JUDGMENT
1. This is a second appeal arising out of a suit, being suit No. 1478 of 1991 (Smt. Ram Rekha v. Ram Das) for specific performance of contract. The facts of the case are that appellant Ram Das agreed to transfer the suit land by sale in favour of plaintiff-respondent Smt. Ram Rekha for the consideration of Rs. 12000 -. An agreement of sale was executed and presented for registration before the concerned Sub-Registrar on 25-2-1982 and it was registered on 23-4-1982, the defendant-appellant bad received a sum of Rs. 500/- from the plaintiff-respondent towards sale consideration prior to execution of the sale-agreement and a further sum of Rs. 5,500/- was actually paid to him before the Sub-Registrar op the date on which the agreement was executed and presented for registration. The suit land being admittedly situate in the Urban Agglomeration of Gorakhpur, it was provided in the agreement that if the Vendor failed to execute the sale deed within a period of three months of the grant of permisison for sale by the Competent Authority (Urban Land Ceiling), the Vendee would be at liberty to file a suit for specific performance of the contract.
2. The Vendee Smt. Ram Rekha Devi filed the suit giving rise to this appeal with the allegation that a total sum of Rs. 5910/- was further paid to the Vendor on different dates between 24-4-1983 and 31-12-1989 (both dates inclusive) and that only a sum of Rs. 90/- was left to be paid to the Vendor, but he failed to even move application before the Competent Authority (Urban Land Ceiling) for permission to sell the iand in suit as per agreement. It was also alleged that the plaintiff was ready and willing to purchase the land from the defendant on payment of the remaining sale consideration and to perform her part of contract, but the defendant was loathe to execute the sale deed. The defendant-appellant admitted the receipt of Rs. 6000/- as earnest money from the plaintiff, but denied having received a further sum of Rs. 5,910/- towards the sale consideration alleged to have been paid to him by the plaintiff in different sums on different dates. He contested the suit inter alia on the ground that permission for sale applied for, was not given by the Competent Authority, (Urban Land Ceiling) and consequently, the contract stood frustrated and became unenforceable in law. Bar of Sections 16 and 20 of Specific Relief Act was also pleaded by the defendant-appellant.
3. It may be observed that a suit, being suit No. 942 of 1991 (Ram Das v. Smt. Ram Rekha) had already been filed by the defendant-appellant for declaration that the sale agreement had become unenforceable in law in absence of the permission by the Competent Authority (Urban Land Ceiling). Both the suits were lumped together and decided by a common judgment dated 13-4-1992. The learned Munisif decreed the suit giving rise to this appeal and dismissed the one filed by the appellant for declaration that the sale agreement had become ineffective and unenforceable in law owing to refusal by the Competent Authority (Urban Land Ceiling) to grant permission for sale.
4. The appellant preferred to civil appeals one against the dismissal of his suit and the other against the decree passed in favour of Smt. Ram Rekha thereby decreeing her suit for specific performance. Both the appeals were dismissed by learned 7th Addl. District Judge, Gorakhpur vide his judgment and decree dated 22-2-1993. The instant second appeal is directed against the decree in so far as it has been passed in suit No. 1478 of 1991 (Smt. Ram Rekha v. Ram Das).
5. The learned counsel for the appellant urged that the suit was barred by Section 16(c) of the Specific Relief Act, 1963, in that, urged the learned Counsel, the plaintiff failed to make specific allegations in her plaint that she had always been ready and willing to perform her part of contract and also that she failed to prove hef readiness arid willingness to perform her part of contract by adducing cogent evidence. The view, proceeded the argument, to the contrary taken by the learned lower courts was vitiated by error of law.
6. As held by the Supreme Court in Prakash Chandra v. Angadlal, AIR 1979 SC 1141, the ordinary rule is that on proof of a valid contract, specific performance should be granted and it. ought to be denied only when equitable considerations show that dama'ges would constitute an adequate relief. In Surya Narain Upadhyaya v. Ram Roop Pandey, AIR 1994 SC 105, it has been expounded "Though the decree for specific performance is a discretionary power, yet the Court is not bound to grant such a relief merely because it is lawful to do so; but discretion of the Court is not arbitrary, but sound and reasonable, guided by judicial principle of law and capable of correction by Court of appeal. Therefore, the discretion should be properly exercised keeping in view the settled principles of law as envisaged in Section 20 of the Act."
7. The Ouseph Varghese v. Joseph Aley (1969) 2 SCC 539, the Supreme Court stated the law on the point as under:
"..... In a suit for specific performance, it is incumbent on the plaintiff not only to set out agreement on the basis of which he sues in all its details, he must go further and plead that he has applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so. He must further plead that he has been and is still ready and willing to specifically perform his part of the agreement. As observed by this Hon'ble Court in Pt. Prem Rai v. D.L. Housing and Construction (Pvt.) (Ltd.), Civil Appeal No. 37/66 decided on 4-4-1968 (reported in AIR 1968 SC 1355), that it is well settled that in a suit for specific performance, the plaintiff should allege that he is ready and willing to perform his part of the contract and in the absence of such an allegation, the suit is not maintainable."
8. The above cited decision has been followed by the Supreme Court in Abdul Khader Rowtherv. R.K. Sara Bai, AIR 1990 SC 682 and the same view has been reiterated in Smt. Thakamma Mathew v. M. Azamat Ullah Khan, (1993 (1) JT SC 35 : (AIR 1993 SC 1120) in the following words (at page 1124 of AIR)-
" ..... In order that decree for specific performance for a contract may.be passed, it is necessary to consider whether said relief can be granted in view of Section 16 of the Specific Relief Act, 1963. In other words, the person seeking such a decree, has to satisfy that Section 16 of the Specific Relief Act does not bar grant of such a relief and the person against whom the decree is passed can show that the relief of specific performance cannot be granted in view of provisions of Section 16 of the Specific Relief Act. Clause (c) of Section 16 postulates that the person seeking specific performance of the contract must file a suit wherein he must 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."
The proposition aforestated cannot be doubted and, in fact, has been disputed by the learned Counsel appearing for the plaintiff-respondent. However, the courts below, in the present case, have concurrently held that the suit was not barred by Section 16(c) of the Specific Relief Act, 1963. The concurrent finding of fact is that the plaint did contain averments accordingly well with the requirements of Section 16(c) of the Specific Relief Act, 1963. A perusal of paragraphs 9 and 10 of the plaint leaves no manner of doubt that the requirements of Section 16(c) of the Specific Relief Act, 1963 are fully satisfied. The learned Munsif, on consideration of evidence on record, has recorded a categorical finding to the effect that the plaintiff was always ready to get the sale-deed executed in her favour on payment of remaining sale con sideration. In this connection, the learned Munsif has rightly referred to the plea taken by the appellant in his written statement that he too was always ready to execute the sale deed but could not do so for want of requisite permission by the Competent Authority (Urban Land Ceiling). In pragraph 15 of this written statement, the defend ant-appellant has set up the case that the plaintiff and defendant in their joint efforts moved an application for permission thrice before the Competent Authority. Although the Courts below have recorded a finding that the defendant-appellant moved no application for permission before the Competent Auth ority but the averments made in paragraph 15 of the written statement, lead to inference that the plaintiff had aiways been ready and willing to perform her part of contract. The findings arrived at by the learned Munsif on the question of readiness and willingness on the part of the plaintiff to perform her pan of contract, has been maintained by the lower appellate court and I do not find any ground for interference with the said finding in second appeal.
9. The learned counsel appearing for the appellant then urged that execution of sale-deed pursuant to the sale agreement was dependent upon the permission for sale being granted, and since the permission for sale, though applied for, was not given by the Competent Authority (Urban Land Ceiling), the contract for sale became impossible of performance arid stood frustrated and became unenforceable in law.
10. Having given my anxious considerations to the submissions made by the learned Counsel appearing for the appellant, I am of the view that the:correct legal position is that whereby the statute property is not transferable without the permission of the slatutory authority, an agreement to transfer the property must be deemed subject to implied condition that the transferor will obtain the sanction of the concerned authority. Nathu Lalv. Phool Chand, AIR 1970 SC 546 : (1970 All LJ 442) and Mrs. Chandani Vidya Wati v. Dr. C.L., Katiyal, AIR 1964 SC 978 may be referred to as the authorities on the point. Although, it was not expressly provided in the agreement that the Vendor would obtain permission but such a covenant, in my opinion, would be deemed to be implicit in the agreement for sale, if at all prior permission of the Competent Authority (Urban Land Ceiling) for sale of the land in suit is found to be necessary under the, provisions of Urban Land (Ceiling and Regulation) Act 1976. The decree under appeal too contains an implied direction to the Vendor to apply for permission under the Urban Land Ceiling Act, 1976. It would, of course, be for the appropriate authority to decide whether or not to grant necessary permission. In the event of the permission being lawfully refused by the competent Authority, the specific performance of contract would of course, stand frustrated and become uneforceable in law. As held by the Supreme Court in Hunger Ford Investment Trust Ltd. 'v. Hari Das Mundra, AIR 1972-SC 1826 and Raman Kutty Guptan v. Avara, 1994 (1) JT 342: AIR 1994 SC 1699) the court passing the decree, retains control over the decree and does hot cease to have jurisdiction even after the decree has been passed and as such, it can entertain an application for recession of the contract if it becomes impossible of performance in the event of the permission for sale being refused by the Competent Authority (Urban Land Ceiling). At the moment the finding of fact recorded by the Courts below is that the Vendor appellant did not even move any application before the Competent Authority for permission to sell the suit-land. Hence the question of the contract having become impossible of performance and unenforceable in law, does not arise at this stage. In absence of any documentary evidence, the courts below have rightly disbelieved the defendant's case that the permission for sale was refused to by the Competent Authority. The finding of fact recorded by the courts below on this score does not suffer from any illegality and warrants no interference in second appeal under Section 100, C.P.C. and I find no merits in this Second Appeal.
11. No other points have been pressed into service.
12. In the result, the second appeal fails and is dismissed under order 41, Rule 11, C.P.C. though after hearing the counsel for the respondent who had put in appearance by filing a caveat.
13. Parties to bear their respective costs.
14. Appeal dismissed.