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PETITIONER:

MOTILAL JAIN

Vs.

RESPONDENT:

SMT.RAMDASI DEVI & ORS.

DATE OF JUDGMENT: 20/07/2000

BENCH:

Shivaraj V. Patil, S.S.M.Quadri

JUDGMENT:

J U D G M E N T SYED SHAH MOHAMMED QUADRI, J. Thisappeal, by special leave, is di

rected against the judgment

of the Gauhati High Court (Assam) in First Appeal No.43 of

1981 passed on October 22, 1990. The plaintiff in the suit,

out of which this appeal arises, is the appellant and the

respondents are legal representatives of the defendant -

Ambika Prasad Ram. Hereinafter the parties will be referred

to as the plaintiff and the defendant. The plaintiff

entered into a contract with the defendant to purchase the

suit property for a consideration of Rs.25,000/- out of

which a sum of Rs.17,000/- was paid at the time of the

execution of the contract on February 20, 1977 (Ext.2); the

balance of the consideration, Rs.8000/-, was stipulated to

be paid within five months from the date of Ext.2, at the

time of execution of registered sale deed in favour of the

plaintiff. Alleging that the defendant was evading to

receive the balance amount of Rs.8000/- and execute the sale

deed, the plaintiff sent notices through his advocate on

March 15, 1978 (Ext.5), and again on April 4, 1978 (Ext.3)

and finally on November 26, 1978 (Ext.4). The plaintiff

then filed the suit, T.S.No.36 of 1979, against the

defendant in the court of the Assistant District Judge of

Goalpara at Dhubri, praying for a decree of specific

performance of contract for sale of the suit property

(Ext.1) and claimed in the alternative damages in the sum of

Rs.38,000/- on August 10, 1979. The defendant denied the

execution of Ext.2, receipt of Rs.17,000/- as part

consideration thereunder, his signature on it and submitted

that, therefore, the question of avoiding to execute the

sale deed would not arise. He pleaded that the appellant

was entitled to neither the specific performance of contract

nor the damages, the alternative claim. On considering the

evidence produced by the parties, the trial court found that

the defendant executed Ext.2 and decreed the suit for

specific performance of Ext.2 on July 25, 1981. The

defendant filed First Appeal No.43 of 1981 against the

judgment of the trial court in the Gauhati High Court

(Assam). During the pendency of the appeal the said

defendant died and the respondents were brought on record as

his legal representatives. The High Court confirmed the

finding of the trial court that the defendant executed Ext.2

but noted: (i) that the suit was filed after two years of

the accrual of the cause of action on July 21, 1977 and

after about one year of last notice issued on November 26,

1978 (Ext.4); (ii) from the averment in the plaint the

readiness and willingness could not be inferred; and (iii)

even assuming that the averment made out the readiness and

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willingness, there was no evidence to prove the readiness

and willingness of the plaintiff. In that view of the

matter, by the impugned judgment, the High Court set aside

the judgment of the trial court with regard to relief of

specific performance of the contract (Ext.2) but granted a

decree for compensation in a sum of Rs.22,094/-(Rs.17,000/-

+ 1000/- + 4,094/-) with costs. Mr.Sanjay Parikh, learned

counsel for the appellant/plainfiff, challenged the said

findings of the High Court. He submitted that there was no

such delay as to deny the relief of specific performance of

Ext.2. He brought to our notice the averments in the plaint

to show readiness and willingness of the plaintiff to

perform his part of the contract and argued that to comply

with the requirements of Section 16(c) of the Specific

Relief Act, 1963, the plaint need not be in Forms 47 and 48

of Appendix A to Code of Civil Procedure and relied upon the

decision of this Court in Ramesh Chandra Chandiok & Anr.

Vs. Chuni Lal Sabharwal (dead) by his Lrs. & Ors. [AIR

1971 SC 1238] and a recent judgment of this Court of three

Judges Bench in Syed Dastagir Vs. T.R. Gopalakrishna Setty

[1999 (6) SCC 337]. He referred to that part of the

judgment of the trial court where the evidence of Motilal

Jain (PW 1) and Ahindra Nath Choudhury (PW 2) was discussed

in proof of the readiness and willingness of the appellant.

Mr.N.R. Choudhary, learned counsel for the respondent,

contended that paras 6 and 11 of the plaint do not conform

to Forms 47 and 48 of the First Schedule of the Code of

Civil Procedure and relied upon the decisions of this Court

in Ouseph Varghese Vs. Joseph Aley & Ors. [1969 (2) SCC

539] and Abdul Khader Rowther Vs. P.K.Sara Bai & Ors. (AIR

1990 SC 682). He argued that the trial court ought to have

framed an issue regarding readiness and willingness of the

appellant but it failed to do so, therefore, the decree of

the trial court was rightly set aside by the High Court. He

further contended that the conduct of the appellant whose

wife is the tenant in the suit property in bringing into

existence Ext.2 which was denied by the defendant, did not

justify granting of discretionary relief of specific

performance and the High Court had rightly denied the same.

Here, the short point is whether the impugned judgment of

the High Court is sustainable in law. The first ground

which the High Court took note of is the delay in filing the

suit. It may be apt to bear in mind the following aspects

of delay which are relevant in a case of specific

performance of contract for sale of immovable property: (i)

Delay running beyond the period prescribed under the

Limitation Act; (ii) Delay in cases where though the suit

is within the period of limitation, yet : (a) due to delay

the third parties have acquired rights in the subject-matter

of suit; (b) in the facts and circumstances of the case,

delay may give rise to plea of waiver or otherwise it will

be inequitable to grant a discretionary relief. Here none

of the above mentioned aspects applies. That apart

factually also, the High Court proceeded on an incorrect

assumption with regard to cause of action. Ext.2 was

executed on February 20, 1977 and under it the sale deed was

to be executed on or before July 19, 1977. The last notice

was issued on November 26, 1978 and from that date the suit

was filed only after nine months and not after more than a

year as noted by the High Court. Therefore on the facts of

this case the ground of delay cannot be invoked to deny

relief to the plaintiff. The other contention which found

favour from 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

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record to prove it. Mr.Choudhary developed that contention

placing reliance on the decision in Vargheses case (supra).

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 Khaders case (supra). However, a different note was

struck by this Court in Chandioks case (supra). In that

case A agreed to purchase from R a lease hold 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 lease hold 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 the R

was that A was not ready and willing to perform his part

of the contract. This Court observed that readiness and

willingness could not be treated as a strait- jacket 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 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.

That decision was relied upon by a three Judges Bench of

this Court in Syed Dastagirs case (supra), 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 ones 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 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, 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) 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 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 of specific

performance of contract for sale. In the instant case a

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perusal of paras 6 to 11 of the plaint do clearly indicate

the readiness and willingness of the plaintiff. The only

obligation which he had to comply with was payment of

balance of consideration. It was stated that he demanded

the defendant to receive the balance of consideration of

Rs.8000/- and execute the sale deed. The defendant was in

Patna (Bihar) at the time of notices and when he came back

to his place the plaintiff filed the suit against him. In

support of his case, he adduced the evidence of PW 1 and PW

2. The plaintiff had parted with two-third of the

consideration at the time of execution of Ext.2. There is

no reason why he would not pay the balance of one-third

consideration of Rs.8,000/- to have the property conveyed in

his favour. We are not persuaded to accept the contention

that the conduct of the plaintiff disentitles him to the

relief of specific performance. The last contention of

Mr.Choudhary that because the plaintiff has claimed

compensation in lieu of specific performance so he is

disentitled to claim the specific performance of the

contract, is to be noted to be rejected. The plaintiffs

claim was in accord with the provisions of Section 21 of the

Specific Relief Act, 1963. Merely because the plaintiff

claims damages in a suit for specific performance of

contract as alternative relief, it cannot be said that he is

not entitled to the main relief of specific performance of

contract itself. None of the reasons given by the High

Court is sustainable in law to justify setting aside the

judgment and decree of the trial court. Consequently, the

judgment of the High Court is liable to be set aside and

accordingly we do so and restore the judgment and decree of

the trial court. Inasmuch as the plaintiff had already

deposited the balance of consideration pursuant to the

judgment and decree of the trial court, the legal

representatives of the defendant (respondents herein) are

ordered to execute the sale deed in favour of the plaintiff

within three months from today. The appeal is allowed. The

plaintiff is entitled to receive his cost from the

defendant/respondents.