[1] By this appeal, the appellants herein – original defendants have challenged the judgment dated 27.08.1998 passed by the learned 3rd Joint Civil Judge, (SD), Kutch at Bhuj in Special Civil Suit No.141 of 1994, by which the learned Judge has directed the original defendants to get the land measurement corrected in the revenue record and execute the sale deed of 8 acres and 16 Gunthas of survey no.10 of village Madhapra, Taluka – Bhuj, Kutch for equivalent consideration. Further the learned Judge restrained original defendants from transferring or selling the land. Hence, present appeal.
[2] Facts of the case are as under : [2.1] Respondent herein – original plaintiff (“the plaintiff” for short) filed Special Civil Suit No.141 of 1994 before the Court of learned Civil Judge, Kutch at Bhuj for specific performance of an agreement dated 08.09.1991 executed by the appellants herein – original defendants (“the defendants” for short). In the plaint, it is stated by the plaintiff that defendants had agreed to sell agricultural land admeasuring 9 acres 24 gunthas situated in the sim of village Madhapar bearing survey no.10 for total amount of Rs.13,50,000/. It is further case of the plaintiff that the plaintiff had paid Rs.1,90,000/ to the original defendant by way of earnest money. It is case of the plaintiff that it was agreed between the parties that within a period of four months from the date of execution of the agreement, the original defendant was required to execute sale deed in favour of the plaintiff and the plaintiff shall pay the rest of the amount of Rs.12 lacs to the original defendant. It is further case of the plaintiff that as there was dispute regarding measurement, measurement of land was carried out through DILR and as per report of DILR, actual land was found to be 8 acres and 16 gunthas. Therefore, the original plaintiff stated that he will pay the amount by deducting for short fall of the land. It is further case of the plaintiff that as per the case of the plaintiff, plaintiff repeatedly requested the defendants to execute sale deed as per agreement to sale. However, defendants did not take care and therefore, the original plaintiff filed the aforesaid suit praying for decree of specific performance of agreement.
[3] It is submitted by learned advocate for the appellants herein – original defendants that agreement in question has been executed and it is respondent herein – original plaintiff who has failed to perform part of the contract and he has further failed to execute sale deed within stipulated period of four months from the date of agreement. As the plaintiff is not having capacity to pay the remaining amount of Rs.12 lacs, false dispute was raised with regard to measurement of land. Therefore, appellants herein are not liable to perform the contract. It is further submitted that learned trial court has committed error in not appreciating that the suit is not maintainable. It is further submitted that trial court has erred in not considering that the time is essence of the contract and if within stipulated time, either party fails to perform his part of contract, the other party has not right in the eye of law to enforce the execution of the contract. The plaintiff has failed to pay the rest of the amount of consideration within four months, therefore, the earnest money had been forfeited by the original defendant and hence, the agreement does not exist. Therefore, it is requested to allow this appeal. Learned advocate for the appellants has relied upon following decision :
(a) Ashwinkumar Manilal Shah v/s. Chhotabhai Jethabhai Patel reported in AIR 2001 Gujarat 90.
[4] Learned advocate for the respondent herein has submitted that judgment passed by the learned Trial Court is legal and proper. It is also submitted that as respondent herein – original plaintiff was ready and willing to make payment to appellants herein as per measurement of land and report of DILR, Trial Court has rightly decreed the suit in favour of original plaintiff which is not required to be interfered with. It is also submitted that appellate court should not interfere with the findings of the Trial Court. Learned advocate for the respondent has relied on following decisions :
(a) Kalayanpur Lime Works Ltd. v/s. State of Bihar reported in AIR 1954 SC 165.
(b) A.L.Parthasarthi Mudaliar v/s. Venkata Kondia Chettiar reported in AIR 1965 Madras 188
[5] Heard learned advocates for the respective parties. This Court has gone through the oral as well as documentary evidence produced before the Trial Court. As per Exh. 58 agreement to sell, within four months, the plaintiff had to make payment of remaining amount of Rs.12 lacs to the defendants. Therefore, case is put forward by the plaintiff that as per terms and conditions of the agreement to sell, he requested defendants to carry out measurement of land through DILR and as defendants did not care, plaintiff carried out the said exercise. On minutely going through Exh.58 – agreement to sell, it is found that there was no condition with regard to measurement of land and that remaining amount was to be paid by the plaintiff to the defendants as per measurement. As per 7/12 abstract of the land i.e. Survey No.10 is concerned, it is mentioned in the said document that land is admeasuring 9 acres and 24 gunthas and as price of the land is not fixed as per sq.yard, acre or RA, total amount of Rs.13,50,000/ is fixed for entire land, therefore, question does not arise for measurement of land and the plaintiff has to make payment of Rs.12 lacs within four months from the date of agreement to sell. Exh.64 is the also important document dated 29.04.1992 which is reply of defendant in respect to notice issued by the plaintiff in which it is specifically stated that there was no condition in the agreement to sell Exh.58 for measurement of land and price is fixed for total land. As per this reply and notice issued by the defendants to the plaintiff, the plaintiff was not ready to make payment of remaining amount of Rs.12 lacs and so agreement to sell was cancelled by issuing letter dated 10.02.1992 and it was informed through RPAD post by the defendants to the plaintiff. It is to be noted that in the cross examination, the plaintiff has admitted that he has no doubt for the title of the land. He has also admitted that there was no mention that both the parties could get the land measured. He has also admitted that four months completed on 07.01.1992. HE has also admitted that till 07.01.1992 the defendant was not informed about the measurement but the same was done on 08.01.1992.
[6] In the case of Ashwinkumar Manilal Shah (supra), this Court in para 16 has observed as under :
“16 The first ground is noncompliance of essential conditions of Section 16(c) of the Specific Relief Act. It provides that specific performance of a contract cannot be enforced in favour of a person who 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 the performance of which has been prevented or waived by the defendant. From this provision it is clear that a person who fails to aver and prove that he has performed or has always been ready and willing and is still ready and willing to perform the essential terms of the contract is not entitled to a decree for specific performance of contract. It is essential that the plaintiff has to aver in the plaint that he has performed his part of the obligations under the contract or has always been ready and willing to perform his part of the contract. Readiness and willingness both have to be averred as well as proved by the plaintiff seeking a decree for specific performance. Even if there is averment about the plaintiffs' readiness to perform his part of the obligations under the contract but, there is omission or failure to allege in the plaint willingness of the plaintiff to perform his part of the obligation under the contract, the suit for specific performance is bound to be dismissed. The law requires that there should be allegation in the plaint regarding readiness and willingness of the plaintiff to perform his part of the obligation under the contract and this readiness and willingness should have always been shown by the plaintiff. In addition to such allegation there should be specific allegation and there should be specific proof by the plaintiff that he has been ready and willing to perform his part of the obligation under the contract. Again if in evidence mere readiness of the plaintiff is established but not willingness the suit for a specific performance is bound to fail. Similarly, if the willingness of the plaintiff to perform his part of the obligation is proved but not readiness, in that case, no decree for specific performance can be granted. In addition to this, explanation (ii) of Section 16 (c) of the Specific Relief Act provides that for the purposes of clause (c) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. In the light of these provisions, we have examined the allegations made in the plaint whose translated copy is in the compilation AnnexureI. The plaint contains only 7 paragraphs. We have carefully examined this plaint but we are at a loss to find that there is no allegation in the plaint that the plaintiffs have performed their part of the obligation under the contract or that they have always been ready and willing to perform their part of the contract. In the absence of such an averment in the plaint, the suit for a specific performance is liable to be dismissed. The only witness of the plaintiffs Manilal Shah in his deposition cannot cure this fatal defect. It is settled law that in the absence of pleadings on a point no evidence can be permitted to be adduced by a party on a fact which is not pleaded in the plaint. Since the plaintiff's readiness and willingness to perform their part of the obligation under the contract is not alleged in the plaint, no evidence on the point could be accepted by the Court below. Mere casual statement of PW No.1 Manilal is not strict compliance of the provisions of Section 16(c) of the Specific Relief Act.”
[7] Considering above decision, prima facie this Court is of the opinion that without considering the Exh.58 agreement to sell as well oral evidence of the plaintiff and as there is no condition of measurement of land mentioned in the agreement to sell and title is not doubted by the plaintiff, then, as per terms of the agreement to sell, the plaintiff has to make payment within four months from the date of executing agreement to sell and that plaintiff has failed to do so. The plaintiff is ready and willing to make payment of 8 lacs only and not 12 lacs as per agreement to sell. It is to be noted that as 7/12 abstract measurement of land was done and thereafter agreement to sell took place and so plaintiff has to comply with the conditions of agreement to sell and he has to make payment of Rs.12 lacs to the defendants within four months. Trial Court has not appreciated the evidence in true perspective and came to the conclusion that by forfeiting the agreement to sell by reply is not sufficient to deny agreement to sell.
[8] So far as judgments relied on by the learned advocate for the respondent is concerned, on considering the facts, the said judgments are not helpful to the respondents.
[9] This Court is of the opinion that plaintiff has failed to prove that he is ready and willing to pay Rs.12 lacs as per terms and conditions of agreement to sell Exh.58 and so he is not entitled to get relief as prayed for in the suit.
[10] In view of above, the appeal is accordingly allowed.
Judgment dated 27.08.1998 passed by the learned 3rd Joint Civil Judge, (SD), Kutch at Bhuj in Special Civil Suit No.141 of 1994 is FA/6641/1998 10/10 JUDGMENT hereby quashed and set aside and consequently, the suit filed by the plaintiff for specific performance and permanent injunction is dismissed.
satish [M.D.Shah, J.]