is ready and willing to perform his part of the contract. As the appellant has failed to prove that he was ready and willing to perform his part of the contract, the second question does not arise for adjudication. The third question of law can be answered by holding that the first appellate court has not coined any new theory of limitation but has rightly observed that in case the appellant was truly ready and willing to perform his part of the contract he would not have waited for more than one year before filing the suit. The fourth question arises from a finding, returned in favour of the appellant by the trial court that as he was present before the sub- registrar, Patiala, he was ready and willing to perform his part of the contract. This fact, may have helped the appellant, but for the absence of any evidence that he ever approached the respondent for execution of the sale deed, after his appearance before the sub-registrar and prior to his filing the suit. The other questions are irrelevant as the judgment is neither perverse nor illegal and nor has the first appellate court committed any error in appraising the evidence led by the parties. In view of what has been stated hereinabove, as the impugned judgment and decree does not suffer from any error of law and no substantial question of law arises for consideration, the appeal is dismissed with no order as to costs. September, 2009 (RAJIVE BHALLA) nt JUDGE Regular Second Appeal No. 4969 of 1999(O&M) -9- C.M.No.8283-C of 2009 and R.S.A.No. 4969 of 1999 Present: Mr. A.S.Jattana,Advocate for the appellant. Mr. S.K.Sandhir, Advocate for the respondent. ** C.M.No.8283-C of 2009 Prayer in this application is for placing on record the substantial questions of law. For the reasons stated in the application, the application is allowed. The substantial questions of law as framed by counsel for the appellant, are taken on record. R.S.A.No. 4969 of 1999 Arguments heard. Judgment reserved. July 31, 2009 (RAJIVE BHALLA) nt JUDGE