Singh & Ors Vs. Brij Pal Singh & Ors  INSC 730 (10 May 1996)
K.Ramaswamy, K.G.B. Pattanaik (J)
JT 1996 (6) 389 1996 SCALE (5)342
O R D
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 103 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 petitioners 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, 1977, the respondents kept
waiting on that date for the petitioners to come and execute the sale deed but
the petitioners did not turn upon an application moved by the respondents of
their presence, the Sub-Registrar had entered their attendance in his office
register on March 9, 1977. Though the respondents tried to reach out the
petitioners on March
10, 1977 the
petitioners intentionally avoided to execute the sale deed in their favour.
Consequently their efforts to have the property reconveyed failed to, they laid
the suit for specific performance of the agreement. The 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 part of the agreement. The respondent did not have sufficient means to
pay the sale consideration of Rs. 47,600/-. 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 were 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  (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
paragraphs 5, 9 and 10 of the plaint the respondents have in substance pleaded
that they have 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  (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 that 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
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.