FIRST APPEAL No. 49 OF 2009 Against the judgment dated 30.1.2009 and the decree signed on 5.3.2009 by Sri Srichandra Pathak, Subordinate Judge I, Saharsa in Title Suit No. 47 of 1998. SMT. LALITA DEVI ………. Defendant/Appellant Versus SMT. NARMADA DEVI & ANR. ……… Plaintiffs/Respondents ******** For the Defendant/Appellant :Mr. V. Nath, Advocate Mr. Ashok Kumar, Advocate Mr. Dr. Kislay, Advocate Mr. Sandeep Kumar, Advocate For the Plaintiffs/Respondents : Mr. Indu Shekhar Prasad Sinha, Sr. Advocate Mr. Ujjwal Kumar Sinha, Advocate Mr. Brajesh Kumar, Advocate Mr. Manish Kumar, Advocate Dated : 4th day of January, 2011 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T The defendant has filed this First Appeal against the judgment dated 30.01.2009 and the decree following thereupon signed on 05.03.3009 by Sri Srichandra Pathak, the learned Subordinate Judge I, Saharsa in Title Suit No. 47 of 1998 decreeing the plaintiffs- respondent’s suit for specific performance of contract. Mungeshwar Sahoo, J. 2 (2) The plaintiffs-respondents filed the aforesaid title suit no. 47 of 1998 for a decree for specific performance of contract dated 13.01.1997 and also the plaintiffs prayed for declaration that on receiving advance of Rs.65,000, the defendant executed the deed of agreement dated 13.01.1997 and thereafter, on payment by installment, she had received consideration of Rs.1,85,000 and the plaintiffs were always ready and willing to pay the balance consideration amount. (3) The plaintiffs claimed the aforesaid reliefs alleging that the defendant no. 1, Lalita Singh entered into a contract with the plaintiff for sale of 8 katha land for a consideration of Rs.5,20,000. The defendant received Rs.65,000 and executed deed of agreement on 13.01.1997. It was agreed between the parties that the consideration could be fixed according to increase and decrease of the area of land on measurement. Subsequently, on 2.2.1997, the plaintiffs paid Rs.70,000 to the husband of the defendant who made an endorsement to that effect on the back of the deed of agreement. Then the plaintiffs requested the defendant to execute the sale deed and to receive the balance consideration but plaintiffs demanded Rs.25,000. The plaintiffs paid the said amount of Rs.25,000 on 8.10.1997. The defendant granted receipt. On the request of the defendant, again the plaintiffs paid Rs.25,000 through Bank draft. Thus, a total consideration amount of Rs.1,85,000 has been paid by the plaintiffs to the defendant and the balance consideration amount of Rs.3,35,000 is due to be paid to the defendant. The plaintiffs were always ready and willing to perform their part of the contract but the defendant and her husband were avoiding to execute the sale deed. The last date for 3 execution of the sale deed was fixed to be March, 1998. The plaintiffs served a legal notice on 24.3.1998 but in spite of the said notice, the defendant did not execute the sale deed and gave a reply claiming that the last date for execution of sale deed was fixed till March, 1997. The plaintiffs were always ready and are still ready and willing to perform their part of the contract. (4) The defendant-appellant on being noticed, appeared and filed a contesting written statement contending inter alia that the defendant was always requesting the plaintiffs to get the sale deed executed by March, 1998 but the plaintiffs failed to pay the consideration money, therefore, the plaintiffs were not ready and willing to perform their part of the contract and still they are not ready and willing. The defendant admitted that she received Rs.65,000 as earnest money and Rs.70,000 subsequently from the plaintiff and also admitted to have received Rs.25,000 through Bank draft. An additional written statement was filed wherein it was pleaded that the plaintiff did not pay the consideration money to the defendant by March, 1998 and also stated that the area of suit land is not less than 8 katha. The plaintiffs never tendered the balance consideration amount by March, 1998 because the plaintiffs had no money. (5) On the basis of above pleadings of the parties, the learned trial Court framed the following issues: (i) Is the suit as framed maintainable? (ii) Has the plaintiff got cause of action for the suit? (iii) Is the suit barred by time? 4 (iv) Was there any contract between the parties with respect to the sale of land? (v) Were and are the plaintiffs ready and willing to perform their part of contract? (vi) Was there any agreement between the parties that the consideration money will increase or decrease as per measurement? (vii) Are the plaintiffs entitled for decree of specific performance of contract against the defendant? (viii) To what relief or reliefs if any plaintiffs are entitled to? (6) After trial, the learned Court below while deciding issue nos. 4 and 5, came to the conclusion that there was agreement between the parties for the sale of suit land and the sale deed was to be executed by March, 1998 and the plaintiffs paid Rs.1,60,000 and the plaintiffs were ready to pay the balance amount. At paragraph 17, the trial Court concluded that the defendant entered into a deed of agreement on 13.1.1997 for the sale of suit land and the plaintiffs were always willing and ready to perform their part of contract after execution of deed of agreement and paid Rs.70,000 on 2.2.1997 to the defendant and Rs.25,000 on 7.1.1998. On these findings, the learned Court below decreed the plaintiff’s suit for specific performance and directed the defendant-appellant to execute the sale deed in favour of the plaintiffs within 60 days from the date of judgment after receiving the rest consideration amount of Rs.3,60,000. (7) Mr. V. Nath, appearing on behalf of the appellant submitted that the plaintiffs-respondents prayed for a decree for specific performance of contract and also prayed for a declaration that 5 the defendant had received Rs.1,85,000 as consideration amount and the plaintiffs are ready to pay the balance consideration amount. The consideration amount was fixed at Rs.5,20,000. Therefore, according to the plaintiff, the balance consideration amount was Rs.3,35,000 only. The learned Court below after considering the oral as well as documentary evidences, came to the conclusion that the claim of the plaintiffs regarding payment of Rs.1,85,000 is false and in fact, the learned Court below found that the plaintiffs have paid only Rs.1,60,000. In spite of said finding of the learned Court below, the plaintiff’s suit has been decreed. The learned counsel further submitted that the plaintiffs approached the Court with unclean hand and made false allegation with regard to payment of Rs.25,000 on 8.10.1997 and in support of the same, Exhibit 3 was filed but the learned Court below disbelieved the said claim of the plaintiffs. In such circumstances, the grant of specific performance of contract being the equitable relief should not have been granted in favour of the plaintiffs who approached the Court with unclean hand. (8) Mr. V. Nath further submitted that the Court below has therefore, did not grant the relief of declaration that the plaintiffs have paid Rs.1,85,000 rather the Court below found that the plaintiffs had paid Rs.1,60,000 only. So far that part of the decree by which the learned Court below refused to accept payment of Rs.25,000 by the plaintiffs on 8.10.1997 was against the plaintiffs. The pleading and evidences of the plaintiffs is that the plaintiffs were always ready and willing to pay the balance consideration amount of Rs.3,35,000 only. In other words, the plaintiffs were never ready and willing to pay Rs.3,60,000. In such circumstances, the learned Court below could 6 not have found that the plaintiffs were always ready and willing to pay balance consideration amount. (9) The learned counsel further submitted that so far that part of the decree which is against the plaintiffs is concerned, the plaintiffs have not challenged by filing cross-objection rather they admitted this fact and they have deposited the balance consideration amount of Rs.3,60,000 on 9.4.2009 as directed in the judgment. Now, therefore, they admitted that they were never ready to pay Rs.3,60,000 which was due consideration amount till the judgment and decree was passed against them. Earlier they were ready to pay only Rs.3,35,000. The learned counsel relied upon various decisions in support of his contentions. (10) On the other hand, Mr. Indu Shekhar Prasad Sinha, the learned senior counsel appearing for the plaintiffs-respondents submitted that the plaintiffs can challenge the finding of the learned Court below to the effect that the plaintiffs have failed to establish the payment of Rs. 25,000 on 8.10.1997(Exhibit 3) without filing any cross-objection. According to the learned counsel, after amendment in 1976, it has become optional to file cross-objection. In support of his contentions, the learned counsel relied upon a decision of the Hon’ble Apex Court in the case of S. Nazeer Ahmad, 2007 A.I.R. S.C.W. 766=A.I.R. 2007 S.C. 989. (11) The learned counsel further submitted that the finding of the learned Court below regarding non-payment of Rs.25,000 is unsustainable because the learned Court below considered the evidences although, there was no pleading. The 7 learned counsel further submitted that there was no specific denial made by the defendant in the written statement regarding payment of Rs.25,000 on 8.10.1997 and therefore, the evidences adduced by the defendant denying the payment were not admissible for want of pleading. The learned counsel further submitted that the finding is fit to be set aside because the Expert report, Exhibit E itself is inadmissible. The said Expert report was contrary to the order passed by the Court below because the signature of the defendant on Revenue ticket on the contract, Exhibit 1 was not compared by him. The learned counsel further submitted that the learned Court below has rightly found that the plaintiffs were always ready and willing to pay the balance consideration amount and moreover, according to the direction in the judgment, the plaintiffs-respondents have already deposited the balance consideration of Rs.3,60,000. The learned counsel further submitted that it is for the parties to set out the facts in the pleadings and it is the duty of the Court to grant relief according to the facts proved and therefore, the learned Court below has granted the relief to the plaintiffs according to the facts proved by him. Only because the plaintiffs failed to prove payment of Rs.25,000 on 8.10.1997, it cannot be said that the plaintiffs were not ready and willing to pay the balance consideration amount. A written argument has been filed by the respondents raising all these grounds. (12) In view of the above rival contentions of the parties, the following points arise for consideration in this appeal:- I. “Whether the plaintiffs-respondents can be allowed to challenge the finding of the Court below that the plaintiffs failed to prove payment of Rs.25,000 on 8.10.1997 without filing cross-objection under Order 41 8 Rule 22 of the Code of Civil Procedure” and if the plaintiff is allowed to challenge that finding, then, “whether the finding of the learned Court below on that point is sustainable in the eye of law or not?” II. “Whether the plaintiffs were ready and willing and are still ready and willing to perform their part of the contract dated 13.01.1997(Exhibit 1)?” (13) So far point no. 1 is concerned, according to the plaintiffs-respondents, the plaintiffs can challenge the said finding without filing cross-objection. In support of his contention, the learned counsel firstly relied upon a decision reported in 1999 A.I.R. SC 3571(Ravinder Kumar Sharma v. State of Assam) and 2007 A.I.R. S.C.W. 766(S.Nazeer Ahmad v. State Bank of Mysore). (14) From perusal of the case of Ravinder Kumar Sharma (supra), it appears that in that case, the plaintiffs filed suit for damages for malicious prosecution. The damages were classified in three Schedules i.e. A, B and C. The High Court held that there was malice etc. on the part of defendant and granted a decree for pecuniary losses. So far Schedule-B and C are concerned, it did not grant any decree for non-pecuniary losses as no proper evidence was adduced in that behalf. The plaintiffs appealed before the Hon’ble Apex Court claiming decree for non-pecuniary loss in Schedule-A. The Hon’ble Apex Court in such circumstances, held that the defendant even though has not filed any appeal or cross-objection in regard to the adverse finding as to malice and against the decree for pecuniary loss in plaint, B and C Schedules can attack the finding as to malice etc. and support the decree of dismissal of the suit. So far as the A 9 Schedule non-pecuniary losses are concerned, the Hon’ble Apex Court also held that the filing of cross-objection against the adverse finding was not obligatory. In the present case at our hand, the plaintiffs prayed for a declaration that Rs.1,85,000 has been paid as consideration amount. The learned Court below disbelieved this case and held that the plaintiffs paid only Rs.1,60,000. Therefore, the learned Court below granted a decree of declaration to the effect that the plaintiff has paid only Rs.1,60,000. The other part of the claim has been disbelieved. In the present appeal, the plaintiffs-respondents have not filed any cross-objection to that part of the decree. In other words, the plaintiffs admitted the finding of the Court below and deposited the amount of Rs.3,60,000 as directed in the judgment. It is not a finding on issue only against the plaintiffs rather a part of the decree which the plaintiffs claimed has been refused. According to the Hon’ble Apex Court, filing of cross-objection against adverse finding is not obligatory but in this present case, on the basis of this finding, a part of the decree has been negatived. In view of Order 41 Rule 22, the plaintiffs-respondents can be allowed to support the decree as it stands in its entirety but he cannot challenge the finding by which his part of claim was refused and against which part of the decree, the plaintiffs-respondents could have independently filed appeal. (15) So far S.Nazeer Ahmad case (supra) is concerned, same view has been taken by the Hon’ble Apex Court. In that case, at paragraph 7, the Hon’ble Supreme Court held that a memorandum of cross-objection is needed if the respondents claim any relief which has been negatived to him by the trial Court and in addition to what he has already been given by the decree under 10 challenge. Therefore, in my opinion, this decision cited by the learned counsel for the respondents helps the appellant. (16) So far this provision as contained in Order 41 Rule 22 C.P.C. is concerned, the Hon’ble Apex Court has already settled the matter in the case of Banarsi and ors v. Ramphal 2003 Vol. 9 Supreme Court Cases 606. The Hon’ble Supreme Court in this decision at paragraphs 9 to 12 has held as follows: “9. Any respondent though he may not have filed an appeal from any part of the decree may still support the decree to the extent to which it is already in his favour by laying challenge to a finding recorded in the impugned judgment against him. Where a plaintiff seeks a decree against the defendant on grounds (A) and (B), any one of the two grounds being enough to entitle the plaintiff to a decree and the court has passed a decree on ground (A) deciding it for the plaintiff while ground (B) has been decided against the plaintiff, in an appeal preferred by the defendant, in spite of the finding on ground (A) being reversed the plaintiff as a respondent can still seek to support the decree by challenging the finding on ground (B) and persuade the appellate court to form an opinion that in spite of the finding on ground (A) being reversed to the benefit of the defendant- appellant the decree could still be sustained by reversing the finding on ground (B) though the plaintiff- respondent has neither preferred an appeal of his own nor taken any cross- objection. A right to file cross-objection is the exercise of right to appeal though in a different form. It was observed in Sahadu Gangaram Bhagade v. Special Dy. Collector, Ahmednagar that the right given to a respondent in an appeal to file cross-objection is a right given to the same extent as is a right of appeal to lay challenge to the impugned decree if he can be said to be aggrieved thereby. Taking any cross-objection is the exercise of right of appeal and takes the place of 11 cross-appeal though the form differs. Thus it is clear that just as an appeal is preferred by a person aggrieved by the decree so also a cross-objection is preferred by one who can be said to be aggrieved by the decree. A party who has fully succeeded in the suit can and needs to neither prefer an appeal nor take any cross-objection though certain finding may be against him. Appeal and cross- objection-both are filed against decree and not against judgment and certainly not against any finding recorded in a judgment. This was the well-settled position of law under the unamended CPC. 10. The CPC amendment of 1976 has not materially or substantially altered the law except for a marginal difference. Even under the amended Order 41 Rule 22 sub- rule (1) a party in whose favour the decree stands in its entirety is neither entitled nor obliged to prefer any cross- objection. However, the insertion made in the text of sub-rule (1) makes it permissible to file a cross-objection against a finding. The difference which has resulted we will shortly state. A respondent may defend himself without filing any cross-objection to the extent to which decree is in his favour; however, if he proposes to attack any part of the decree he must take cross-objection. The amendment inserted by the 1976 amendment is clarificatory and also enabling and this may be made precise by analysing the provision. There may be three situations: (i) The impugned decree is partly in favour of the appellant and partly in favour of the respondent. (ii) The decree is entirely in favour of the respondent though an issue has been decided against the respondent. (iii) The decree is entirely in favour of the respondent and all the issues have also been answered in favour of the respondent but there is a finding in the judgment which goes against the respondent. 11. In the type of case (i) it was necessary for the respondent to file an 12 appeal or take cross-objection against that part of the decree which is against him if he seeks to get rid of the same though that part of the decree which is in his favour he is entitled to support without taking any cross-objection. The law remains so post-amendment too. In the type of cases (ii) and (iii) pre- amendment CPC did not entitle nor permit the respondent to take any cross- objection as he was not the person aggrieved by the decree. Under the amended CPC, read in the light of the explanation, though it is still not necessary for the respondent to take any cross-objection laying challenge to any finding adverse to him as the decree is entirely in his favour and he may support the decree without cross-objection; the amendment made in the text of sub-rule (1), read with the explanation newly inserted, gives him a right to take cross- objection to a finding recorded against him either while answering an issue or while dealing with an issue. The advantage of preferring such cross- objection is spelled out by sub-rule (4). In spite of the original appeal having been withdrawn or dismissed for default the cross-objection taken to any finding by the respondent shall still be available to be adjudicated upon on merits which remedy was not available to the respondent under the unamended CPC. In the pre-amendment era, the withdrawal or dismissal for default of the original appeal disabled the respondent to question the correctness or otherwise of any finding recorded against the respondent. 12. The fact remains that to the extent to which the decree is against the respondent and he wishes to get rid of it he should have either filed an appeal of his own or taken cross-objection failing which the decree to that extent cannot be insisted on by the respondent for being interfered, set aside or modified to his advantage. The law continues to remain so post-1976 amendment. In a suit seeking specific performance of an agreement to sell governed by the provisions of the Specific Relief Act, 1963 13 the court has a discretion to decree specific performance of the agreement. The plaintiff may also claim compensation under Section 21 or any other relief to which he may be entitled including the refund of money or deposit paid or made by him in case his claim for specific performance is refused. No compensation or any other relief including the relief of refund shall be granted by the court unless it has been specifically claimed in the plaint by the plaintiff. Certainly the relief of specific performance is a larger relief for the plaintiff and more onerous to the defendant compared with the relief for compensation or refund of money. The relief of compensation or refund of money is a relief smaller than the relief of specific performance. A plaintiff who files a suit for specific performance claiming compensation in lieu of or in addition to the relief of specific performance or any other relief including the refund of any money has a right to file an appeal against the original decree if the relief of specific performance is refused and other relief is granted. The plaintiff would be a person aggrieved by the decree in spite of one of the alternative reliefs having been allowed to him because what has been allowed to him is the smaller relief and the larger relief has been denied to him. A defendant against whom a suit for specific performance has been decreed may file an appeal seeking relief of specific performance being denied to the plaintiff and instead a decree of smaller relief such as that of compensation or refund of money or any other relief being granted to the plaintiff for the former is larger relief and the latter is smaller relief. The defendant would be the person aggrieved to that extent. It follows as a necessary corollary from the abovesaid statement of law that in an appeal filed by the defendant laying challenge to the relief of compensation or refund of money or any other relief while decree for specific performance was denied to the plaintiff, the plaintiff as a respondent cannot seek the relief of specific performance of contract or modification of the impugned decree except by filing an 14 appeal of his own or by taking cross- objection.” (17) In this decision, the Hon’ble Supreme Court was considering a suit for specific performance. After the above, at paragraph 13, the Hon’ble Supreme Court held that in the absence of cross appeal or cross-objection by the plaintiffs-respondents, the First Appellate Court did not have jurisdiction to modify the decree in the manner in which it has done. So far the decisions of the Hon’ble Supreme Court either cited by the appellant or by the respondents as discussed above are concerned, I find no inconsistency. In the facts and circumstances of the present case, the plaintiffs-respondents cannot be allowed to challenge that part of the finding upon which a part of the decree claimed by the plaintiffs has been negatived. (18) In the present case, the further fact is that the plaintiffs-respondents admitted the finding that they have not paid Rs.25,000 on 8.10.1997 and therefore, instead of either filing appeal independently or filing cross-objection in this appeal deposited the consideration amount of Rs.3,60,000. In such view of the matter, the plaintiffs claim of payment of Rs.25,000 on 8.10.1997 has been given up which cannot be revived. In the aforesaid decision i.e.