FIRST APPEAL No.60 OF 2007 Against the judgment and decree dated 26.09.2006 passed by Sri Radheshyam Singh, Sub Judge IVth, Bhojpur Ara in Title Suit No. 593 of 2002. Ram Chandra Prasad ………… Defendant/Appellant Versus Smt. Mina Devi ……….. Plaintiff/Respondent ******** For the appellant : Mr. V. Nath, Advocate Mr. Ashok Kumar, Advocate Mr. Satish Kumar, Advocate Mr. G. Kumar, Advocate For the respondent : Mr. Dhurub Narayan, Sr. Advocate Mr. Jitendra Prasad Singh, Advocate Mr. Abhishek, Advocate. Mr. Prabhat Kumar Deepak, Advocate with him. Dated : 16th day of May, 2011 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T 1. The defendant has filed this first appeal against the judgment and decree dated 26.9.2006 passed by Sri Radheyshyam Singh, the learned 4th Subordinate Judge, Bhojpur, Ara in Title Suit No. 593 of 2002 whereby the learned court below decreed the alternative prayer of the plaintiff-respondent in the suit for specific performance of contract. 2. The plaintiff-respondent filed the aforesaid Title Suit No. 593 of 2002 praying for specific performance of contract dated 22.12.1999 on receiving balance consideration amount of Rs.76,000/- and in the Mungeshwar Sahoo, J. -2- alternative prayed for a decree for recovery of Rs.2,24,000/- with interest @ Rs.2/- per month from the date of agreement dated 22.12.1999. 3. The plaintiff prayed the aforesaid relief on the facts inter alia which may be briefly stated thus, that the parties were knowing each other from before. The defendant-appellant had taken loan at the time of marriage of his daughter and to repay the same he agreed to sell the suit house for Rs.3,00,000/-. The plaintiff-respondent agreed to purchase the same and paid Rs.2,24,000/- as earnest money and a Mahadanama was executed in presence of the witnesses. The defendant signed on the Mahadanama. According to the said agreement the balance consideration amount of Rs.76,000/- was to be paid and then a sale deed was to be executed and registered in favour of the plaintiff. The plaintiff arranged the said amount in the month of October 2002 and went to pay the defendant and asked him to execute the sale deed but the defendant avoided. Thereafter the plaintiff and her husband tendered the said balance amount of Rs.76,000/- repeatedly but the defendant avoided. Then the plaintiff sent advocate notice. On 24.10.2022 the defendant replied to the notice also whereupon the plaintiff came to know about the ill-intention of the defendant. The agreement was to be performed within 22.12.2002. 4. The defendant-appellant appeared and filed contesting written statements denying all the allegations made in the plaint. Mainly, the defence of the appellant is that no such agreement was ever executed between the parties. There was no agreement. The payment of earnest money of Rs.2,24,000/- was also denied. It is stated that the agreement in question is forged and fabricated. The further defence is that the defendant has no other house except the suit house and his son has got equal interest in the property and the defendant-appellant is a drunkard. -3- 5. On the basis of the above pleadings of the parties, the learned court below framed various issues. 6. After trial the learned court below came to the conclusion that the agreement i.e. Mahadanama is genuine and the defendant in his full sense after receiving the earnest money of Rs.2,24,000/- executed the said agreement in presence of the witnesses. The learned court below also found that the defendant has not returned the said earnest money nor executed the sale deed. However, the learned court below found that the defendant-appellant has got the suit house as his only residential house and in the suit house he is residing with his family, therefore, granted the alternative relief instead of granting the relief for specific performance of the contract. 7. The plaintiff is satisfied with this decree whereby alternative relief has been granted. However, the defendant has field this first appeal challenging that part of the decree whereby the alternative relief has been granted. 8. The learned counsel Mr. V. Nath appearing on behalf of the appellant raised two grounds assailing the aforesaid part of the decree. The first ground raised by the learned counsel is that the suit for specific performance of contract itself was not maintainable and in such circumstances the said suit should have been dismissed, therefore, there was no question of granting alternative relief but the learned court below has wrongly granted alternative relief. There is neither pleading in terms of Section 16(c) of the Specific Relief Act nor evidence in support of the said fact therefore, the said suit ought to have been dismissed as not maintainable as the plaintiff had no cause of action for the suit. The learned court below has neither framed any issue nor any finding has been given that the plaintiff was ready and willing and is still ready and -4- willing to perform her part of the contract but decreed the plaintiff’s suit. Secondly, the learned counsel Mr. V. Nath submitted that there is no reliable evidence on record to show that in fact the agreement is genuine agreement and the defendant appellant ever received the amount of Rs.2,24,000/- as earnest money but the learned court below without discussing the evidences available on record wrongly came to the finding that the defendant-appellant has received the said amount and then executed the Mahadanama. The learned court below has not appreciated the evidences properly. The learned counsel in support of his submissions relied upon various decisions which I shall consider later on. 9. On the other hand, Mr. Dhurub Narayan, the learned senior counsel appearing on behalf of the respondent submitted that pleading of Section 16(c) of the Specific Relief Act is there or not has become now academic question only in view of the fact that the learned court below has not granted the relief for specific performance of contract. However, according to the learned counsel the exact wording mentioned in Section 16(c) of the Specific Relief Act is not required to be pleaded. The intention of the parties can be seen from the entire reading of the plaint and if from the plaint the facts are available which reflect that the plaintiff was ready and is still ready and willing then the court could not insist the pleading of exact wording as provided under Section 16(c) of the Specific Relief Act. Here there is pleading and also evidence on record. So far non-framing of issue is concerned no prejudice has been caused to the defendant because the parties went to trial on the basis of their respective pleadings and both the parties were knowing the case of each other. The defendant was knowing that the suit has been filed by the plaintiff for specific performance of contract where respondent is required to prove her continuous readiness and willingness to perform her part of the contract and the defendant pleaded that the said -5- Mahadanama is forged and fabricated and he never received the earnest money of Rs.2,24,000/-. Therefore, non-framing of issue is also irrelevant in the present case because the main relief has not be granted. However, the learned court below on the basis of the evidence found that the defendant-appellant has received the amount of Rs.2,24,000/- as earnest money and has executed the agreement i.e. Mahadanama in presence of the witnesses. Considering the hardship the learned court below has granted alternative relief to the plaintiff. On these grounds, the learned counsel submitted that the first appeal is liable to be dismissed with costs. According to the learned counsel the intention of the appellant is bad and want to grab the earnest money paid by the plaintiff after selling her ornaments etc. and in aid of his ill-intention dragged the plaintiff-respondent upto this Court. 10. In view of the above contentions of the parties, the points arises for consideration in this appeal are : (1) Whether the plaintiff’s suit for specific performance was maintainable ? (2) Whether the plaintiff-respondent is entitled for a decree for refund of the earnest money of Rs.2,24,000/- and whether the impugned judgment and decree are sustainable in the eye of law ? 11. The learned counsel for the appellant submitted that there is neither pleading nor issue with regard to Section 16(c) of the Specific Relief Act. The plaintiff is required not only to plead but also to prove that she was ready and willing and is still ready and willing to perform her part of the contract. In the present case, neither there is pleading nor there is finding. From perusal of the pleading it appears that at paragraph 4 there is specific pleading that there was agreement between -6- the parties that the balance consideration amount of Rs.76,000/- shall be paid by the plaintiff and then the sale deed shall be executed. At paragraph 5 it is stated that in the month of October 2002 she arranged the balance consideration of Rs.76,000/- and tendered the same to the defendant but the defendant avoided. Then regularly the plaintiff was tendering the balance amount but always the defendant was avoiding. Then she gave advocate notice. After receiving the reply of the advocate notice also the plaintiff went and again tendered the balance amount of Rs.76,000/- on 14.11.2002 but he did not execute. These are the pleadings regarding the readiness and willingness. In (1999) 6 SCC 337 Syed Dastagir Vs. T.R. Gopalakrishna Setty the Apex Court at paragraph 9 had held as follows : “9. So the whole gamut of the issue raised is, how to construe a plea specially with reference to Section 16(c) and what are the obligations which the plaintiff has to comply with in reference to his plea and whether the plea of the plaintiff could not be construed to conform to the requirement of the aforesaid section, or does this section require specific words to be pleaded that he has performed or has always been ready and is willing to perform his part of the contract. In construing a plea in any pleading, courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one’s case for a relief. Such an expression may be pointed, precise, sometimes vague but still it could be gathered what he wants to convey through only by reading the whole pleading, depending on the person drafting a plea. In India most of the pleas are drafted by counsel hence the aforesaid difference of pleas which inevitably differ from one to the other. Thus, to gather true spirit behind a plea it should be read as a whole. This does not distract one from performing his obligations as required under a stature. But to test whether he has performed his obligations, one has to see the pith and substance of -7- a plea. Where a statute requires any fact to be pleaded then that has to be pleaded may be in any form. The same plea may be stated by different persons through different words; then how could it be constricted to be only in any particular nomenclature or word. Unless a statute specifically requires a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16(c) does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of “readiness and willingness” has to be in spirit and substance and not in letter and form. So to insist for a mechanical production of the exact words of a statute is to insist for the form rather than the essence. So the absence of form cannot dissolve an essence if already pleaded.” 12. It appears that in that case also there was no pleading of exact wording as required under Section 16(c) of the Specific Relief Act, vide paragraph 10 of the said judgment. Here also as stated above no doubt there is no exact words but then it is clear that the plaintiff has averred the fact to show that she has performed and has always been and is willing to perform her part. 13. In (2000) 6 SCC 420 Motilal Jain Vs. Ramdasi Devi (Smt.) and others the Apex Court has held that averment as to readiness and willingness in plaint is sufficient if the plaint, read as a whole, clearly indicates that the plaintiff was always and is still ready and willing to fulfil his part of the obligations. Here in the present case at our hand as stated above no doubt there is no exact word but then from entire reading of the plaint it is clear that the plaintiff was ready and is still ready to perform her part of the contract. -8- 14. The learned counsel for the appellant relied upon AIR 1968 SC 1355 Prem Raj Vs. The D.L.F. Housing and Construction (Private) Ltd. and another and submitted that the Hon’ble Court has held that when there is no pleading than the plaintiff had no cause of action and placed reliance at paragraph 5 of the judgment. From perusal of the said decision it appears that the Hon’ble Apex Court nowhere decided that there must be exact wording that the plaintiff was ready and is still ready and willing to perform her part of the contract. Further it appears that in that case the plaintiff filed the suit for a declaration that the contract against him is void and inoperative having been obtained by undue influence and in the same suit alternatively pleaded that the said contract may be specifically enforced. In the very first paragraph the Apex Court framed the point to the effect that “the sole question involved in this appeal is whether the plaintiff suing for a declaration that a certain contract against him is void and inoperative having been obtained by undue influence, can in the same suit in the alternative ask for the relief of specific performance of same contract”. The Hon’ble Court held that the plaintiff suing for specific performance of contract can alternatively sue for recision of the contract but converse is not provided. It is therefore, not open to plaintiff to sue for recision of the agreement and in the alternative sue for specific performance. I, therefore, find that this decision is not helpful to the appellant. 15. The learned counsel for the appellant next relied upon AIR 1990 SC 682 Abdul Khader Rowther Vs. P.K. Sara Bai and others and submitted that the plaintiff is required to plead that he is ready and willing to perform his part of the contract and in absence of such an allegation the suit is not maintainable. From perusal of the said decision it appears that the High Court found as follows : -9- “Even by putting a liberal construction on the various statements contained in the plaint, it is difficult to hold that there has been even a faint attempt to make it to conform to the requirements prescribed in Forms 47 and 48 of the First Schedule in the Civil Procedure Code, that the plaintiff had applied to the defendants specifically to perform the agreement and that he had been and is still ready and willing to specifically perform his part of the agreement ………….”. The Hon’ble Apex court found that the High Court was justified in coming to that conclusion. Therefore, it appears that from plaint of that case the intention of the plaintiff about readiness and willingness was not reflected. I therefore, find that this decision also is not helpful to the defendant. 16. The learned counsel for the appellant relied upon another decision reported in 2004 (3) PLJR 255 (SC) Pukhraj D. Jain and others Vs. G. Gopalakrishna on the same question i.e. pleading in terms of Section 16(c) of the Specific Relief Act. From perusal of the said decision it appears that in that case the Apex Court found that the respondent No.1 himself sent a legal notice rescinding the contract and thereafter filed suit claiming refund of the advance paid by him and in fact the suit for recovery of the amount was decreed by the trial court on 24.7.1985. Against the said decree a revision was filed by the respondent wherein an order of rejection of the plaint was passed by the High Court. In such circumstances, the Apex Court held that it is absolutely apparent that the respondent no.1 was not ready and willing to perform his part of the contrary and in view of the mandate of Section 16 of the Specific Relief Act no decree for specific performance could be passed in his favour and further held that the trial court has rightly held that the suit was not maintainable. Here the fact is entirely different. Moreover, the Apex Court in this decision also -10- nowhere settled that specific and exact wording should be there according to form 47 and 48 of the Code of Civil Procedure. 17. In view of the above discussions, it is clear that the fact required to be pleaded under Section 16 (c) of the Specific Relief Act must be pleaded but may be in any form so the compliance of readiness and willingness has to be in spirit and substance and not in latter and form. Therefore, to insist for a mechanical production of the exact word of a statute is to insist for the form rather than the essence. The plea is not an expression of art and science but an expression through words to place fact and law and one’s case for a relief. It could be gathered only by reading the whole pleading and the pleading depends on the skill of the person drafting the same. It is well settled principles of law that emphasis should not be given in the form of pleading rather the court is required to find out the substance of the pleading. 18. In view of the above settled principles of law in the present case at our hand it cannot be said that there is no pleading in terms of Section 16 (c) of the Specific Relief Act. Moreover, the learned court below has not granted the main relief i.e. relief for specific performance of the contract dated 22.12.1999 Ext.3. The learned counsel for the appellant submitted that when the suit itself was not maintainable for want of pleading as require under Section 16(c) of the Specific Relief Act there was no question of granting the alternative relief arose. So far this submission is concerned I do not agree with the learned counsel. We have seen the settled principles laid down by the Apex Court as referred to above. None of the decisions cited by the appellant is in support of the contention of the appellant. Section 16(c) of the Specific Relief Act do not bar the institution of the suit. It is only a personal bar against the plaintiff to a relief for specific performance -11- of a contract. Therefore, it cannot be said that the suit is not maintainable. I therefore, find that the suit was maintainable and from the reading of the plaint I find that the plaintiff was ready and is still ready and willing to perform her part of the contract. 19. The learned counsel for the appellant next submitted that the learned court below has wrongly held that the plaintiff had paid earnest money of Rs.2,24,000/- Now let us consider the evidence on this point as to whether the plaintiff has been able to prove that earnest money Rs.2,24,000/- was paid at the time of execution of Mahadanama or not. PW 1 is the plaintiff herself. She has fully supported her case as made out in the plaint at paragraph 3 in examination-in-chief. She has stated that Rs.2,24,000/- was paid in cash as earnest money. PW 3 Sankar Prasad at paragraph 4 has stated that in his presence the Mahadanama was scribed and it was read over and explained to the defendant and plaintiff paid Rs.2,24,000/- and agreed to pay rest Rs.76,000/- at the time of registration. It may be mentioned here that no cross-examination has been made to this witness regarding the payment of Rs.2,24,000/- as earnest money. The learned counsel for the appellant submitted that he is relation of the plaintiff. On the ground of relationship in civil case the evidence cannot be discarded particularly, when no cross-examination has been made by the other side. It is well settled principles of law that if no cross-examination is made on a particular fact stated by the witness against the other part then it will be presumed that the said statement made by the witness is admitted to be true by the other side. PW 5 has also stated at paragraph 7 of his evidence that Rs.2,24,000/- was paid and Ram Chandra had told him. However in the cross- examination at paragraph 9 he has clarified the statements made in paragraph 7 and has clearly stated that he was also a witness to the -12- payment of Rs.2,24,000/-. This clarification has been obtained by the appellant himself in the cross-examination. When this witness stated that he is a witness to the payment then also no further cross- examination has been made to him on this point. In other words, this statement made by the witness at paragraph 9 of his cross- examination was admitted by the appellant and not denied. PW 7 is the husband of the plaintiff. He has also stated about the payment of Rs.2,24,000/- as earnest money to the appellant vide paragraph 5 of his examination-in-chief. Surprisingly, no cross-examination has been made on the said point to this witness also. Ext. 3 is the Mahadanama. In the Mahadanama itself the defendant has clearly mentioned that he has received Rs.2,24,000/- as earnest money. In his evidence the defendant who was examined as DW 10 admitted that he has signed on Mahadanama but he has stated that he signed in intoxicated condition. So far this explanation is concerned it is not reliable. When this witness deposed before the court below he was remembering that when he signed on Mahadanama Ext.3 he was in intoxicated condition which itself means that he signed it out of his free will after understanding the contents and effect of the Mahadanama. He is a government servant. It is not his case that he was not in a position to understand the effect of the Mahadanama. Moreover, this is only an explanation for the sake of explanation which cannot be relied upon and accepted. The learned counsel for the appellant submitted that the husband of the plaintiff obtained the signatures on plain paper on the pretext that he will obtain loan from the department for the defendant. So far this submission is concerned also I find no force because admittedly the appellant is employee in health department and the husband of the plaintiff is contractor. In such circumstances how and in what circumstances the contractor could have obtained loan from -13- the health department that too for the defendant ? It may be mentioned here that on the admission of DW 10 his signature on Mahadanama has been marked as Ext.8. The defendant has also examined other witnesses but those witnesses have deposed in the negative. It is settled law that negative need not be proved, denial is sufficient. Therefore, it was for the plaint to prove as to whether the payment of Rs.2,24,000/- was made or not. In such view of the matter, it is not necessary to deal the oral evidences of the defendant in great detail regarding payment of the amount. Moreover, none of them are witnesses in the Mahadanama Ext.3. 20. In view of the above discussion