Sugani Vs. Rameshwar Das & Anr  Insc 227 (25 April 2006)
Pasayat & Tarun Chatterjee Arijit Pasayat, J.
in this appeal is to the judgment rendered by a learned Single Judge of the
Allahabad High Court allowing a Second Appeal filed under Section 100 of the
Code of Civil Procedure, 1908 (in short the 'CPC'), by reversing the judgment
and decree passed by the trial court as affirmed by the Appellate Court.
factual background, as projected by the appellant in a nutshell is as follows:
agreement to sell was executed between the appellant, herein and Mahadeo
defendant No.1 in the suit (since deceased) in respect of the suit property for
a sum of Rs.7,000/- on 13.12.1975. Out of the said sum Rs.5,000/- was paid as
earnest money on the date of agreement and the balance was payable on the date
of the sale . Registration of the sale could not be done as admittedly there
was a prohibition on sale of urban property at the relevant point of time. The
agreement to sell was made on 13.12.1975.
No.1 Mahadeo executed a sale deed in favour of respondents 1 & 2 (defendant
Nos. 2&3 in the suit) for a sum of Rs.6,000/- allegedly on the basis of and
agreement to sell dated 13.12.1975. On 3.7.1978 a notice was sent by respondent
Nos. 1 & 2 demanding arrears of rent from the appellant. On 3.1.1979
appellant filed the suit for specific performance of the agreement dated
13.12.1975. It was inter alia indicated that the defendant No.1 put off the
registration of the sale deed on one pretext or other, on 3.7.1978 she came to
know that Mahadeo had executed a sale deed in favour of respondent nos. 1 &
2 and, therefore, suit was filed on 3.1.1979. Further the respondent nos. 1
& 2 had full knowledge of agreement to sale executed by Mahadeo in favour
of the appellant, and in spite of that respondent Nos. 1& 2 got the sale
deed executed. It was specifically stated in the plaint that she was throughout
ready and willing to get the sale deed executed. Written Statement of Mahadeo
and the respondents 1 & 2 i.e. defendants 2 & 3 was to the fact that
Mahadeo had not entered into any agreement to sell the suit property on
13.12.1975. On the other hand, Mahadeo had entered into an agreement to sell
the property dated 18.12.1973 with respondents 1 & 2 which culminated in
the sale deed dated 18.4.1977. Mahadeo further alleged that the agreement to
sell was a forged document and it did not bear either the signature or L.T.I.
of Mahadeo and the defendant Nos.2 & 3 i.e. respondents 1 & 2 herein,
had no knowledge of the agreement to sell purported to have been executed on
1 & 2 further took the stand that the sale deed dated 18.4.1977 was
executed by Mahadeo and with the full knowledge of the plaintiff appellant who
was the tenant. Mahadeo never signed in Hindi and used to sign in Mahajani.
issues were framed by the trial court:
defendant No.1 Mahadeo executed an agreement deed on 13.12.1975 for the sale of
the house detailed at the foot of the plaint for Rs.7,000/- in favour of the
defendant Mahadeo accepted Rs.5,000/- as earnest money on that date and
thereafter executed an agreement deed?
Whether the sale
deed dated 18.4.1977 regarding the disputed house executed by Mahadeo in favour
of Rameshwar Das and Jamuna Prasad is null and void?
defendants No. 2& 3 are bonafide purchase for value and without notice?
Whether the suit
is under valued?
fee paid is insufficient?
Whether the suit
is barred by the principle of mutality?
plaintiff is in possession of the disputed house as a tenant or in part
performance of the said agreement deed?
To what relief
if any is the plaintiff entitled? Both the trial court and the First appellant
court answered all the questions in favour of the plaintiff.
second appeal following questions were raised by the present respondents who
were the appellants before the High Court:
was no evidence to suggest that the thumb impressions on the agreement relied
upon by the plaintiff was that of Mahadeo?
Whether the suit
was barred by time?
appellants are the bonafide purchasers for value without notice?
Whether the sale
deed was validly executed by Mahadeo in favour of the appellant? The High Court
held that the pleadings in the plaint do not satisfy the requirement of Section
16 (c) of the Specific Relief Act, 1963 (in short the 'Act') read with Form
Nos. 47 & 48 of the Appendix A of the First Schedule of the CPC. It was
held that the defendants 2 & 3 were bonafide purchasers for value without
notice. The reasons given by the courts below to hold that the defendant Nos. 2
& 3 had knowledge of the plaintiff's agreement were imaginary reasons and
they were not acceptable. The plaintiff cannot get a decree for specific
performance of the contract as the legal heirs were not brought on record in
place of deceased defendant No.1. The trial court while dealing with issue No.7
as noted above recorded as follows:
issue Nos. 1 and 2 the plaintiff has corroborated her statement that she want
to get the sale deed executed in her favour by all the defendants. The
defendant No. 1 Mahadeo had died having no successor and on this basis no sale
deed can be executed by him. So far as the defendants No. 2 and 3 are concerned,
the sale deed executed by Mahadeo was found null of void. Hence they also can
not execute sale deed. In such circumstances after receiving remaining
Rs.2000/- only Court can order to execute the sale deed." The above
conclusions of the trial court as affirmed by the first appellate court have
not been considered by the High Court, and the appeal was accordingly allowed.
counsel for the appellant submitted that in the plaint specific averments were
made about the readiness and willingness. Answering issue No.6 the trial court
had noted that the execution of the alleged agreement dated 18.12.1973 was not
proved. The defendant no.1 had categorically admitted about the ban on
registration. In the written statement Mahadeo, defendant no. 1 also admitted
about the ban and had at paragraph 6 stated about the sale deed dated
19.7.1977. The first appellate court noted that there was no dispute that
during the concerned period there was prohibition on registration of sale deed.
As there was a prohibition on registration, the agreement to sale was executed.
The High Court came to hold that the suit was barred by time, in answering the
question No. 3 formulated by it. It is to be noticed that no such issue was
framed in the suit. In any event, bare perusal of Article 54 of the Limitation
Act, 1963 (in short 'the Limitation Act') shows that the suit was within time.
There was no issue framed regarding readiness and willingness in terms of
Section 16(c) of the Act.
event in the plaint categorical statements were made and evidence was also
specifically led in this regard. The High Court came to hold that the decree
was not executable even if granted as defendant No.1 had died and no legal
representative was brought on record. The findings of fact recorded by the
trial court as endorsed by the First appellate court the defendant Nos. 2 &
3 were not bonafide purchasers were set aside by the High Court in a Second
Appeal which is clearly impermissible. The trial court and first appellate
Court clearly recorded a finding about collusion which has been set aside
without any material.
reply it was stated by learned counsel for the respondents that the conclusions
of the trial court and the first appellate court were clearly erroneous and,
therefore, the High Court rightly interfered in the matter.
to be seen that the High Court had formulated questions for determination in
respect of issues which were not even decided by the trial court. No issue as
to whether the suit was barred by time was framed by the trial court. Even
otherwise in terms of Article 54 the starting point of limitation is three
years from the date when a date is fixed and in the instance case no date was
fixed and on the contrary the execution of the agreement was denied. The High
Court proceeded as if the period of limitation started from the alleged date of
agreement dated 3.12.1975. The notice about execution of Sale deed in favour of defendant Nos. 2 and 3 was
received in July, 1978 and the suit was filed on 3.1.1979.
54 reads as follows:
of suit Period of Limitation Time from which period begins to run For specific
performance of a contract Three years The date fixed for the performance, or,
if no such date is fixed, when the plaintiff has notice that performance is
the suit was clearly within time.
no issue was framed as regards the alleged non- fulfillment of the requirement
of Section 16 (c) of the Act. Strangely the High Court upset the factual
findings recorded by the trial court and the first appellate Court holding that
the requirements of Section 16(c) of the Act were not fulfilled.
16(c) needs to be quoted along with the Explanations. The same reads as
"Personal bars to relief:
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 purpose of clause (c)-
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;
the plaintiff must
aver performance of, or readiness and willingness to perform, the contract
accordingly to its true construction." In Ardeshir H. Mama v. Flora
Sassoon (AIR 1928 PC 208), the Privy Council observed that where the injured
party sued at law for a breach, going to the root of the contract, he thereby
elected to treat the contract as at an end himself and as discharged from the
obligations. No further performance by him was either contemplated or had to be
tendered. In a suit for specific performance on the other hand, he treated and
was required by the Court to treat the contract as still subsisting.
in that suit to allege, and if the fact was traversed, he was required to prove
a continuous readiness and willingness from the date of the contract to the
time of the hearing, to perform the contract on his part. Failure to make good
that averment brings with it and leads to the inevitable dismissal of the suit.
The observations were cited with approval in Prem Raj v. The D.L.F. Housing and
Construction (Private) Ltd. and Anr. (AIR 1968 SC 1355).
requirements to be fulfilled for bringing in compliance with Section 16(c) of
the Act have been delineated by this Court in several judgments. Before dealing
with the various judgments it is necessary to set out the factual position. The
agreement for sale was executed on 15.2.1978 and the period during which the
sale was to be completed was indicated to be six months. Undisputedly,
immediately after the expiry of the six months period lawyer's notice was given
calling upon the present appellant to execute the sale deed. It is also averred
in the plaint that the plaintiff met the defendant several times and requested
him to execute the sale deed. On finding inaction in his part, the suit was
filed in September, 1978. This factual position has been highlighted in the
plaint itself. Learned Single Judge after noticing the factual position as
reflected in the averments in the plaint came to hold that the plaint contains
essential facts which lead to inference to plaintiff's readiness and
willingness. Para 3 of the plaint indicates that the
plaintiff was always ready to get the sale deed prepared after paying necessary
consideration. In para 4 of the plaint reference has been made to the lawyer's
notice calling upon the defendant to execute the sale deed. In the said
paragraph it has also been described as to how after the lawyer's notice was
issued plaintiff met the defendant. In para 5 it is averred that defendant is
bound to execute the sale deed on receiving the balance amount and the
plaintiff was entitled to get the document executed by the defendant. It is
also not in dispute that the balance amount of the agreed consideration was
deposited in Court simultaneously to the filing of the suit. While examining the
requirement of Section 16(c) this Court in Syed Dastagir v. T.R. Gopalakrishna
Settty (1999 (6) SCC 337) noted as follows:
the whole gamut of the issue raised is, how to construe a plea specially with
reference to Section 16(c) and what are the obligations which the plaintiff has
to comply with in reference to his plea and whether the plea of the plaintiff
could not be construed to conform to the requirement of the aforesaid section,
or does this section require specific words to be pleaded that he has performed
or has always been ready and is willing to perform his part of the contract. In
construing a plea in any pleading, courts must keep in mind that a plea is not
an expression of art and science but an expression through words to place fact
and law of one's case for a relief. Such an expression may be pointed, precise,
sometimes vague but still it could be gathered what he wants to convey through
only by reading the whole pleading, depending on the person drafting a plea. In
India most of the pleas are drafted by
counsel hence the aforesaid difference of pleas which inevitably differ from
one to the other.
to gather true spirit behind a plea it should be read as a whole. This does not
distract one from performing his obligations as required under a statute. But
to test whether he has performed his obligations, one has to see the pith and
substance of a plea. Where a statute requires any fact to be pleaded then that
has to be pleaded may be in any form. The same plea may be stated by different persons
through different words; then how could it be constricted to be only in any
particular nomenclature or word. Unless a statute specifically requires a plea
to be in any particular form, it can be in any form. No specific phraseology or
language is required to take such a plea. The language in Section 16(c) does
not require any specific phraseology but only that the plaintiff must aver that
he has performed or has always been and is willing to perform his part of the
contract. So the compliance of "readiness and willingness" has to be
in spirit and substance and not in letter and form. So to insist for a
mechanical production of the exact words of a statute is to insist for the form
rather than the essence. So the absence of form cannot dissolve an essence if
already pleaded." Again in Motilal Jain v. Ramdasi Devi (Smt.) and Ors.
(2000 (6) SCC 420) it was noted as follows:
other contention which found favour with the High Court, is that plaint
averments do not show that the plaintiff was ready and willing to perform his
part of the contract and at any rate there is no evidence on record to prove
it. Mr. Choudhary developed that contention placing reliance on the decision in
Varghese case ((1969) 2 SCC 539). In that case, the plaintiff pleaded an oral
contract for sale of the suit property. The defendant denied the alleged oral
agreement and pleaded a different agreement in regard to which the plaintiff
neither amended his plaint nor filed subsequent pleading and it was in that
context that this Court pointed out that the pleading in specific performance
should conform to Forms 47 and 48 of the First Schedule of the Code of Civil
Procedure. That view was followed in Abdul Khader case ((1989) 4 SCC 313).
a different note was struck by this Court in Chandiok case ((1970) 3 SCC 140).
In that case 'A' agreed to purchase from 'R' a leasehold plot. 'R' was not
having lease of the land in his favour from the Government nor was he in
possession of the same. 'R', however, received earnest money pursuant to the
agreement for sale which provided that the balance of consideration would be
paid within a month at the time of the execution of the registered sale deed.
Under the agreement 'R' was under obligation to obtain permission and sanction
from the Government before the transfer of leasehold plot. 'R' did not take any
steps to apply for the sanction from the Government. 'A' filed the suit for
specific performance of the contract for sale. One of the contentions of 'R'
was that 'A' was not ready and willing to perform his part of the contract.
Court observed that readiness and willingness could not be treated as a
straitjacket formula and that had to be determined from the entirety of facts
and circumstances relevant to the intention and conduct of the party concerned.
It was held that in the absence of any material to show that 'A' at any stage
was not ready and willing to perform his part of the contract or that he did
not have the necessary funds for payment when the sale deed would be executed after
the sanction was obtained, 'A' was entitled to a decree for specific
performance of contract.
decision was relied upon by a three- Judge Bench of this Court in Syed Dastagir
case ((1999) 6 SCC 337) wherein it was held that in construing a plea in any
pleading, courts must keep in mind that a plea is not an expression of art and
science but an expression through words to place fact and law of one's case for
a relief. It is pointed out that in India most of the pleas are drafted by
counsel and hence they inevitably differ from one to the other; thus, to gather
the true spirit behind a plea it should be read as a whole and to test whether
the plaintiff has performed his obligations, one has to see the pith and
substance of the plea. It was observed:
a statute specifically requires a plea to be in any particular form, it can be
in any form. No specific phraseology or language is required to take such a
plea. The language in Section 16(c) of the Specific Relief Act, 1963 does not
require any specific phraseology but only that the plaintiff must aver that he
has performed or has always been and is willing to perform his part of the
contract. So the compliance of 'readiness and willingness' has to be in spirit
and substance and not in letter and form." It is thus clear that an
averment of readiness and willingness in the plaint is not a mathematical
formula which should only be in specific words. If the averments in the plaint
as a whole do clearly indicate the readiness and willingness of the plaintiff
to fulfil his part of the obligations under the contract which is the
subject-matter of the suit, the fact that they are differently worded will not
militate against the readiness and willingness of the plaintiff in a suit for
specific performance of contract for sale." Lord Campbell in Cork v. Ambergate etc. and Railway Co. (1851) 117 ER 1229
observed that in common sense the meaning of such an averment of readiness and
willingness must be that the non-completion of the contract was not the fault
of the plaintiffs, and that they were disposed and able to complete it had it
not been renounced by the defendant.
basic principle behind Section 16(c) read with Explanation (ii) is that any
person seeking benefit of the specific performance of contract must manifest
that his conduct has been blemishless throughout entitling him to the specific
relief. The provision imposes a personal bar. The Court is to grant relief on
the basis of the conduct of the person seeking relief. If the pleadings
manifest that the conduct of the plaintiff entitles him to get the relief on
perusal of the plaint he should not be denied the relief.
16(c) of the Act mandates the plaintiff to aver in the plaint and establish as
the fact by evidence aliunde that he has always been ready and willing to
perform his part of the contract. On considering almost identical fact
situation it was held by this Court in Surya Narain Upadhyaya v. Ram Roop
Pandey and Ors. (AIR 1994 SC 105) that the plaintiff had substantiated his
aspects were highlighted in Aniglase Yohannan v. Ramlatha and others (2005 (7)
trial court and the first appellate court recorded categorical findings that
there was prohibition on the registration of the sale deed at the relevant
point of time and, therefore, only agreement of sale was executed.
Interestingly the High Court found that the decree passed was not executable as
the defendant No. 1 had died and the legal heirs were not brought on record.
There was no issue framed in that regard and even no question of law was
formulated in the second appeal. The trial court and the first appellate court
recorded findings of fact that there was collusion between defendant No.1 and
defendant Nos. 2 & 3. That being so factual findings were recorded that the
defendant Nos. 2 & 3 had knowledge about the agreement with the plaintiff.
first appellate court in great detail examined the question as to whether the
defendants 2 & 3 had knowledge.
noted that a plea that there was part payment by defendants 2 & 3 were
clearly contrary to the evidence of defendant No.1. Scope of interference with
factual findings is rather limited. Unless the factual finding is perverse,
contrary to material on record, there is practically no scope for interference.
amendment by the amending Act 104 of 1976, Section 100 CPC appears to have been
liberally construed and generously applied by some Judges of various High
Courts with the result that the drastic changes made in the law and the object
behind that appears to have been frustrated. The amending Act was introduced on
the basis of various Law Commission Reports recommending for making appropriate
provisions in the CPC which were intended to minimise the litigation, to give
the litigant fair trial in accordance with the accepted principles of natural
justice, to expedite the disposal of civil suits and proceedings so that
justice is not delayed, to avoid complicated procedure, to ensure fair deal to
the poor sections of the community and restrict the second appeals only on such
questions which are certified by the courts to be substantial questions of law.
the amendment a second appeal can be filed only if a substantial question of
law is involved in the case. The memorandum of appeal must precisely state the
substantial question of law involved and the High Court is obliged to satisfy
itself regarding the existence of such a question. If satisfied, the High Court
has to formulate the substantial question of law involved in the case. The
appeal is required to be heard on the question so formulated. However, the
respondent at the time of the hearing of the appeal has a right to argue that
the case in the court did not involve any substantial question of law. The
proviso to the section acknowledges the powers of the High Court to hear the
appeal on a substantial point of law, though not formulated by it with the
object of ensuring that no injustice in done to the litigant where such a
question was not formulated at the time of admission either by mistake or by
been noticed time and again that without insisting for the statement of such a
substantial question of law in the memorandum of appeal and formulating the
same at the time of admission, the High Courts have been issuing notices and
generally deciding the second appeals without adhering to the procedure
prescribed under Section 100 CPC. It has further been found in a number of
cases that no efforts are made to distinguish between a question of law and a
substantial question of law. In exercise of the powers under this section the
findings of fact of the first appellate court are found to have been disturbed.
It has to be kept in mind that the right of appeal is neither a natural nor an
inherent right attached to the litigation. Being a substantive statutory right,
it has to be regulated in accordance with law in force at the relevant time.
conditions mentioned in the section must be strictly fulfilled before a second
appeal can be maintained and no court has the power to add to or enlarge those
grounds. The second appeal cannot be decided on merely equitable grounds.
concurrent findings of facts howsoever erroneous cannot be disturbed by the
High Court in exercise of the powers under this section. The substantial
question of law has to be distinguished from a substantial question of fact.
This Court in Sir Chunilal v. Mehta and Sons Ltd. v. Century Spg. & Mfg.
Co. Ltd. (1962 Supp (3) SCR 549) held that :
proper test for determining whether a question of law raised in the case in
substantial would, in our opinion, be whether it is of general public
importance or whether it directly and substantially affects the rights of the
parties and if so whether it is either an open question in the sense that it is
not finally settled by this Court or by the Privy Council or by the Federal
Court or is not free from difficulty or calls for discussion of alternative
views. If the question is settled by the highest court or the general
principles to be applied in determining the question are well settled and there
is a mere question of applying those principles or that the plea raised is
palpably absurd the question would not be a substantial question of law."
It is not within the domain of the High Court to investigate the grounds on which
the findings were arrived at, by the last court of fact. It is true that the
lower appellate court should not ordinarily reject witness accepted by the
trial court in respect of credibility but even where it has rejected the
witnesses accepted by the trial court, the same is no ground for interference
in second appeal, when it is found that the appellate court has given
satisfactory reasons for doing so.
case where from a given set of circumstances two inferences are possible. One
drawn by the lower appellate court is binding on the High Court in second
appeal. Adopting any other approach is not permissible. The High Court cannot
substitute its opinion for the opinion of the first appellate court unless it
is found that the conclusions drawn by the lower appellate court were erroneous
being contrary to the mandatory provisions of law applicable or its settled
position on the basis of pronouncements made by the Apex Court, or was based
upon inadmissible evidence or arrived at without evidence.
question of law termed as a substantial question stands already decided by a
larger Bench of the High Court concerned or by the Privy Council or by the
Federal Court or by the Supreme Court, its merely wrong application on the
facts of the case would not be termed to be a substantial question of law.
Where a point of law has not been pleaded or is found to be arising between the
parties in the absence of any factual format, a litigant should not be allowed
to raise that question as a substantial question of law in second appeal. The
mere appreciation of the facts, the documentary evidence or the meaning of
entries and the contents of the document cannot be held to be raising a
substantial question of law. But where it is found that the first appellate court
has assumed jurisdiction which did not vest in it, the same can be adjudicated
in the second appeal, treating it as a substantial question of law. Where the
first appellate court is shown to have exercised its discretion in a judicial
manner, it cannot be termed to be an error either of law or of procedure
requiring interference in second appeal. This Court in Reserve Bank of India v. Ramkrishna Govind Morey (1976 1
SCC 803) held that whether the trial court should not have exercised its
jurisdiction differently is not a question of law justifying interference.
above position was noted in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar
& Ors (1999 (3) SCC 722).
at from any angle the impugned order of the High Court is indefensible and is
set aside. The appeal is allowed.
judgment and the decree of the trial court as affirmed by the first appellate
court stand restored. No Costs.