Heard Sri Mukhtar Alam, learned counsel for the appellants and Sri K.K. Arora, learned counsel for contesting respondents at the admission stage.
This is defendants' second appeal arising out O.S. No.242 of 1990 instituted by Satya Narain and Jitendra Kumar. Both the plaintiffs have died and are survived by respondents in this second appeal. The suit was filed for specific performance of a registered agreement for sale dated 08.04.1987 in respect of agricultural land comprised in Plot No.801, area 1 bigha 6 biswas 19 biswansis and Plot No.797, area 9 biswas 15 biswansis. The agreed sale consideration was Rs.220,200/- and Rs.10000/- were paid as earnest money. Rs.50,000/- were stated to have been paid subsequently against receipt on 09.06.1987. It was further pleaded that plaintiffs came to know that on the spot the area of the land was less, hence plaintiff sent registered notice on 04.08.1987 to the defendant for measurement and demarcation of the land. The sale deed was to be executed by 15.09.1987. Accordingly, on the said date plaintiffs remained present with balance sale consideration of Rs.1,60,200/-. Afterwards on 09.11.1989, defendant No.1 Rifaqat who had executed the agreement executed sale deed of the property in dispute in favour of defendant No.2, Ved Prakash for Rs.1,90,000/-. It was further pleaded through amendment in the plaint that in spite of temporary injunction granted in the suit defendants No.1 & 2 on 06.06.1991 through two sale deeds sold the property in dispute to defendants No.3 & 4. It was further pleaded that at the time of filing of the suit the valuation was Rs.25 lacs.
Additional Civil Judge, Senior Division, Court No.4, Ghaziabad through judgment and decree dated 24.11.2009 dismissed the suit. The trial court held that plaintiffs could not prove readiness and willingness to get the sale deed executed. Trial court further held that the notice which was sent for execution of the sale deed was not received by the defendants. Against the said judgment and decree passed by the trial court, plaintiffs field Civil Appeal No.1 of 2010. A.D.J. Court No.12, Ghaziabad allowed the appeal through judgment and decree dated 04.10.2011 set aside the decree passed by the trial court and decreed the suit for specific performance, hence this second appeal.
Additional amount of Rs.50,000/- was stated to have been paid on 09.06.1987. This assertion was denied by the defendant No.1, however execution of the agreement was admitted. Trial court had disbelieved the said statement of the plaintiffs, however lower appellate court believed the same. The lower appellate court after examining the entire evidence particularly the evidence of the experts held that the amount of Rs.50,000/- was in fact paid on 09.06.1987.
According to the report of the Commissioner total area of the land in dispute was about 4000 square yards while total area under the agreement in terms of square yard was 5250 square yards. Lower appellate court held that the defendant No.1 admitted that his address written on the notice dated 19.08.1987 was correct. Lower appellate court further held that there was no need for the plaintiffs to be present before Sub-Registrar on 04.09.1987, the date which was mentioned in his notice dated 19.08.1987 as defendants had not received the same. Plaintiffs remained present before the Sub-Registrar on 15.09.1987, the last date fixed in the agreement for execution of the sale deed. Defendant No.1 stated that plaintiffs were not having sufficient money for getting the sale deed executed. Ultimately the lower appellate court held that plaintiffs had proved their readiness and willingness.
In this appeal learned counsel for the appellants has mainly argued that there is no averment of readiness and willingness in the plaint as required by Section 16-C of Specific Relief Act, hence suit could not be decreed. In Para-23 of the written statement filed by defendant No.1, it was stated that the allegation of the plaintiffs that they had always been ready and willing to get the dale deed executed was not correct and they were not having sufficient money to get the sale deed executed. Defendants further stated that on 15.09.1987 they went to the office of Sub-Registrar and met the plaintiffs but plaintiffs said that they were not having sufficient money.
In the written statement, it was nowhere stated that there was no pleading of readiness and willingness in the plaint. The only thing which was stated was that the plaintiffs had not actually been ready and willing to get the sale deed executed.
Learned counsel for the appellants has mainly placed reliance upon an authority of this Court reported in Ram Singh Vs. Sughar Singh, 2011 (1) A.D.J. 470. In the said authority it has been held that if the only statement in the plaint is that plaintiffs have been ready to perform their part of the contract then this is defective pleading and unless the word ''willing' is also used, compliance of Section 16-C in respect of pleading cannot be said to have been made. In Para-6 of the plaint it has been stated that plaintiffs have always been ready (tayyar) to pay Rs.1,60,200/-, the balance sale consideration and are still ready. In Para-7 it is stated that plaintiffs have always been ready (tayyar) and are still ready to get the sale deed executed after paying the balance amount.
The Supreme Court in Syed Dustgir Vs. T.R. Gopal Krishna Shetty, AIR 1999 SC 3029 has held that pleading of readiness and willingness is not an expression of art and science and said plea may sometimes be vague but still it could be gathered that what plaintiffs wanted to convey through reading the whole plaint. Similarly in Moti Lal Jain Vs. Rambashi Devi, 2000 (6) SCC 420, it was held that averment of readiness and willingness is not a mathematical formula capable of being expressed in somewhat specific words. In Uma Bai and another Vs. N.D. Chauhan, 2005 (6) SCC 243 it was held that conduct of the parties must be looked into to ascertain the question of readiness and willingness.
The words ''readiness and willingness' are not magical words utterance of which may open the door of the treasure cave and non-utterance may trap the plaintiff.
Accordingly, in my opinion, there was sufficient averment of readiness and willingness of the plaintiffs in the plaint.
In this case on 22.11.2011 when order was reserved, following order was passed on the order sheet:
"Heard learned counsel for the� parties at the admission stage.
Order reserved.
On inquiry from Court and after consulting their clients learned counsel for the appellant states that today the market value of the land (treating it to be about 4000/- sq. yd.) must be around Rs.97, lakh. According to Sri K.K. Arora, learned counsel for the respondents it must be around Rs.80 lakh. Supplementary affidavit has been filed by learned counsel for the appellant which has been taken on record.
Until delivery of judgment execution proceedings shall remain stayed. "
In Jai Narain Parasrampuriya Vs. Pushpa Devi, 2006 (7) SCC 756, it has been held by the Supreme Court that if a long time has elapsed and prices have risen, equities may be adjusted in a suit for specific performance and either plaintiff may be required to pay additional amount or defendants may be directed to pay some compensation to the plaintiffs. In Pratap Lakshman Muchandi Vs. Shamlal Uddavadas Wadhwa AIR 2008 SC 1378 also it has been held that plaintiffs may be required to pay additional amount for specific performance if long time has passed since execution of agreement. In the authority of Jai Narain plaintiffs were directed to be paid Rs.50 lacs while dismissing the suit for specific performance as the valuation of the property had risen to crores of rupees.
Accordingly, appeal does not deserve admission as no substantial question of law is involved, however the decree of specific performance passed by the lower appellate court requires slight modification. Accordingly, it is directed that the sale deed of the property in dispute as existing on the spot, i.e. 4000 square yards shall be executed in favour of the plaintiffs on payment of Rs.25 lacs in addition to the balance sale consideration. The total amount shall be deposited within three months before the executing court failing which plaintiffs shall not be entitled to get the decree of specific performance of the agreement for sale executed. The deposited amount shall be paid to defendants No.3 & 4 proportionately.
Second appeal is disposed of accordingly.
Order Date :- 22.12.2011 NLY