1 405 1 RSA No 1972of 1986 t 1 n IN THE HIGH COURT OF PUNJAB A HARYANl AT CHANDIGARH RSA No19720f 1986 Dateofdecision 200 82 010 BhajanSingh 1 0 versus 0 0 NaurataSinghand others I Responden I CORAM HONBLE MRJUSTICE KCPURl Z 2 t Presentl Mr GSPunia Advocate for theappellants Mr GSDhaliwalAdvocatefor the a KCPURI J a0 This is regularsecondappealdirectedbyBhajanSinghpiaintiff Z against thejudgmentand decreedated1721986 passedbyShri ICKGarg Om learnedAdditional District JudgeLudhiana vide which the appealprefened bythe againstthejudgment and decree dated211985 passedby Shri KSBhullar SubordinateJudgeIst Class Sainrala was dismissecl Brieflythe facts gathered 8om the record are that defendant No l was the owner of the suit propertyand on 241 980 the defendant No l had agreedto sell the same for a consideration of RsA0001 Defendant No 1 received Rs5001 as earnest money and executed an agreement to sell in favour of the plaintiffThe sale deed was to be . Anita 2012.05.29 12: 25 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 406 RSA No972 of 1986 2 vd executed by 30101980 It was agreedthat in case the defendant No l failed to execute the sale deed theplaintiffcould getthe sale deed executed throughCourt by specific of the agreement to sell On the failure on the part of theplaintiff to getthe sale deed executed the earnest moneywas agreed to be forfeited and the contract was to be cancelled The of the same were to be borne by the plaintif The defendants 1tX No to 4 beingbrothersofthe defendantNo1 on comingto know staned 0 effortsto intluencethe defendantNol to preventthe execution of the sale 0 I deedin favour of theplaintiff It has furtherbeen allegedbythe plaintiff that he filed a civil suit lIl the Civil Court for permanentinjunction to I prevent the sale in favour ofdefendant Nos to 4 Despite status quo order Z passedbythe trial Court defendantNos to 4 got a flctitiousand forged sale deed for Rs35001 executedfrom the defendantNol on 283980 111 I orderto the interestsofthe plaintiffwithregardto the suit propeny a The defendantstried to have the said sale deed The plaintiffwas r mmo to get a copy of the stay order Oll 281980 and the Tehsildar 6Sub Z Khanna was dulyinformed aboutthe stayorder butofno use tl The defendantsNo to 4 in connivance with the Sub RegistrarThe Sub Registrarignoredthe telegramthe applicationand the stay order and the saledeed The said saledeedis not bindingupon the plaintiff andis liable to be ignoredThe suit was disposed of on the statement ofthe defendantsthat theywould not transferthe property The plaintiffwould have got the sale deed executed in his favour before the date 6xed and duringthe pendency of the suit the plaintiffwas readyto have the sale . Anita 2012.05.29 12: 25 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 407 RSA No 1972of 1986 3 pl On notice defendant Nol did not appear despiteservice However defendant Nos2 to 4 contested the suit and admitted that defendantNol was the owner of the suit propertybut deniedthe execution ofthe agreementin question in favour ofthe plaintiffIt is allegedbythem thattheyhave been in actualphysical of the suit propertyfor the last ten years Naurata Singhhad executedan agreementin their favourOIl 1 t 203980 at villageRajowalto sell the property111 disputefor a 0 consideration of Rs35001 and had received Rs3001 In cash as earnest 0 moneyat that time Theyhave also contendedthat in accordancewith the said agreementto sell the defendant No l had executed a sale deed I the suit property on 2631 980 which was on Z 281980 A sum of Rs3000 was allegedlypaid as balance sale 2 C2 consideration to the defendantNo l before the Sub RegistrarMutation I with regardto the sale of the suit propertyis also stated to have been c45 sanctioned in favourof the defendantsNo to 4 in accordancewith thesale a0 deeddated2671980 According to them theplaintiffhad never informed 3 Z them regarding theallegedagreementto sell in his favour and had also not tl servedany notice upon them Theyhave also averredthat the plaintiff had never demanded of the suit propertyfrom them The answering defendantsclaimed that theyare bona fide for consideration without any notice of theprevious contract Denyingother averments they prayedfor dismissal ofthe suit From the pleadingsof the parties followingissues were framed 1 Whether the defendantNol had executed an of sale dated 2431980 111 favour of the plaintifffor a . Anita 2012.05.29 12: 25 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 408 RSA No 1972of 1986 4 r d considerationof RsA0001 and had received Rs001e as earnestmoney20PP 2 Whether the defendantNol has committed breach of contract20PP 3 Whetherthe alwaysbeenreadyandwillingto perform his partofthe contract 20PP 4e Whetherthe defendantsNo to 4 are bonafide for considerationandwithout notice ofthe suit property from the defendantNol 20PD 1 5 Whetherthe suit in presentform is not maintainableas 0 alleged in the objwtionNol 70PD 0 6 Whether the sale dated 263980 in favour of the Z defendants N02 to 4 cannot be set aside without seeking cancellationofthe saledeed20PD m r 7Whether the plaintiff is entitledto the grantof decreefor Z possessionthrough specific ofthe agreementto sell 2OPP r 2 0 8 Reiief 4r I a5 The parties have led their respective evidence on the aforesaid O3 After appraisal of the evidence the learnedtrial Court decreedthe IC lSSues am Z suit for the recovery of Rs5001 with costs of the suit against Ll defendant No only However suit againstdefendantNos to 4 stood dismissedvide judgment and decreedated21 1985 FeeIingdissatis6edwith the judgmentand decree dated 211985 plaintiffpreferred an Coun The said appealwas dismissedby learnedAdditional District JudgeLudhiana vide judgment anddecreedated 172 1986 Still feelingdissatisfiedwith the above and decree passedby both the Courts below has the presentregularsecondappealbeforethis Court . Anita 2012.05.29 12: 25 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 409 RSA No19720f 1986 5 V 1 r I have heardleamedcounselfor the partiesand have gone through therecordsofthe case Learnedcounsel for the has submittedthat the Uial Court has returnedfindingon issue Nos2 and 4 in favour ofthe plaintiffIt has been held by the trial Court that defendant No l has executed agreementdated 243 1981 lll favour of the plaintifffor a 1 considerationofRsAOOO and had received Rs001 as eamest money It 1 0 hasalso been allegedbythe trial CourtthatdefendantN0 l hascommitted 1 breachof the agreementbyexecuting the sale deed in favour of defendant Nos to 4 The trial Court has also held that defendantNos to 4 are not I r the bona fide for considerationand without notice of the suit Z from defendant Nol It has been lrther observed that defendant 2 LX No 1 despite on the partof the plaintiffhas executed forged documentof sale in favourof defendantNo to 4 and defendantNos2 to c8 4 have the knowledge of the agreement in favourof the plaintiff Issue ao Nos and 6 were also decided in favour ofthe plaintiffbythe trial Coun W7 a2e The trial Court hasgranted the altemativerelief on the groundthatplaintiff Llm has failed to prove that heremainedreadyand willingto performhis partof thecontract The flndingon lssue Nosl 2 4 5 and 6 were not challenged bythe defendantsbeforethe First Appellate Court byfllingcrossjections or at the time of argumentsbefore the First AppellateCourt So the findings on theseissuesbecamea findingof fact and cannot be interferedin theregularsecondappealOtherwisealso no crossjectionhas beenfiled bythe defendantsin theregularsecondappealregarding the issues It is submitted that approachof both the Courts below in . Anita 2012.05.29 12: 25 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 410 RSA No19720f 1986 6 decidingissue No3 willingness is the result of and the evidenceon the Sle Itis submittedthatagreementto sell which stands provedwas executedon 243 1980 The plaintiffe filed suit for permanentinjunctionrestraining defendant No l fromalienating the suit propertyandobtainedthe order of injunction Oom the Civil Court on 26 1980 The defendant Nos to 4 in spiteof the 1 1 ordergotthesale deed intheirfavour on 2831980in spiteof 0 stloff opposition made by the plaintiffwhile executing the sale deed by defendantNo l in favour of defendant Nos to 4 The presentsuit was I lD flled on 3 1981ie aler the executionofthe sale deed dated2871980 in I favour of defendantNos to 4 The contract of sale was between the Z plaintiffand defendantNol DefendantNol has breachedthe contract by 2 r the sale deed in favourofdefendantsNo2 to 4 on 2801980 and I the findings in this regardhavebecomeflnal and cannot be 111 c8 the presentsecondappealThe plaintiffin No ofthe plainthas ClQ pleaded that he had beenreadyand willingto perfoimhis part V7 Z of the contract and is still readyfor the same but the defendantNos to 4 tl havenot cared for the agreementto sell in favourof the plaintiffexecuted by defendantNo The plaintiffwhile appearing as his own witness has also statedthat he had been readyand willingto perfonnhis part of the contract and is still readyand willing So both the Courts below have misreadand the evidencein this regardDefendant Nos2 to 4 are brothersof defendant No1 The sale deed dated 2831980 is the result of 8aud committedby defendantNos2 to 4 upon the plaintiff The trial Court hasgivena clear cut findingthat in spiteof stiff opposition made . Anita 2012.05.29 12: 25 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 411 RSA No19720f 1986 7 d by the plaintiff the sale deed dated 2831980 has been executedby defendantNo l in favour of defendantNosl to 4 Since defendantNo l has alreadyexecutedthe sale deedin favour of defendantNos2 to 4 much prior to the execution of the sale deed to be executed ln favour of plaintiffby defendant Nol as such the question of readyand willingness becamean academic one There were no privityof contract between plaintifnd m C2 defendantNos to 4 In a suit for speciflc regarding 0 immoveable property the normal relief is grant of decree of specic I By disallowing the decreeof speciflc both the Courts below have givena premiumto defendantNo to 4 for their 4 misdeed of gettingthe sale deed executed Oom defendantNol in their Z favourThe Courts are meant to advancethe cause ofjusticeA person 0 who tried to be oversmart before the Civil Court should be dealt in with I heavyhands Both the Courts below have declined the relief of specific C8 on the groundthatplaintiffhas not pleaded that he is readyand r m willingto performhis partofthe contract and that evidence in thisregard 1S Z not up to the mark The said findingsare the result of and tl the evidence As the factum of readinessand willingness has been dulypleadedin para No of the plaintand the statementin this regardhasbeenmadebytheplaintiffwhich hasbeen ignored It is lrther submittedthatthe Honble ApexCoun has dealtltl Section166cof the SpeciflcRelief Act 1963 and has held in authority MotilaI Jain vs SmteRamdasi Devi and others JT 2000 81SC 59 that no speciflcpleadingis requiredto pleadthe averments of readiness and willingnessIt is sufflcient if it is pleaded that plaintiffis readyand willing . Anita 2012.05.29 12: 25 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 412 pRSA No 1972of 1986 8 1 toperfonnhis partofthe contract It has been further submitted that in Anielase Yohannan vs Ramlatha and OrseJT 2005 181SC 499 it has beenheld that attending Circumstances should be taken into consideration while decidingthe issue of readinessand willingnessThe plaintiffSled civil SUlt and defendantNol in spiteof injunction order getthe sale deed executed ln favour of defendantNos to 4 So the conduct of the plaintiffis clear 0 thathe hasalwaysbeenreadyandwillingto perform his partofthe contract 0 Learned counsel for the has also relied upon the followingauthorities I 4 lHarbakhsh Sinoh Gill and others VSe SheRamRattan Z and another 1987 11PLR 185 2 21Surieet Sineh VSe Kartar Singldeceasedl Repe bv LeRs and another 1987PeLJ 184 9 I 31International Contractors Ltd vs Parsanta Kumar Sur c8 deceasedl and others AIR 1962SupremeCourt 77 and 0 41MM0Se Investments Madurai and Orse VSe VVeerappan 1m2 and OrseAIR 2007SupremeCourt 26630 Z In replyto the abovenotedsubmissionslearnedcounsel for the m has supported the of boththe Courtsbelow lt is furthersubmittedthat it is findingoffact recordedbyboth the ICounsbelow that theplaintiffhas neitherpleaded nor provedthat he remainedreadyand willingto performhis part of the contract The plaintiffis required to prove the readinessand willingnessagainst also 111 vlew of authorityAzhar Sultana VSe BeRaiamani82Orse JT 2009 SC 6220It ilrther contendedthat the defendantshaveraised construction . Anita 2012.05.29 12: 25 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 413 1 1 1 RSA No 1972of 1986 9 1 over the suit propertyand the agreement relates to the year 1980 So a decreefor specific of contract afterperiodof 30 yearswould not be in consonance of justiceas hugeconstructionhas been raisedbythe contesting defendants The altemative relief has alreadybeen granted to the plaintiffSo the prayer has been made for dismissaI of the appeal Learned counsel for the has also relied upon following 1 l authorities 0 Ju2rai Sineh and another vse Labh SinPh and others 0 AIR 1995 SupremeCourt 945 9 I 21 Abdul Khader Rowther vs PSara Bai and others AIR 1990 SupremeCourt 682 3 631Pukhrai DeJain and others VSe GeGopalakrishna120041 Z 7 SupremeCourt Cases 251 9 2 410usephVarehese VSe Joseph Alev and others 1969 Cr SupremeCourt Cases 539 and 51RamAwadh ldeadl bv LRse And others VSe a3 Achhaibar Dubevand another AIR 2000 SupremeCourt 8600 rlo Z I have considered the submissions made by boththe leamed 0m counselfor thepartiesand havegonethrough therecordsofthe case From the submissionsmade by both the sides following substantialquestionsof law havearisen the findingof both the Courts below that plaintiff has failed to pleadand prove that he is readyand remained readyand willingto performhis part of the contract is the result of and the evidenceon the tlle 2 29Whether the relief of speciflc can be withheld . Anita 2012.05.29 12: 25 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 414 RSA No1972of 1986 10 in view of Section 20 of the SpecificRelief Act from the factsofthe present case 2 Thetrial Court has observedthat theplainthas not beendrafted in accordancewith provisions of Form 47 and 48 of Appendix A of the Codeof Civil Procedure6in short CPC9 nor he has statedas such while as PW1 So the plaintiffhas failed to prove that he has always 1 0 been readyand willingto performhis part of the contract The First 0 Appellate Court has observed in para No7 of the judgment that plaintiff 0 neitheraverrednor provedthat he was readymoneywith him to getthe sale I D deed So in Vlew in Dhanna Singhand another Vs I Malkiat Singhand another 1983 PLR 15 the plaintiffhas failed to Z prove that he remainedreadymoney to perfonn his partof the contract and 2 l remainedwillingto getthe sale deed and as suchhe hasfailed to I proveboththe in the Court c8 The factual positionregardingpleadingis mentioned in para a2 mnao No7 ofthe plaintwhich is as under Z That the plaintiffwas readyto get the salevdeedexecuted in Llw his favour before the next date of hearingof the case During thependency of the civil suit theplaintiffwas willingto get the saledeed executedin his favour Even todayhe is willing to get the saleleed executedin his favour but defendant no and defendantnos2 to 4 did not bother about his willingness The defendant no l has not compliedwith the terms and conditions of the agreementand as such the lapseis not at the partof the plaintiff He Nol hasgotforgedsale . Anita 2012.05.29 12: 25 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 415 1 RSA No 1972of 1986 11 J deedexecutedin favourof defendantnos2 to 4 Hence the plaintiff1S entitledto get the terms and conditions of the compliedwith and orders may be passedirecting defendantnos2 to 4 to keepthemselvesaside from the sale deedexecutedbydefendantnol 31 Plaintiff wanted to get the sale deed in his favour 1 0 beforethe agreeddate The plaintiffhas even beenreadyto get the sale 0 deed executedduringthe of the suit and is still readyto getthe 0 sale deed executed but defendantNosl and 2 to 4 have not cared for that DefendantNol has breachedtheterms of the agreementand the plaintiff I e cannotbe blamed for that Defendant Nol has executedthe saledeed in Z favourof defendant Nos 2 to 4 The plaintiffis entitled to a decree for 1X specific of the agreementThe plaintiffwhile appearing as I PW has stated that he is readyto get the sale deed executed He has c8 further statedthat earlier also he was readyto get the sale deed executed r Defendant No has executedthe sale deed in favour of defendantNos2 to Z 4 in spiteofthe injunction order 0m Now thequestion ariseswhetherthefindings of both theCourts below that plaintiffhas neither pleaded nor provedthat he is readyand willingto performhis partof the contract has resulteddue to and the evidenceon the flle Both the Courts below have givena concurrent fmdingthat plaintiffhas been able to prove the execution of the agreementin question in his favour As per terms of the agreementEx1 dated2471980 the sale deed was to be executedon or before 300980 The sale deed was . Anita 2012.05.29 12: 25 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 416 1 RSA No 1972of 1986 12 l executedon 2871980 in favour of defendantNos2 to 4 It 1S also not disputedthat injunctionorder restraining defendant Nol from alienating the suit propertywas passed on 26980 Issue No2 whether the defendantNol has committedbreach of contract was framed Issue NoA was framedby the trial Court that whether defendantsNo2 to 4 are bona fide purchaser for consideration without notice of the suit property 1 tX from defendant Nol Both the Courts below have givena concurrent 0 findingthat defendant No has committed breach of the contract and 4 defendant Nos2 to 4 are not the bona Ode All these lssues D involved question of fact and thesequestions of fact becomefinal so far as I second appealis concemed as the same have not been during Z the course of arguments Once both the Courts below have come to the 2 conclusion that it is the defendant No who has committed breach of I and defendantNos 2 to 4 havepurchased the propertyin spiteof c8 injunction order In thesecircumstancesI am of the considered view that cJ2 the trial Court has become while decidingissue No3 in Z respect of pleadings readiness and willingness and provingthe same as tl observedabove The plaintiffhaspleaded andhasdeposed in the Court that he had been willingto get the sale deed executed in his favour in terms of the agreementand is still readyand willingto performhis part of contract pleadingof readinessand the Honble ApexCourt in Moti Lal Jains case tsuDralobservedas under That decision was relied upon by a three JudgesBench of this Court in SyedDastagirscase supralwhereinit was held that ln construing a pleain any pleadingcourts must . Anita 2012.05.29 12: 25 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 417 RSA No19720f 1986 13 W keepin mind that a plea1S not an expression of art and science but an throughwords to placefact and law of ones case for a reliefe It is pointedout that in India most of the pleasare drafted by counsel and hence they inevitablydifYer from oneto the other thus to gathertrue spiritbehind a pleait should be read as a whole and to test 1t whether the plaintilYhas performedhis one has 0 to see the pithand substance of the plea It was observed 4 I Unless a statute requires a pleato be m any particular form it can be in any forme No speciflc I 4 or language is required to take such a pleaeThe Z language in Section 16c1of the SpecificRelief Act 1963 2 doesnot requireany speciflc but onlythat the I plaintiHmust aver that he has performed or has always c8 O been and is to performhis part ofthe contracte So W7 the compliance of readiness and willingnesshas to be m Z spiritand substance and not in letter and forme It is thus clear that an averment of readiness and wUlingness in the plaintis not a mathematical formula which should onlybe in specificwords If the averments in the plaintas a whole do clearlyindicate the readiness and willingnessof the plaintifTto fulfill his part of under the contract which is of the suit the fact that theyare differently worded will not militate againstthe readiness and of the plaintifYln a suit of specific . Anita 2012.05.29 12: 25 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 418 RSA No 1972of 1986 14 of contract for sale Both the Courts belowhavefailed to the fact that no specific or is required to take the pleaof readiness and willingness to perform his partof the contract So both the Courts below have misread the pleadings and evidence of the aintiff issueofready and willingness 1r As discussedabove theplaintiffhaspleaded and provedthathe 0 hasbeenreadyand willingto perfonnhis partofthe contract 0 Both the Courts below have not taken into account the conduct I of the partiesfor deciding this 1SSue The defendantNos to 4 are none I else but the real brother of defendantNo1 Defendant No1 in order to Z avoid the agreementexecutedthe saledeedin favour ofhis own brotheron 2 287980 ie merelyafter four daysof the execution of the agreement 111 0 favourof the plaintiffThe conduct of defendantshas been by I c8 both the Courts below holdingthat in spiteof injunction order the sale deed rn has been executed By not passinga decree both the Courts below 7 Z indirectly the illegalact of the defendants 111gettingthe sale Ll deed by defendant Nol 111favour of defendant Nos2 to 4 his own brothers In the contract of sale therecan be breachof contract on the part of one of the partieswhich resulted lnto the litigationBoth the Courts below have givena findingthat breach of contract is on the part of defendants The conduct of plaintifflS also relevant The plaintiff comingto know about the intention of defendantNol to execute the sale deed in favour of defendant Nos2 to 4 obtained an injunctionorder on 2601980 So the filingof the suit itself shows the conduct ofthe plaintiffthat he is readyand willingto perfonnhis partofthe . Anita 2012.05.29 12: 25 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 419 RSA No 1972of 1986 15 7 1 contract Plaintiff while appearing in the Court has alsostatedthat he has beenreadyand willingto perform his partof the contract The sale deed was to be executed by 30101980 but the defendantshave committed breach of contract much priorto that date There wasno privityof contract betweentheplaintiffand defendantNos2 to 4 and plaintiffdrives the throughagreement dated247980 1Lr In authorityJugrai Singh and anothers case Isupral the 0 Honble ApexCourt in portionofparaNo5 held as under 1 0 That plea is specificallvavailable to the vendorldefendant I It is personal to hime The subsequentpurchasershave got Z only the right to defend their purchase on the Premisethat Z thev have no prior knowledgeof the agreement of sale with 2 the plaintitE Thev are bona flde purchasersfor valuable I consideration Though thev are necessarv Darties to the c45 suit since anv decree obtained bv the plaintHYwould be CJ3 binding on the subsequentPurchasers the plea that the wm Z plaintiiY must alwavs be readv and wUling to perform his 0 part of the contract must be availableonlv to the vendor or his 1ega1representatives but not to the subsequent Purchasers The High Court therefore was right in reiecting the petitioners contention and rightlv did not accept the plea We do not flnd anv ground warranting interference However in the latterauthorityHonble ApexCourt in Azhar Sultanas case Isupral has held that plaintiffhas not onlyto prove the readiness and willingnessagainstthe person who has executed the . Anita 2012.05.29 12: 25 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 420 RSA No1972of 1986 16 but againstthe also However the fact remains thatplaintiffhas pleaded and hasprovedbydeposingin the Court that he is readyand willingto