THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Civil Revision Petition No. 1302 of 2010 Order:
This revision is directed against the order dated 10.02.2010 passed in I.A. No.30 of 2010 in O.S. No.12 of 2004 by the II Additional District Judge (FTC), Khammam, whereby and whereunder the application filed by the petitioner herein, under Order VII Rule 11 read with Section 151 CPC to reject the plaint, has been dismissed.
Sri Hari Sreedhar, learned counsel for the petitioner, referring to Section 16(c) of the Specific Relief Act, 1963 (for short ‘the Act’), submits that a reading of the plaint averments itself would go to show that the plaintiff never averred that she is ready and willing to perform the contract according to true construction of the agreement entered into between the parties dated 06.10.2003. His main submission is that as per the terms and conditions of the agreement of sale dated 06.10.2003 the first respondent herein i.e., the plaintiff in O.S. No.12 of 2004 has agreed to purchase the suit schedule property for a total consideration of Rs.25,00,000/- and that she paid advance of Rs.2,50,000/- by cash and Rs.1,50,000/- through cheque No.262361, dated 22.09.2003 drawn on State Bank of Hyderabad, total Rs.4,00,000/- and that out of the remaining amount of Rs.21,00,000/- she again paid Rs.4,00,000/- on 06.10.2003 totalling to Rs.8,00,000/-, and that she has agreed to pay the remaining amount of Rs.17,00,000/- at the time of registration. His main contention is that the contents of the agreement of sale would simply go to show that the earlier mortgage deed would be in force till the date of execution of the registered sale deed and a fair reading of the said agreement would go to show that the petitioner herein never agreed to adjust the mortgage amount of Rs.6,50,000/- towards the amount to be payable as consideration for executing the sale deed. It is also his submission that the second respondent herein, who is the father of the first respondent has filed a separate suit in O.S. No.36 of 2009 for sale of mortgaged property and that the second respondent together with the first respondent want to defeat the terms and conditions of the agreement dated 06.10.2003 by making an averment in the plaint that the petitioner herein agreed to adjust Rs.6,50,000/- out of the balance sale consideration amount payable by the first respondent herein. He has also relied on a judgment reported in Ouseph Varghese v. Joseph Aley and others[1], in support of his contention that it is incumbent on the plaintiff (first respondent herein) not only to set out the agreement on the basis of which she sues in all its details, but also plead that she has applied to the defendant specifically to perform the agreement pleaded by her but the defendant has not done so. It is also his submission that the plaintiff must further plead that she has been and is still ready and willing to specifically perform her part of the agreement, and in the absence of such averment in the plaint the suit is not maintainable. Thus, his main contention is that the suit averments are not in accordance with the true construction of the agreement of sale entered into between the parties and, therefore, the suit is not maintainable.
Sri M.V.S. Suresh Kumar, learned counsel for the first respondent, submitted that the petitioner herein though filed an application under Order VII Rule 11 CPC to reject the plaint, but he has not taken the plea, which he is pleading before this Court, in the lower Court. The petitioner never pleaded in the lower Court that the first respondent herein made any averment contrary to the terms and conditions of the agreement and in the absence of any specific plea taken by the petitioner herein in the lower Court the petitioner should not take such plea before this Court. He has also relied on a decision reported in Faquir Chand v. Sudesh Kumari[2], wherein the apex Court while dealing with Section 16(c) of the Act observed that the compliance of readiness and willingness has to be in its spirit and substance and not in letter and form and so to insist for a mechanical production of the exact words of a statute is to insist for the form rather than the essence. It is also the submission of the learned counsel for the first respondent that the first respondent specifically pleaded that she has been always ready and willing to perform her part of agreement and that the petitioner has not taken any plea as required under Rule 11 of Order VII CPC on the basis of which the plaint can be rejected. He has also referred to Rule 11 of Order VII CPC i.e., the grounds on which plaint can be rejected.
The only point that arises for consideration is whether the impugned order is in accordance with law and the same is liable to be set aside.
Order VII Rule 11 CPC is as follows.
“11. Rejection of plaint.- The plaint shall be rejected in the following cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of rule 9.
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.”
A reading of the petition filed by the petitioner herein in the lower Court would go to show that he simply alleged that the first respondent herein though relied on the agreement of sale dated 06.10.2003 but did not specifically aver that she is ready and willing to perform her part of contract under the agreement sought to be enforced. Admittedly, the petitioner has not taken any of the grounds as mentioned in clauses (a) to (f) of Order VII rule 11 CPC. Therefore, the petition filed by the petitioner cannot be considered and the plaint cannot be rejected in terms of Order VII Rule 11 CPC.
Now it has to be seen whether Section 16(c) of the Specific Relief Act applies to the facts of this case. Section 16(c) of the Act is as follows.
(c) 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 of the performance of which has been prevented or waived by the defendant.
Explanation for the purpose of Clause (c) is as follows.
(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;
(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.
Since the applicability of Section 16(c) of the Specific Relief Act was not an issue before the lower Court, the petitioner may file an application before the lower Court to decide whether the plaint averments are in accordance with Section 16(c) and explanation (ii) of the Act and whether the plaintiff can seek specific performance of the contract in terms of the said Section, and on filing of such application, the lower Court may frame a specific issue and in its discretion may either decide it as a preliminary issue or one of the issues of the suit.
Subject to the observations made supra, the revision petition is dismissed.
B. CHANDRA KUMAR, J.
Date: 29.06.2010 Nsr
[1] 1969 (2) Supreme Court Cases 539
[2] 2006 SAR (Civil) 872