M.R.SHAH,J. - (1.) Feeling aggrieved and dissatisfied with the impugned judgment and order dated 09.09.2010 passed by the High Court of Judicature at Allahabad in Second Appeal No.836 of 2010 by which the High Court has allowed the said Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short "CPC") and has quashed and set aside the judgment and decree for specific performance of the Agreement confirmed by the First Appellate Court, the original plaintiff has preferred the present Appeal.
(2.) The facts leading to the present appeal in nut-shell are as under: 2.1 That, one Ram Singh executed the agreement to sell in favour of original plaintiff - Sughar Singh to sell the suit land for a total sale consideration of Rs.56,000/-. Rs.25,000/- was received by the executant as a part sale consideration at the time of the agreement. The said agreement to sell was executed on 10.10.1976. At this stage it is required to be noted that at the relevant point of time agreement to sell was not required to be registered. As per the sale agreement the sale deed was to be executed within a period of 2 years. The time period of 2 years was extended at the instance of the vendor by the documents dated 30.09.1978 and 29.09.1981. That, thereafter a further sum of Rs.15,000/- was paid. The vendor agreed to receive the balance of Rs.16,000/- at the time of execution of the sale deed vide Annexure P3. Despite receiving Rs.40,000/- towards part sale consideration and despite execution of the agreement to sell, the original vendor executed the sale deed of the suit land on 23.06.1984 in favour of defendant Nos.2 to 5. That, thereafter, Sughar Singh - vendee filed the Civil Suit No.254 of 1984 in the Court of learned Civil Judge, Mathura City, Mathura (for short "learned Trial Court") against the vendor Ram Singh and Others. The persons in whose favour subsequently the sale deed was executed on 23.06.1984 were impleaded as defendant Nos.2 to 5 also. In the plaint it was also the specific case on behalf of the plaintiff that the defendant Nos.2 to 5 are the real nephews of defendant No.1 and defendant Nos.2 to 5 and their father had managed to get defendant No.1 in their control and that defendant Nos.2 to 5 and their father have got one farzi document in the shape of sale deed without consideration executed by defendant No.1 on 23.06.1984 and in their favour though they had full knowledge about the agreement to sell executed in favour of the plaintiff. 2.2 That, the suit was contested by the defendant No.1 by filing a written statement denying the very execution of the agreement to sell dated 10.10.1976 as well as two documents of alleged extension of time dated 30.09.1978 and 29.09.1981. He also denied having received a sum of Rs.25,000/- at the time of agreement and thereafter Rs.8000/- and Rs.7000/- respectively at the time of alleged two extensions as part of the sale consideration. 2.3 That, defendant Nos.2 to 5 by a separate written statement contended that they are the bonafide purchasers in good faith of the aforesaid land for a value vide registered sale deed dated 23.06.1984 and that they had no knowledge about the Agreement dated 10.10.1976. 2.4 The learned Trial Court framed the following issues. "(1) Whether the defendant No.1 had executed the agreement to sell (paper No.7-a) dated 10.10.1976 of the land in dispute for a sum of Rs.56,000/- after receiving advance of Rs.25,000/- ? - Whether under the aforesaid agreement to sell the defendant No.1 has been paid a further amount of Rs.8000/- on 30.09.1978 (Paper No.8-a/1) and Rs.7000/- on 29.09.1981 (Paper No.8-a/2)? (2) Whether under the aforesaid agreement to sell the defendant No.1 has been paid a further amount of Rs.8000/- on 30.09.1978 (Paper No.8-a/1) and Rs.7000/- on 29.09.1981 (Paper No.8-a/2)? (3) Whether the plaintiff has always been ready and willing and is still ready and willing to get the sale deed executed in accordance with the terms of the agreement of the sale. If yes, its effect? (4) Whether the defendant Nos.2 to 5 are the bona fide purchasers in good faith of the land in dispute for a valuable consideration without notice of the aforesaid agreement? (5) What relief the plaintiff is entitled to?" 2.5 On the side of the plaintiff, 6 witnesses came to be examined. Plaintiff also led the documentary evidences. On the side of the defendants, 3 witnesses came to be examined and the documentary evidences were also brought on record. 2.6 On appreciation of evidence, the learned Trial Court held the issue Nos.1 and 2 in favour of the plaintiff and against the defendants. The learned Trial Court concluded that the defendant No.1 had executed an agreement to sell dated 10.10.1976 in favour of the plaintiff for the sale of his property at Rs.56,000/- and Rs.25,000/- as advance payment whose validity was extended as per the documents dated 30.09.1978 after receiving Rs.8000/- and on 29.09.1981 after receiving Rs.7000/-. 2.7 On appreciation of evidence, the learned Trial Court also held the issue No.4 in favour of the plaintiff and against the defendants. On appreciation of evidence the learned Trial Court specifically held that the defendant Nos.2 to 5 were aware of the execution of agreement to sell in favour of the plaintiff at the time of execution of sale deed in their favour. The learned Trial Court also doubted the payment of sale consideration paid to the defendant No.1. 2.8 On appreciation of evidence the learned Trial Court held issue No.3 in favour of the plaintiff and against the defendants by observing that the plaintiff was always ready and willing to get the sale deed executed as per the terms and conditions of the agreement and that the plaintiff also proved that the plaintiff has acted as per the conditions of the agreement. Consequently and after holding all the issues in favour of the plaintiff and against the defendants, the learned Trial Court decreed the suit vide judgment and decree dated 07.02.1987 and directed the defendant No.1 to execute the sale deed after obtaining income tax certificate from the Income Tax Department within two months and on receipt of Rs.16,000/- (balance sale consideration). The learned Trial Court also passed an order directing the defendant Nos.2 to 5 also to be a party to the sale deed along with defendant No.1. 2.9 That, as the defendants neither preferred appeal nor acted as per the judgment and decree passed by the learned Trial Court, the plaintiff filed Execution Case No.11 of 1987 to execute the judgment and decree dated 07.02.1987, on 29.08.1987. As directed by the learned Executing Court, the plaintiff deposited the balance amount of Rs.16,000/- on 20.09.1987. The original defendant No.1 - Ram Singh died intestate on 20.09.1989. That, after a period of almost 9 years from the date of passing of the judgment and decree by the learned Trial Court, the original defendant Nos.2 to 5 preferred appeal before the learned First Appellate Court. By judgment and order dated 24.08.1998, the learned First Appellate Court dismissed the said appeal and confirmed the judgment and decree passed by the learned Trial Court. 2.10 Feeling aggrieved and dissatisfied with the judgment and order passed by the learned First Appellate Court dismissing the appeal and confirming the judgment and decree passed by the learned Trial Court, the original defendant Nos.2 to 5 preferred Second Appeal No.1388/1998 before the High Court. The High Court raised two points for determination viz. (1) non-compliance of the provisions of Section 16(c) of the Specific Relief Act, 1963 (for short "the Act") to the effect that the plaintiff has failed to aver and prove that he was always ready and willing to perform his part of the contract; and (2) with regard to the effect of non-registration of the two extensions of time for executing the sale deed pursuant to the unregistered agreement to sell dated 10.10.1976 in view of the U.P. Act No. 57 of 1976 and to decide the same in accordance with law. By judgment and order dated 26.10.2007, the High Court set aside the judgment and order passed by the First Appellate Court and remanded the matter to the First Appellate Court for decision afresh on issue no.3 with regard to readiness and willingness of the plaintiff to get the sale deed executed and for framing an additional issue with regard to the effect of non- registration of the two documents granting extension of time to execute the sale deed in view of the amendment made in Section 54 of the Transfer of Property Act vide U.P. Act No. 57 of 1976 and to decide the same in accordance with law. Vide clarificatory order dated 12.11.2008, the High Court specifically observed and clarified that the matter has been remanded to the First Appellate Court for decision afresh on issue No.3 and on the aforesaid additional issue only and without disturbing or setting aside any other findings of the First Appellate Court. 2.11 That, thereafter, on remand the learned First Appellate Court reconsidered issue No.3 as directed by the High Court and held in favour of the plaintiff and against the defendants and the First Appellate Court specifically observed and held that there were necessary averments in the plaint as required under Section 16(c) of the Act. On the additional issue learned First Appellate Court held that considering the relevant provisions the registration was not must. Consequently, the learned First Appellate Court held the issue Nos.3 and 6 in favour of the plaintiff and against the defendants and consequently dismissed the appeal and again confirmed the judgment and decree passed by the learned Trial Court. 2.12 Feeling aggrieved and dissatisfied with the judgment and order passed by the learned First Appellate Court and the judgment and decree for specific performance passed by the learned Trial Court confirmed by the learned First Appellate Court, the original defendant Nos.2 to 5 preferred Second Appeal before the High Court and by impugned judgment and order the High Court has allowed the said appeal and has quashed and set aside the concurrent findings recorded by both the Courts below and has reversed the judgment and decree of specific performance solely on the ground that there are no specific averments in the plaint as required under Section 16(c) of the Act and that there are no specific averments in the plaint both with regard to readiness and willingness. 2.13 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, the original plaintiff has preferred the present Appeal.
(3.) Shri Col. Balasubramaniam, learned Senior Advocate appearing on behalf of the appellant - original plaintiff has vehemently submitted that in the facts and circumstances of the case the High Court has committed grave error in allowing the Second Appeal under Section 100 of the CPC and has erred in setting aside the concurrent findings recorded by both the Courts below insofar as the issue with respect to the readiness and willingness and non-compliance of section 16(c) of the Act is concerned. 3.1 It is vehemently submitted by the learned Senior Advocate appearing on behalf of the original plaintiff that even the reasoning and conclusion recorded by the High Court that the suit has to fail for non-compliance of pleadings as per section 16(c) of the Act is contrary to the record and law laid down by this Court. It is submitted that as per the settled proposition of law laid down by this Court, for determining the readiness and willingness, the suit has to be read as a whole, the pith and substance being that 'readiness and willingness ' has to be in spirit and not in the letter and form. 3.2 It is further submitted that in the present case the plaintiff specifically pleaded in paragraphs 1 to 4 of the plaint and in paragraph 11 that he was always ready and willing to get the sale deed executed and registered and perform his part of agreement, but the defendant No.1 refused and hence, he had to file the suit. It is submitted that therefore finding recorded by the High Court is contrary to the record and hence, perverse. 3.3 It is further submitted by learned Senior Advocate appearing for the appellant that High Court has not properly appreciated the fact that in fact out of total sale consideration of Rs.56,000/-, Rs.40,000/- was already paid and only a balance of Rs.16,000/- was left to be paid, which as such was to be paid at the time of execution of the sale deed, even as admitted by the vendor in the document at Annexure P3. It is submitted that therefore it cannot be said that the plaintiff was not ready and willing to perform his part of the contract. 3.4 It is further submitted that even assuming for the sake of arguments that the pleadings are not as per prescribed form, the same does not render the suit not maintainable in view of the law laid down by this Court in the case of Syed Dastagir Vs. T.R. Gopalakrishna Setty reported in (1999) 6 SCC 337. 3.5 It is further submitted that as such the question of readiness was very much pleaded and demonstrated by the necessary averments in the plaint. It is submitted that the finding by the High Court that the plaintiff has only stated about his readiness and not expressed his willingness to perform his obligation is fatal and it overlooks the contents of document P3 wherein it was agreed by the vendor to receive balance of Rs.16,000/- at the time of executing sale deed and in the plaint itself there were specific averments that the plaintiff had gone to Sub- Registrar office and asked the vendor to execute the deed but he refused. 3.6 It is further submitted that the High Court has even erred in non-suiting the plaintiff on applicability of proviso to Section 20 of the Act. It is submitted that the High Court has erred in observing that it is not mandatory but discretionary to grant specific relief. It is submitted that the reasoning given by the High Court that even if the agreement to sell is proved and even if the part or major portion of the sale consideration is paid and even if the readiness and willingness is also proved, grant of decree for specific performance is discretionary is unsustainable. It is submitted that if such an interpretation is accepted, in that case, in no case, the decree for specific performance would be passed. It is submitted that even the discretion not to grant relief cannot be exercised dehors the conduct of the parties. It is submitted that every discretion has to be exercised soundly and reasonably. 3.7 It is further submitted that even otherwise looking to the conduct on the part of the defendants more particularly defendant Nos.2 to 5 to get the sale deed executed in their favour despite having knowledge of the agreement to sell executed by the defendant No.1 in favour of the plaintiff and even the payment of sale consideration by the defendant Nos.2 to 5 is doubtful and is not proved, section 20 of the Act shall not come in the way of the plaintiff in getting the relief of decree for specific performance. It is submitted that as such in the facts and circumstances of the case, section 20 of the Act shall not be applicable and/or attracted at all. 3.8 It is further submitted that as such there were concurrent findings of fact recorded by both the Courts below on readiness and willingness which were on appreciation of evidence. The High Court ought not to have set aside the concurrent findings, in exercise of powers under Section 100 of the CPC. 3.9 It is further submitted that even no issue was framed either by the learned Trial Court or by the First Appellate Court on applicability of Section 20 of the Act and the High Court has dealt with and considered the same for the first time in a Second Appeal under Section 100 of the CPC, which is wholly impermissible and which is beyond the scope and ambit of exercise of powers under Section 100 of the CPC. Making above submissions and relying upon the above decisions, it is prayed to allow the present appeal. ;