IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.582 of 2001. Judgment reserved on 11th May, 2011. Date of Decision: 17th May, 2011. _______________________________________________________ Shri Hussan Lal ..Appellant. Versus Shri Ramesh Chander ..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant: Mr. H.K. Bhardwaj, Advocate. For the respondent: Mr. Ajay Chandel, Advocate. ____________________________________________________ SURINDER SINGH, J. Having failed in both the Courts below, the appellant filed the present Second Appeal, which is admitted on the following substantial questions of law: 1. Whether a decree for specific performance can be passed without proper identification of the land? 2. Whether a suit for specific performance is maintainable in the absence of written agreement/ contract? 3. Whether the impugned judgment and decree is result of misreading and misinterpretation of the evidence on record? Whether reporters of the Local papers are allowed to see the judgment? - 2 - 2. Precisely the facts giving rise to the present Regular Second Appeal preferred under Section 100 of the Code of Civil Procedure are that the respondent to be referred as ‘the plaintiff’ hereinafter, filed a suit against the appellant now to be called as ‘the defendant’, for seeking relief of specific performance of oral agreement qua “Ahata abadi” marked by letters CDEF shown in red colour in the site plan Ext.P1, as detailed in the plaint, which is half of the total land marked by letters ABCD and a part of khasra No.2758, as per Jamabandi for the year 1976-77, situated near Bhai Jawahar Singh Dharamsala in the Municipal Area of Una town, now referred as ‘the suit land’ by executing sale- deed by the defendant in favour of the plaintiff, in alternative for the recovery of `6,800/- inclusive of interest, or any other relief which the Court deems fit in the circumstances of the case. 3. The case of the plaintiff has been that the suit land is owned by the defendant. On 28th August, 1987 the defendant agreed to sell it in his favour for a consideration of `77,000/-, which was agreed by the plaintiff and he paid an advance amounting to ` 5,000/- and the defendant executed the receipt Ext.P2 to this effect. It is also the case of the plaintiff that the defendant had agreed to bear all the expenses with - 3 - respect to the registration of the sale-deed to be executed within one year. The possession of the suit land was delivered to the plaintiff on the same day. It is alleged that the plaintiff approached the defendant on different occasions impressing upon him to execute the sale-deed and receive the balance amount, but he put him off on one pretext or the other. Finally, on 4th January, 1990, the plaintiff approached the defendant at his residence at Delhi and requested him to visit Una to execute the sale-deed. The defendant promised to visit Una for the said purpose in the month of February, 1990, but did not keep his commitment. Since the plaintiff has been ready and willing to perform his part of the contract and the defendant adopted dilatory- tactics, as such he sent a legal notice dated 20th March, 1990 (Ext.P3) through his counsel by post, which was received by the defendant and the acknowledgement due, is Ext.P5 signed by him. Despite that the defendant even did not visit Una to execute the sale-deed, but sent his reply Ext.P6 through his Advocate. Finally, the plaintiff decided to file the present suit seeking direction to the defendant to execute the sale-deed and in alternative sought the recovery of the aforesaid amount alongwith interest. - 4 - 4. The suit was resisted and contested by the defendant and raised the preliminary objections of maintainability and cause of action. However, on merits, he admitted the agreement as alleged for a consideration of `77,000/- and also the receipt of `5,000/-, as earnest money. It is the case of the defendant that he informed plaintiff that it was not possible to sell the suit land adjoining to Rameshwar Kapila till its mutation is sanctioned and after the sanction of mutation in his name he requested the plaintiff to get the sale-deed executed on payment of balance amount of `72,000/- within one month, but he always pretended that his FDRs have not yet matured. Thus, he failed to perform his part of the contract. According to the defendant, the plaintiff could not arrange for the money within one month from the date of sanction of mutation in the name of the defendant, thus the advance amount received by him stood forfeited and relief sought cannot be granted. 5. In replication to the written statement, the plaintiff denied the preliminary objections and affirmed even paras on merits. 6. On the pleadings of the parties, the learned trial Court framed the following issues: - 5 - 1. Whether the plaintiff is entitled for specific performance of agreement dated 28.8.1987 by way of execution of sale deed of Ahata marked with letters CDEF, as alleged? OPP. 2. Whether the plaintiff undertook to bear the expenses of execution and registration of sale deed in addition to sale consideration, as alleged? OPD. 3. Whether the suit is not maintainable as alleged in preliminary objection No.1 of written statement? OPD. 4. Whether the plaintiff has no cause of action? OPD. 5. Relief. 7. Both the parties led their evidence and after the complete trial, learned trial Court came to the conclusion that the defendant had agreed to sell half share of the “Ahata abadi” shown red in colour in the site plan (Ext.P.1) attached with the plaint comprised in khasra No.2758. Thus, a decree for specific performance was passed directing the defendant to execute the sale- deed in favour of the plaintiff and receive the balance amount within a period of two months from the date of decree, failing which the plaintiff shall have no right to execute the sale-deed executed through the Court. 8. The impugned judgment and decree passed by the learned trial Court was assailed in appeal before the learned District Judge on the grounds that the property sought to be purchased by the plaintiff was not identified properly in the site plan Ext.P1, suit was not maintainable as it was for possession by directing the execution of the sale-deed in favour of the plaintiff, the - 6 - plaintiff did not adduce any evidence to show that he has been ready and willing to perform his part of the contract and finally that the Court was not competent to grant the decree for specific performance of contract. But in the facts and circumstances of the case, the Court should have granted the relief for the refund of the money. All the points raised by the defendant, were decided against him, consequently his appeal was dismissed. 9. It is argued by Shri H.K. Bhardwaj, learned Counsel for the defendant that on the oral agreement the relief could not have been granted by the learned trial Court. Further that there has been inaction on the part of the plaintiff despite knowing the fact that the mutation has been sanctioned in the name of the defendant and time limit was prescribed for taking steps by the plaintiff and to pay the balance amount, which were not done, therefore, it would be inequitable to grant the relief of specific performance to the plaintiff. To buttress his argument, the learned Counsel relied upon the judgment of Apex Court in K.S. Vidyanadam and others v. Vairavan, AIR 1977 SC 1751. He also argued that the plaintiff is not sure about the identification of the land falling in khasra No.2758. Thus, the terms of the agreement are vague and uncertain - 7 - which can not be fulfilled for want of uncertainty. He further ventilated that the plea that a particular contract is void for uncertainty under Section 29 of the Contract Act, is a pure question of law and can be raised even at the appellate stage and placed reliance on Kandamath Cine Enterprises (Pvt.) Ltd. v. John Philipose, AIR 1990 Kerala 198 and S.Rangaraju Naidu v. S. Thiruvarakkarasu, AIR 1995 SC 1769. 10. On the other hand, Shri Ajay Chandel, learned Counsel for the plaintiff, supported the impugned judgment and decree passed by the Courts below and submitted that though the plea about the uncertainty and vagueness of the agreement can be taken for the first time in Second Appeal, but according to him, there is no ambiguity or uncertainty in the agreement itself. The defendant knew it well and receipt Ext.P2 clearly defines the boundary of the suit land. He also pointed out that the defendant in his statement admitted the oral agreement and the execution of the receipt Ext.P2 wherein he also made the reference with respect to the location and identification of the suit land regarding which the suit was decreed by the learned trial Court and also upheld in appeal. He also argued that the evidence on record was properly thrashed and appreciated by the first appellate Court. Thus, the - 8 - concurrent findings of fact cannot be reopened in second appeal. 11. I have given my thoughtful consideration to the rival contentions of the parties and have carefully gone through the record of the Courts below. 12. The first question which arises for determination in the instant case, is with respect to the proper identification of the land. 13. The plaintiff sought the relief with respect to the half share of khasra No.2758, Khewat No.497, Khatauni No.946, as entered in Jamabandi for the year 1976-77, situated near Bhai Jawahar Singh Dharamsala in Municipal Area of Una town by execution of the sale- deed by the defendant and he denoted the land by letters CDEF shown in red colour in the site plan Ext.P1 prepared by the draftsman and also describing by its boundaries. 14. Of course, the plea that a particular contract is void for uncertain under Section 29 of the Contract Act, is a question of law, provided the terms of the contract are vague and uncertain, but in the instant case there is no difficulty in ascertaining and interpreting the identification of the land and the terms and conditions of the sale inter-se the parties. - 9 - 15. In fact, the solemnity of the contracts inter-se the parties are not to be declared invalid for uncertainty or vagueness. It is well settled that if the Court is satisfied that there is ascertainable and determinative intention, it must give effect to that intention. A contract will become void only when its terms are vague, uncertain and it cannot be made. Mere difficulty in interpretation is not synonymous with vagueness. 16. The defendant in his statement as DW1 admitted the execution of the receipt Ext.P2 whereby he received the earnest money amounting to ` 5,000/- from the plaintiff against the sale consideration amount of half share of the land, consideration value whereof was `77,000/- and he made the reference that this property is situated near Bhai Jawahar Singh Dharamsala and half of the land is under the boundary wall adjoining to Shri Rameshwar Dass Kapila. In his cross-examination, he specifically stated that he is still ready and willing to execute the sale-deed as per the details of the property given in the receipt aforesaid. It is not disputed that the defendant has the only property at the said place which is shown in the site plan Ext.P1. Even in the reply of the defendant given to the notice by the plaintiff, the defendant has agreed to sell the land in question to the plaintiff meaning thereby that both the parties are fully - 10 - aware of the identification of the land in question, which was ascertained by the learned trial Court quite efficiently without any confusion on sifting the evidence of parties, accordingly a decree with respect to the land has been passed against the defendant. The findings to that effect were also upheld in appeal. I do not find any uncertainty and vagueness in the alleged contract. 17. In the facts and circumstances of the case, I do not find anything that the suit for specific performance in absence of the written agreement/ contract is not maintainable keeping in view the subsequent conduct of the defendant, more specifically when the oral agreement is followed by the receipt with respect to earnest money mentioning the details of the property. The defendant testified the correctness of such an agreement. Since the oral agreement is followed by the subsequent act of the defendant including the receipt of amount as aforesaid, the suit for specific performance is certainly maintainable. 18. The plaintiff as PW1 has proved the facts alleged and the defendant has admitted the entire case except identification of the property which has been properly identified by the learned trial Court, as stated and admitted by the defendant. The plaintiff has - 11 - proved that he is ready and willing to perform his part of the contract. 19. Further, the perusal of the record shows that the mutation was sanctioned in the name of the defendant on 28th June, 1988 and not in the month of May, 1988 as stated by him and there is also nothing on record to show that he had informed the plaintiff about the sanction of the mutation in his name. On the other hand, there is a consistency in the statement of the plaintiff that he was ready and willing to perform his part of the contract and it was so pleaded in his plaint to which the defendant could not rebut. Therefore, I do not find that the Courts below have misread and misinterpreted the evidence on record. 20. For the reasons aforesaid, the substantial questions of law are accordingly answered. 21. No other point urged or pressed before me. 22. In view of the foregoing findings, there is no merit in the appeal, which is accordingly dismissed. Costs on parties. May 17, 2011. (Surinder Singh), J. (rc)