Case: Garikapati Veerayya Vs. Nannapaneni Subbayya Chowdhary &amp; Others

Court that since respondent No. 1 had made a clear, categorical and specific case in that behalf, it was not open to him to give up that case and to contend in the alternative that even if he had not the cash ready with him, he could have easily raised the said amount. Umamaheswaram, J.,. thought that if such a new plea was allowed to be raised in the appeal for the first time, it would be unfair to the appellant, whereas Subba Rao, C.J., took the view that the approach adopted by the trial Court was wrong and that, in law it was open to respondent No. 1 to prove that he could have raised the said amount at the relevant time. In our opinion, the view taken by Umamaheswaram, J., is right. Subba Rao, C.J., appears to have ignored the specific plea made by the respondents in their plaint. He has not noticed the fact that the plaint did not make any averment as it should have about the respondents readiness and willingness to perform their part of the contract, and the only allegation made in that behalf was that respondent No. 1 had the necessary cash at all material times. That being so, it would not be right, we think, with respect, to hold that the trial Court was bound to enquire whether respondent No. 1 could have raised the said amount. It was open to respondent No. 1 to make that plea and then the trial Court could certainly have considered it. But if the first respondent made out a much higher claim and suggested that he would prove that he had the necessary amount in his possession it would not be right to find fault with the trial Court if it considered that plea in the light of the evidence adduced by the respondent in its support and on the merits, rejected it. The finding of the trial Judge on the merits is unexceptionable and has not been dissented from in the High Court. The only question which calls for our decision, therefore, is whether the Appeal Court should have allowed the respondents to make out a new plea of fact for the first time in appeal. In dealing with tins question, we must have regard to the pleadings made by the parties on the point. and as we have already indicated, the pleas made by the respondents and the evidence led on their behalf unmistakably indicate that their case was that cash was ready in the hands of respondent No. 1 and respondent No. 1 was willing to pay it to the appellant at all material times.17. Besides, there are some general considerations which are inconsistent with the view taken by the majority of the Judges in the High Court. If respondent No. 1 had the necessary amount ready in his possession, it is very unlikely that the would keep it with himself and not pay it to the appellant, because a fairly large amount lying idle with him carried no interest, whereas non-payment of the said amount to the appellant involved the liability of respondent No. 1 to pay interest. That is one consideration which is inconsistent with the case of the respondents.18. The other consideration which has not been duly taken into account by the High Court is the conduct of respondent No. 1 in depositing the amount on 24th November, 1948, with his lawyer. This deposit was made after respondent No 1 received Rs. 6,900 from respondent No. 2 on 22nd November, 1948. It is not without significance that respondent No. 1 who claims to have had the balance ready with him during the whole of the period, has had to agree to sell the property to respondent No. 2 even before a conveyance was executed in his favour and as the trial Court has observed, and rightly, there is every reason to believe that it is out of the amount of Rs. 6,900 paid by respondent No. 2 to respondent No 1 that the deposit came to be made on 24th November, 1948.19. In this connection, the demand made by respondent No. 1 on the appellant to produce evidence about the discharge of the prior mortgage also throws some light The respondents solemnly impleaded defendant No. 2 in the present suit on the plea that defendant No. 2 was setting up a claim in respect of the property in question and when defendant No. 2 denied that he made any conflicting statements they told the trial Court that they did not press that part of their case. It is unnecessary to consider the evidence led by the parties on this part of the case, but we cannot help observing that the trial Court appears, on the whole to be right in coming to the conclusion that respondent No. 1 invented this requisition in order to gain time; otherwise it is not easy to understand how without satisfying himself that the prior mortgage had been discharged, he agreed to convey a good title to respondent No. 2 and how at the trial, both the respondents agreed to take a document from the appellant without adjudication about the said alleged claims of the prior mortgagee. Those general considerations in our opinion, lend strong support to the view taken by the trial Court that respondent No. 1 did not passes the necessary cash, and so, could not succeed in the present suit for specific performance. If respondent No. 2 had pleaded at the trial that he would have been able to raise the necessary amount, the appellant would have had an opportunity to meet that case; but since no such Plea was made at the trial, it was not open to him to raise this point for the first time in appeal. Therefore, we are satisfied that the High Court erred in entertaining this plea and allowing the respondents claim for specific performance on the ground that the said plea had been established.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]Since we have come to the conclusion that the trial Court was right in holding that respondent No 1 has not shown that he was ready and willing to perform his part of the contract we do not think it necessary to consider the other issue as to the validity of the rescussion of the contract. There is no doubt that in a suit for specific performance the plaintiff must show that he was ready and willing to perform his part of theIt is true that the issue which was framed in this behalf was a general issue about the readiness and willingness of the first respondent to perform his part of the contract, but the allegation made in the plaint was more precise, concrete and narrow; it was that the first respondent had kept ready with him the whole of the balance due to be paid to the appellant. It is significant that when respondent No. 1 gave evidence he sought to support this narrow, specific and clear case. He stated on oath that he hadand he had told the appellant that the money was ready with him and that he would pay it to him immediately if only the appellant was willing to execute the document. According to his evidence, by the first week of March, he had kept the balance ready with him. It is thus clear that the parties went to trial on this issue by reference to the narrow case made by respondent No. 1 that he had the balance ready with him from March, 1948. The trial Court examined the whole of the evidence, oral and documentary, led by respondent No. 1 in support of his plea and came to the conclusion that he did not have the necessary money till 23rd November, 1948 to perform his part of the contract, and so, in order to cover up his inability to produce that amount, he made unreasonable demands on the appellant by calling upon him to produce satisfactory evidence about the discharge of the prior mortgage. It may be stated at this stage that though the respondents impleaded defendant No. 2 on a specific plea that defendant No. 2 was making contrary claims on the strength of the prior mortgage, at the trial they gave up that plea and offered to have thewithout any proof about the satisfaction of the said earlier mortgage.16. When the appeal was argued before the High Court, it does not appear to have been urged by the respondents that the finding of the trial Court on the narrow point raised before it was wrong. In fact, though there was a difference of opinion between Subba Rao, C.J. and Umamaheswaram, J., on other points raised in the appeal, all the three learned Judges who heard the appeal in the High Court have not differed from the finding of the trial Court that respondent No. 1 had failed to prove his plea that he had the balance ready with him since March, 1948. The difference arose on the question as to whether it was essential that respondent No. 1 must prove that he had the cash with him, or whether it would be enough if he showed that he could have raised the necessary amount at all material times. On this point, Umamaheswaram, J., held agreeing with the trial Court that since respondent No. 1 had made a clear, categorical and specific case in that behalf, it was not open to him to give up that case and to contend in the alternative that even if he had not the cash ready with him, he could have easily raised the said amount. Umamaheswaram, J.,. thought that if such a new plea was allowed to be raised in the appeal for the first time, it would be unfair to the appellant, whereas Subba Rao, C.J., took the view that the approach adopted by the trial Court was wrong and that, in law it was open to respondent No. 1 to prove that he could have raised the said amount at the relevant time. In our opinion, the view taken by Umamaheswaram, J., is right. Subba Rao, C.J., appears to have ignored the specific plea made by the respondents in their plaint. He has not noticed the fact that the plaint did not make any averment as it should have about the respondents readiness and willingness to perform their part of the contract, and the only allegation made in that behalf was that respondent No. 1 had the necessary cash at all material times. That being so, it would not be right, we think, with respect, to hold that the trial Court was bound to enquire whether respondent No. 1 could have raised the said amount. It was open to respondent No. 1 to make that plea and then the trial Court could certainly have considered it. But if the first respondent made out a much higher claim and suggested that he would prove that he had the necessary amount in his possession it would not be right to find fault with the trial Court if it considered that plea in the light of the evidence adduced by the respondent in its support and on the merits, rejected it. The finding of the trial Judge on the merits is unexceptionable and has not been dissented from in the Highdealing with tins question, we must have regard to the pleadings made by the parties on the point. and as we have already indicated, the pleas made by the respondents and the evidence led on their behalf unmistakably indicate that their case was that cash was ready in the hands of respondent No. 1 and respondent No. 1 was willing to pay it to the appellant at all material times.17. Besides, there are some general considerations which are inconsistent with the view taken by the majority of the Judges in the High Court. If respondent No. 1 had the necessary amount ready in his possession, it is very unlikely that the would keep it with himself and not pay it to the appellant, because a fairly large amount lying idle with him carried no interest, whereasof the said amount to the appellant involved the liability of respondent No. 1 to pay interest. That is one consideration which is inconsistent with the case of the respondents.18. The other consideration which has not been duly taken into account by the High Court is the conduct of respondent No. 1 in depositing the amount on 24th November, 1948, with his lawyer. This deposit was made after respondent No 1 received Rs. 6,900 from respondent No. 2 on 22nd November, 1948. It is not without significance that respondent No. 1 who claims to have had the balance ready with him during the whole of the period, has had to agree to sell the property to respondent No. 2 even before a conveyance was executed in his favour and as the trial Court has observed, and rightly, there is every reason to believe that it is out of the amount of Rs. 6,900 paid by respondent No. 2 to respondent No 1 that the deposit came to be made on 24th November, 1948.19. In this connection, the demand made by respondent No. 1 on the appellant to produce evidence about the discharge of the prior mortgage also throws some light The respondents solemnly impleaded defendant No. 2 in the present suit on the plea that defendant No. 2 was setting up a claim in respect of the property in question and when defendant No. 2 denied that he made any conflicting statements they told the trial Court that they did not press that part of their case. It is unnecessary to consider the evidence led by the parties on this part of the case, but we cannot help observing that the trial Court appears, on the whole to be right in coming to the conclusion that respondent No. 1 invented this requisition in order to gain time; otherwise it is not easy to understand how without satisfying himself that the prior mortgage had been discharged, he agreed to convey a good title to respondent No. 2 and how at the trial, both the respondents agreed to take a document from the appellant without adjudication about the said alleged claims of the prior mortgagee. Those general considerations in our opinion, lend strong support to the view taken by the trial Court that respondent No. 1 did not passes the necessary cash, and so, could not succeed in the present suit for specific performance. If respondent No. 2 had pleaded at the trial that he would have been able to raise the necessary amount, the appellant would have had an opportunity to meet that case; but since no such Plea was made at the trial, it was not open to him to raise this point for the first time in appeal. Therefore, we are satisfied that the High Court erred in entertaining this plea and allowing the respondents claim for specific performance on the ground that the said plea had been established.