FIRST APPEAL No. 44 OF 2007 Against the judgment and decree dated 25.11.2006 passed by Sri Om Shankar Srivastava, Sub Judge-III, Patna in Title Suit No. 102 of 2005. SURESH KUMAR LAL ………. Defendant/Appellant Versus SMT. LALTI DEVI ……… Plaintiff/Respondent ******** For the Appellant : Mr. Uma Shankar Singh No.2, Advocate. Mr. Manoj Kumar Singh, Advocate. Mr. Mukesh Kumar, Advocate. Mr. Brajesh Kumar Pandey, Advocate For the Respondent : Mr. Uday Shankar Sharan Singh, Advocate ________________________________________________________ Dated : 28th 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 1. This first appeal is directed against the judgment and decree dated 25.11.2006 passed by Sri Om Shankar Srivastava, the learned Sub Judge-III, Patna in Title Suit No. 102 of 2005 decreeing the plaintiff-respondent’s suit for specific performance of contract. 2. The plaintiff-respondent filed aforesaid title suit praying therein the following reliefs : “(a) Decree for specific performance of contract for sale with respect to the land in suit detailed in Schedule I below in pursuance of the baibeyana deed Mungeshwar Sahoo, J. -2- dated 14.9.2004 be passed in favour of the plaintiff & against the defendant. (b) On grant of relief No.(a) the defendant be directed to execute & register the sale-deed in favour of the Plaintiff and in case of failure the sale-deed be executed and registered through the process of the court and the Plaintiff be put in possession over the suit property through the court. (c) Alternatively decree for Rs.55,000/- the amount already paid to the defendant along with interest pendentilite and future @ 18% p.a. be passed in favour of the Plaintiff & against the defendant. (d) Cost of the suit be awarded to the Plaintiff & against the defendant. (e) Any other relief or reliefs to which the Plaintiff is found entitled be passed in favour of the Plaintiff.” 3. The description of the property in suit has been given in Schedule 1. The area of which is 8 dhur with tile house. At paragraph 10 of the plaint it is specifically pleaded that the suit is valued at Rs.3,05,000/- being the value of the land in suit as per agreement. 4. The plaintiff-respondent prayed for the aforesaid relief alleging that the defendant being the owner of the suit land detailed in Schedule 1 contracted to sell the same to the plaintiff and talk for sale was finalized for a total consideration of Rs.3,05,000/-. A baibayana deed was executed on 14.9.2004 on receipt of Rs.50,000/- as earnest money. It was agreed that the sale deed would be executed and registered within six months. Since the date of agreement the plaintiff was always willing and ready to pay the balance consideration amount and to get the sale deed executed and registered but the defendant is always avoiding the matter on one or other grounds. On the request of the defendant the plaintiff further paid Rs.5000/- on 31.1.2005 and the defendant acknowledged the receipt of the said amount on the -3- back of the first page in the baibayana deed. The defendant had agreed to measure the land and execute and register the sale deed but in spite of repeated request the defendant is not ready. The plaintiff sent notice requesting him to execute and register the sale deed but in spite of service of notice he did not turn up. Therefore, in spite of the readiness and willingness of the plaintiff to pay balance consideration amount the defendant is avoiding to execute and register the sale deed. Hence the suit. 5. The defendant-appellant appeared and filed a contesting written statement. The defendant mainly contended that the suit has been filed with mala fide intention making false allegations. The defendant admitted that he was in need of money and, therefore, contacted the plaintiff who had seen the house and agreed to purchase the same at Rs.3,05,000/-. The said amount was finalized between them and the baibayana deed was executed on 14.9.2004. The defendant also admitted to have received Rs.50,000/- as advance. The defendant’s further case is that the plaintiff agreed and promised to pay remaining consideration amount within six month from the date of baibayana and get the sale deed executed and registered and in case of failure the advance amount shall be forfeited. The balance consideration amount was Rs.2,55,000/- which was to be paid within six weeks. After the said baibayana the defendant requested the plaintiff and her husband several times i.e. in the last week of December 2004, second week of January 2005 and last week of February 2005 to pay the remaining consideration amount and get the sale deed executed and registered but the plaintiff did not take any care of the necessity of the defendant. The plaintiff was never ready and willing to get sale deed executed and pay the balance consideration amount within the stipulated period of six months which -4- expired on 13.3.2005 and the time was essence of the contract and, therefore, the advance amount stands forfeited. The further defence is that all of a sudden in third week of March 2005 the defendant received a legal notice and he replied on 22.3.2005 but in spite of that plaintiff took no care. The defendant denied to have received Rs.5000/- on 31.1.2005 and also denied to have signed in the back of first page of baibayana deed. The defendant had agreed to sell the house covering the area whatsoever within its Chouhaddhi mentioned in Schedule 1 and, therefore, there is no question of measurement. 6. On the basis of the above pleadings the learned court below framed the following issues : “I. Is the suit as framed maintainable ? II. Has the plaintiff got valid cause of action for the institution of this suit ? III. Is the suit barred by estoppel, waiver and acquiescence ? IV. Is the suit barred under section 34 of the Specific Relief Act ? V. Is the baibeyana deed dated 14.9.2004 executed by the defendant in favour of the plaintiff legal, valid and operative document ? VI. Is the plaintiff entitled to the decree for specific performance of contract for sale of suit land as claimed ? VII. Is the plaintiff entitled to the decree for alternative relief for money as claimed ? VIII. To what relief or reliefs, the plaintiff is entitled for ?” 7. After trial the learned court below while deciding issue Nos.5 and 6 observed that the defendant had stated that now he is not ready -5- to sell the disputed land which shows and proves the mala fide intention of the defendant. The learned court below also observed that it is beyond imagination that why the plaintiff was reluctant to get the sale deed registered when the defendant was ready to execute the same and therefore, it transpires that the defendant was on wrong side otherwise there is no occasion to file the suit and also observed regarding payment of Rs.5000/- that onus lies exclusively on the defendant to prove that his signature on the back of first page of agreement Ext.1 is forged one and if the plaintiff’s intention had been to forge the handwriting and signature of defendant Suresh Kumar Lal, he would have forged for bigger amount instead of petty amount of Rs.5000/-. In such circumstances, the defence of defendant is not reliable. On these observations and discussions the learned court below came to the conclusion that the plaintiff was always ready and willing to pay the balance consideration amount and to get the sale deed executed after measurement in pursuance of agreement for sale dated 14.9.2004 within stipulated period mentioned in the said agreement. 8. The learned counsel appearing on behalf of the appellant submitted that the learned court below has wrongly decreed the plaintiff’s suit for specific performance of contract because there is no evidence on record to show that the plaintiff was always ready and willing to perform her part of the contract to pay balance consideration amount of Rs.2,55,000/-. The learned counsel further submitted that there is even no pleading in the plaint that the plaintiff was always ready and willing to pay the balance consideration amount of Rs.2,55,000/-. The learned counsel further submitted that the learned court below has wrongly placed onus on the appellant to prove that his signature is forged on the back of first page of the agreement. The -6- learned counsel further submitted that under Section 102 of the Evidence Act the burden was on the plaintiff to prove that the signature appearing in the back of the first page of the agreement is of the defendant-appellant. The learned counsel submitted that even in the naked eye the signature appears to be forged and it was evident that this signature and writing appearing in the back of first page of agreement is not in the pen of the defendant and in the evidence the defendant denied the signatures and in such circumstances it was the burden of plaintiff to prove the signature of the defendant-appellant. The learned counsel further submitted that so far the readiness and willingness is concerned except the pleading that she is always ready and willing to pay the balance consideration, there is no prove of the same. Mere pleading is not sufficient. The plaintiff is required to prove the same by adducing reliable evidence. In the evidence also the plaintiff PW 1 has only stated that she is still ready to pay balance consideration amount. From the evidence it will appear that the plaintiff always demanding for measurement of the area of the suit land. Except this pleading and evidence of one line the circumstances does not show that the plaintiff was ever ready and intentionally the plaintiff has not filed a copy of the notice sent to the defendant. The defendant has sent a notice to the plaintiff dated 22.3.2005 wherein he requested to pay the said balance consideration amount and get the sale deed executed but the plaintiff never replied the same. The learned counsel further submitted that no doubt time is generally not the essence of contract in relation to immovable property but the parties by stipulation may make the time essence of contract and in this case the defendant was in need of money and, therefore, agreed to sell and demanded the consideration amount within six months but in spite of demand the plaintiff failed to pay on the ground that firstly -7- measurement should be done. On these grounds the learned counsel submitted that the impugned judgment and decree are liable to be set aside. 9. On the other hand, the learned counsel appearing on behalf the respondent submitted that there is no illegality in the impugned judgment and decree and therefore, it cannot be interfered with. The learned counsel further submitted that according to the requirement of law i.e. Section 16(c) of the Specific Relief Act the plaintiff has pleaded and also adduced evidence in support of the pleadings that she is still ready and willing to pay the balance consideration amount and moreover just on the expiry of six months the suit has been filed which shows readiness and willingness of the plaintiff. The learned counsel further submitted that plaintiff also sent a legal notice to the defendant and in reply to that notice the defendant had sent a notice which is Ext. A. Therefore, the oral evidence coupled with the legal notice proves that the plaintiff was always ready and willing to pay the balance consideration amount. The learned counsel further submitted that it was agreed between the parties that after measurement the price will be fixed according to area of the land. Therefore, the plaintiff was always demanding to measure first and on the basis of the measurement she was always ready to pay the consideration amount. So far receipt of Rs.5000/- is concerned the learned counsel submitted that the mere denial of signature by the defendant is not sufficient. It is for the defendant to have proved the same by examining expert. On these grounds the learned counsel submitted that the first appeal is liable to be dismissed. 10. In view of the above rival contentions of the parties, the points arises for consideration in this appeal is, as to whether the plaintiff was all along and is still ready and wiling to perform her part -8- of the contract and whether the impugned judgment and decree are sustainable in the eye of law. 11. In this case the execution of the agreement is admitted. According to the plaintiff Rs.50,000/- was paid at the time of execution of agreement Ext. 1. Thereafter on demand of Rs.5,000/- was paid on 31.1.2005 and the defendant in token of receipt of said amount had signed on the back of first page of the deed of agreement Ext.1. At paragraph 1 of the plaintiff it is specifically pleaded by the plaintiff that the land and house detailed in Schedule 1 belonged to the defendant and he agreed to sell the same with the plaintiff for a consideration of Rs.3,05,000/-. Likewise at paragraph 10 as stated above it is specifically mentioned that the suit is valued at Rs.3,05,000/- being the value of the land in suit. In the description portion of the land i.e. in Schedule 1 the area has been mentioned 8 dhur. From perusal of the plaint it appears that there is no pleading in the plaint that the consideration amount will increase or decrease according to the measurement of the land. From plain reading of the plaint it is clear and specific that Schedule 1 property was agreed to be sold for Rs.3,05,000/- and out of that Rs.50,000/- was paid as advance. This fact is admitted by the defendant. So far the payment of Rs.5000/- on 31.1.2005 is concerned it is denied by the defendant. According to the pleading in pargraph 3 and 8 of the plaint it is case of the plaintiff that she is always willing and ready to pay the balance consideration amount. It means that she was always ready and willing to pay Rs.2,50,000/-. 12. Now let us see the evidences, PW 1 is the plaintiff Lalti Devi herself. At paragraph 4 she has stated that from the date of baibayana she was ready to pay the balance consideration amount and get the sale deed registered. She repeatedly requested the defendant to get -9- the land measured and execute the sale deed but he avoided always. At paragraph 3 she has stated that there was agreement that prior to sale deed the land will be measured and if the area will be found less than the price of the less land will be deducted. It may be mentioned here that so far this case that the price will be decreased for the less area of land that may be found on measurement is not pleaded in the plaint. Moreover from perusal of the Ext.1 coupled with the pleading in the plaint it appears that it was not the intention of the parties that measurement of the land is a conditions precedent for executing of the sale deed. The parties entered into agreement with open eyes seeing the area of the land and house standing thereon. There is a clause in the agreement that if any deficit will be found in future the plaintiff will be compensated for the same. Therefore, apparently it was not the condition precedent that measurement should be done prior to execution of the sale deed. Therefore, it is not specifically pleaded in the plaint also. Had it been the condition precedent for execution and registration of the sale deed then time should not have been given for six month from the date of agreement and there should have been a clause as to what will happen if measurement is not done. From perusal of the agreement as stated above from the first portion it will appear that the parties agreed for consideration of Rs.3,05,000/- for the land and house existing. However, at the last portion of the agreement it is written that prior to execution of the sale deed land shall be measured and proportionately amount will be paid. In my opinion, this last portion will never regulate the main contract between the parties. 13. PW 3 has proved the signature of the defendant on first page of Ext.1 and the signature has been marked as Ext.2. Except these evidences there is no other evidence available on record on -10- behalf of the plaintiff. Although it is pleaded that the plaintiff sent a legal notice but the said notice has not been produced. In such view of the matter, the only case is as pleaded in plaint according to requirement of law and as stated by the plaintiff in her evidence in one line as discussed above. 14. The learned counsel appearing for the plaintiff respondent submitted that according to law the plaintiff is required to aver in the plaint regarding continuous readiness and willingness and adduced evidence in support of the same and in this case the plaintiff has done so. 15. In the case of Phullan Mian and others Vs. Jogendra Ram and another 2006 (3) PLJR 526 this Court while considering the provision of Section 16-C of the Specific Relief Act relying upon the decision of the Apex Court in paragraphs 11 to 13 has held as follows : “11. It is settled principle of law that for establishing the case of the specific performance of contract, it is essential to state and prove that the plaintiff was always ready and willing to perform his part of the contract. Mere insertion of the averments in the plaint that the plaintiff was always ready and willing to perform his part of the contract is not sufficient to decree the suit for the specific performance of contract but this statement must be proved by convincing evidence either oral or documentary. 12. Section 16 of the Specific Relief Act, 1963 (hereinafter to be called as “the Act”) imposes bar in granting relief for specific performance of contract if certain facts are not proved. Sub-section (c) of Section 16 of the Act is relevant in this case which runs as follows :- “Specific performance of a contract cannot be enforced in favour of a person.- (c) who -11- fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms of the performance of which has been prevented or waived by the defendant.” 13. Thus, Section 16 of the Act referred above, specifically says that in order to obtain decree for specific performance of contract, the plaintiff has to aver as well as to prove that he has performed or has always been ready and willing to perform the essential terms of the contract and if it is found that the plaintiff has failed to prove by cogent evidence that he has performed and/or has always been ready and willing to perform the essential terms of the contract, he will not be entitled for decree of specific performance of contract. In this regard, I place reliance upon the decision of the Apex Court in the case of Jugraj Singh and Anr. Petitioners vs. Labh Singh and Ors. Respondents reported in AIR 1995 Supreme Court 945. Paragraph 3 of the said decision which is relevant in this case runs as follows:- “Section 16(c) of the Specific Relief Act, 1963 provides that the plaintiff must plead and prove that he has always been ready and willing to perform his part of the essential terms of the contract. The continuous readiness and willingness at all stages from the date of the agreement till the date of the hearing of the suit need to be proved. The substance of the matter and surrounding circumstances and the conduct of the plaintiff must be taken into consideration in adjudging readiness and willingness to perform the plaintiff’s part of the contract.” -12- 16. Therefore, the basic principal behind Section 16(C) is that any person seeking benefit of the specific performance of contract must ever and prove that his conduct has been blamishless throughout entitling him to the specific relief. The provision imposes a personal bar. The court is to grant relief on the basis of the conduct of the person seeking relief. If the pleading manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied relief but it is clear that the averment of readiness and willingness in the plaint should not be a mathematical formula which should not be in specific word only. The averment in the plaint coupled with evidence should clearly indicate the readiness and willingness of the plaintiff. The conduct of the plaintiff should be reflected from the subsequent circumstances and conduct of the plaintiff. No doubt readiness and willingness could not be treated as a straight jacket formula and that has to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned. In the present case, except the mathematical pleading and evidence that the plaintiff was always ready and willing to perform her part of the contract there is no cogent and reliable evidence. It is stated in the evidence in examination in chief by PW 1 that many times he approached the defendant to receive consideration amount and register the sale deed. Except this bald statement in the pleading as well as in evidence there is nothing on record to show that the plaintiff was ever ready and willing to perform her part of the contract. The onus was upon the plaintiff to adduce reliable evidence as to when the money was offered to the defendant and what was his reply. Whether the defendant ever refused to execute the sale deed or he refused to accept the balance consideration amount. Whether the -13- plaintiff ever called upon the defendant to the registry office. All these questions are not clear from the pleadings or evidence. 17. In Bishwanath Mahto vs. Srimati Janki Devi AIR 1978 Patna 190 Hon’ble L.M. Sharma, J. as his Lordship then was pointed out that a person asking for specific performance of contract for sale has to plead and prove that he is ready and willing to perform his part of contract continuously between the contract and the date of hearing of the suit. In the present case at our hand as stated and discussed above except the mathematical pleading and evidence no convincing evidence has been adduced so as to entitle the plaintiff to get discretionary relief of specific performance of contract. 18. The other aspect of the matter is that the defendant denied to have signed on the back of first page of Ext.1. In the evidence also he specifically denied his signature and receipt of Rs.5,000/-. In such circumstances it was for the plaintiff to have proved that the signature is of defendant No.1. From bare perusal of the signature appearing in the other pages of Ext.1 and the signature on the back of first page of Ext.1 which has been marked as Ext.2 it will appear that it is not the signature of the defendant. The learned court below without looking to the signature placed the onus on the defendant to prove the same that it is not the forged signature. PW 3 no doubt has proved the signature of the defendant Ext.2 but mere statement made by him cannot be relied upon. There is no explanation as to why he did not sign as a witness. What prevented him from signing and/or identifying the signature of the defendant. Moreover, as stated above on naked eye the differences are writ large and cannot be relied upon by the judicial court. The learned court below