DAGADU BAPU SHINDE Vs. VASANT SHANKAR NIMBALKAR

JUDGEMENT

(1.) This second Appeal has got to be allowed on the two narrow grounds that---

(2.) The facts are very simple. The suit land admittedly belonged to the plaintiff, who entered into an Agreement for Sale of same to the defendant on 29-11-1980. According to him, he was in need of a sum of Rs. 800/-. Hence, he executed a deed of sale of the suit land (Gate No. 815 old Survey No. 308) at village Tathavade, Taluka Phaltan, admeasuring 6 acres 18 Gunthas for the said sum of Rs. 800/- in favour of the defendant. On the same date, an Agreement of re-conveyance executed by the defendant in favour of the plaintiff agreeing to re-convey the said land to the plaintiff upon the plaintiff repaying the said amount of Rs. 800/- within a period of 5 years. According to the plaintiff, within the said period of 5 years, he called upon the defendant to take back his amount of Rs. 800/- and to execute a reconveyance in his favour. The defendant was not in a mood to oblige, with the result that the plaintiff was required to issue to him a notice dated 1-11-1975, calling him to execute the Sale Deed. The grievance of the plaintiff is that the notice was not accepted by him. Hence, the instant suit was filed by the plaintiff for specific performance of the said Agreement of reconveyance on 14-12-1976. It is further common ground that on 15-12-1976, he even deposited the sum of Rs. 800/- in the Court for payment to the defendant. However, it appears that quite inadvertently the mantra of the ritual which is expected to be stated by the plaintiff in the plaintiff itself, viz. that he is ready and willing to perform his part of the agreement, was not stated by him in the plaint or, rather he did not get the information from his Advocate that he had to make such an averment probably, because the learned Advocate was himself blissfully unaware of such technical requirement. Whatever that may be, the fact remains that averment was not made in the plaint. As will be presently pointed out, at least in the instant case, the averment was of entirely of formal and academic character, because all that he was to perform was the payment of Rs. 800/- and that he had deposited in the Court on the same date when the suit was registered. Nothing therefore remained on his part to perform as his part of the contract. It is unnecessary to refer to the defence in the written statement, except that there was no substance in the defence whatsoever. Even the lower Court, which has held in favour of the defendant and has dismissed the plaintiffs suit, has not found it possible to find anything in the defence of the defendant on merits as such. In substance, it was contended by the defendant that the plaintiff was not entitled to have the property reconveyed.

(3.) On these pleadings, Issues were framed. It is noteworthy that there was no issue on the question as to whether the suit was not maintainable on the ground that this most formal averment in the plaint, viz. that the plaintiff was ready and willing to perform his part of the Agreement was not incorporated in the plaint. It appears that the parties led evidence and at a later stage this particular defect was noticed by the Court as well as by the defendants Advocate. Hence, the plaintiff made an application, Exh. 43, for amendment of the plaint with a view to incorporate the said averment of his readiness and willingness to perform his part of the contract in the plaint. On that application, say of the defendant was asked for and the defendants Advocate stated that the amendment was being asked for at a late stage. But he stated that it should be allowed after subjecting the plaintiff to heavy costs. Upon this, the learned Judge passed an order as follows :---