Singh & Ors Vs. Brij Pal Singh & Ors  INSC 719 (10 May 1996)
O R D
E R This special leave petition arises from the order of the Allahabad High
Court dated April 1,
1996 passed in S.A.No.
680 of 1995.
first petitioner is a purchaser from the respondent of the land under
registered sale deed dated March 10, 1975
with a contemporaneous agreement of reconveyance to the respondent within a
period of two years from the said date.
first respondent laid suit for specific performance pleading that despite his
readiness and willingness the petitioner had avoided to sell back the property.
he pleaded that despite his making several requests to execute the sale deed on
receiving sale consideration, the petitioner went on assuring to do the same
but failed to execute the sale deed. Ultimately, when the petitioners had
agreed to have the sale deed executed and get it registered in the office of
the Sub-Registrar at Muzaffarnagar on March 9, 1997, the respondents kept waiting on
that date for the petitioners to come and execute the sale deed but the
petitioners did not turn up. On an application moved by the respondents of
their presence, the Sub-Registrar had entered their attendance in his office
register on March 9,
the respondents tried to reach out the petitioners on March 10, 1997 the petitioners intentionally
avoided to execute the sale deed in their favour. Consequently, their efforts
to have the property reconveyed failed. So, they laid the suit for specific
performance of the agreement.
petitioners pleaded that though they had executed agreement of reconveyance,
the same was cancelled by another agreement dated June 4, 1975, Ex. A-1. They also pleaded that they were always ready and
willing to perform their par of the agreement. The respondents did not have
sufficient means to pay the sale consideration of Rs. 47,6000/-. The
respondents filed the suit only to blackmail the petitioners. After framing
appropriate issues, adduction of evidence and on consideration thereof, the
trial Court dismissed the suit holding that the respondents had failed to prove
that they wee willing to perform their part of the contract nor have they
enough funds to repurchase the lands in dispute. But on appeal, the additional
District Judge in C.A.No.72/1992 allowed and decreed the suit on May 22, 1995 and decreed the suit and the second
appeal came to be dismissed by the High Court by the impugned order.
Swarup, learned counsel for the petitioner contended that the suit is not in
conformity with Forms 47 and 48 of Appendix AA of the Code of Civil Procedure
(Code) as amended by the High Court of Allahabad. The respondents have not
pleaded, as enjoined in Section 16 (1) (c) of the Specified Reliefs Act, 1963
(for short, the "Act) that the respondents had ready money for getting the
sale deed executed. The decrees of the appellate Court as well as of the High
Court are, therefore, bad in law. We find no force in the contentions.
paragraph 5,9 and 10 of the plaint the respondents have in substance pleaded
that they had been and were still willing to perform their part of the
agreement and the defendants did have notice in that behalf. It is seen that
averments made in the above paragraphs are in substance as per Forms 47 and 48
prescribed in Appendix AA of the Code as amended by the High Court. What
requires to be considered is whether the essential facts constituting the
ingredients in Section 16 (1) (c) of the Act were pleaded and that found mentioned
in the said Forms do in substance point to those facts. The procedure is the
hand-maid to the substantive rights of the parties. it would, therefore, be
clear from a perusal of the pleadings and the forms that the averments are
consistent with the Forms. When the respondents had pleaded and proved by the
by the Sub-Registrar's endorsement as per paper No.41/C that the respondents
were present in the office of the Sub-Registrar for having the sale deed
executed and registered by the petitioners, it would be explicit that the
respondents were ready and willing to perform their part of the agreement., The
facts that the petitioners did not attend the office would prove positively
that the petitioners had avoided execution of the sale deed.
not in doubt and it is not a condition that the respondents should have ready
cash with them. The fact they attended the Sub-Registrar's office to have the
sale deed executed and waited for the petitioners to attend the office of the
Sub-Registrar is a positive fact to prove that they had necessary funds to pass
on consideration and had with them the needed money with them for payment at
the time of registration. it is sufficient for the respondents to establish
that they had the capacity to pay the sale consideration. it is not necessary
to pay the sale consideration. It is not necessary that they should always
carry the money with them from the date of the suit till date of the decree. It
would, therefore, be clear that the courts below have appropriately exercised
their discretion for granting the relief of specific performance to the
respondents on sound principles of law.
special leave petition is accordingly dismissed.