- (1.) POONAM Srivastava, J. Heard Sri B. K. Narayana, learned Counsel for the appellant and Sri T. P. Singh, Senior Advocate, assisted by Sri Anupam Kumar Advocate for the respondent.
(2.) THE instant second appeal is preferred against the judgment dated 5-10-1999 passed by IIIrd Additional District Judge, Allahabad dismissing the civil appeal No. 663 of 1985 confirming the judgment of 1st Additional Civil Judge, Allahabad dated 5-10- 1985 in Original Suit No. 172 of 1975. The plaintiff-appellant instituted original suit against the defendant-respondent for specific performance of agreement to sell executed on 19-7-1974 in favour of the plaintiff in respect of plot situated in village Sadiapur, Pargana Chail, District Allahabad. The sale consideration was agreed for an amount of Rs. 20,000/-, out of which Rs. 5,000/- was paid as earnest money and remaining amount was to be paid at the time of execution of the sale-deed. At the relevant time U. P. Ceiling Act was in force and there was a restriction in execution of the sale-deed without seeking permission from the Ceiling Authority and therefore, it was agreed between the parties that the permission will be obtained within six months from the date of execution of the agreement to sell and thereafter sale-deed shall be executed. The claim of plaintiff-appellant is that he was always ready and willing to perform his part of contract but the defendant- respondent somehow avoided on one or the other ground. Finally a notice dated 7-11-1975 was sent by registered post which failed to yield any result. Consequently the suit was instituted on 18- 1-1975. Initially the suit was filed in deficiency but subsequently deficiency was made good and summons were issued. The defendant-respondent filed his written statement and he asserted that the permission was obtained from the Ceiling Authorities on 8-3-1975 and permission certificate was issued on 25-3-1975. The plaintiff-appellant was contacted by the defendant but he expressed inability to get the sale-deed executed immediately on account of paucity of funds. The defendant- respondent gave a registered notice to the plaintiff requiring him to appear in the office of Sub-Registrar on 31-3-1975 for executing the sale-deed. It is submitted that the plaintiff- appellant refused to receive the notice and also failed to reach at the office of Sub Registrar on the relevant date and time. The defendant-respondent arrived in the office of Sub Registrar on the appointed date i. e. 31-3-1975 at 11. 00 a. m. and continued in the office of Sub Registrar till 4. 00 p. m. But since the plaintiff-appellant did not come to get the sale deed executed, the defendant is not responsible for the delay in execution of the sale deed. After exchange of the pleadings, the trial Court framed as many as seven issues. The plaintiff examined himself as PW-1 and one Sitaram as PW-2. The documentary evidence comprising of original agreement to sell, postal receipt, copy of the notice, self envelope returned after refusal and also extract of Khatauni and Khasras were exhibited. The defendant-respondent examined himself as DW-1, Anis Khan and Iqbal Khan as DW-2 and DW-3 respectively. The original notice acknowledging receiving of the application filed before the Sub Registrar, receipt issued by the Sub Registrar and order permitting transfer of land and certified copies of the sale deeds were adduced in evidence. The trial Court dismissed the suit of the plaintiff-appellant coming to a conclusion that the plaintiff-appellant was never ready and willing to perform his part of contract nor there was sufficient money with him to pay for sale consideration and, therefore, terms of the agreement to sell was violated by the plaintiff himself and not the defendant- respondent. The trial Court came to a conclusion that since registered notice dated 22-3-1975 was sent at the correct address of the plaintiff which was returned with an endorsement of refusal on the envelope, it shall be presumed that the notice has been served on the plaintiff and the plaintiff-appellant failed to turn up in the office of Sub Registrar on the date fixed to execute the sale deed, it shall be deemed that the plaintiff- appellant was never ready and willing to perform his part of contract. The trial Court had also taken into consideration that the institution of the suit in deficiency is a significant factor which indicates the poor financial capacity of the plaintiff and therefore, he came to the conclusion that the sale deed could not be executed on account of the plaintiff himself. The finding of the trial Court was confirmed in appeal and both the judgments have been challenged. The present appeal was admitted on the following two substantial questions of law : (1) Whether the judgment and decree passed by the lower appellate Court is vitiated and rendered nugatory by failure of the lower appellate Court in complying with the mandatory requirement of order 41 Rule 31 (a) C. P. C. ? (2) Whether the finding of the lower appellate Court on the compliance by the appellant of the requirement of Section 16 (1) (c) of the Specific Relief Act is vitiated by mere conjecturers speculation and against law laid down by this Hon'ble Court ? Learned Counsel for the appellant has submitted that the learned trial Court erred in law while deciding the issue of readiness and willingness as contemplated under Section 16 (1) (c) of the Specific Relief Act and findings of the Courts below stands vitiated in law. The statement of PW-1 Ajit Singh, plaintiff- appellant has completely been ignored whereas he had categorically stated that he was always ready and willing to perform his part of the contract and also denied that any notice was served to him whatsoever. There was no question of refusal on his pan. The registered notice dated 22. 3. 1975 alleged to be sent by the defendant-respondent indicating that he has obtained permission from the Ceiling authorities is absolutely false and without any substance. The findings against the appellant by the trial Court is ignoring the material evidence and drawing wrong conclusion on the basis of presumption. The Court completely failed to take into consideration that service by refusal as provided under Section 114 (1) Evidence Act and Section 27 of the General Clauses Act is rebuttable presumption and once it is specifically denied, onus shifts upon the person claiming benefit of such refusal. The defendant was liable to adduce reliable evidence and if he failed to do so, the Courts below were left with no option but to hold that the notice was not served. In support of this argument, learned Counsel has cited two decisions; Casto Chandra Chatterjee v. Chandra Pal Singh & Ors. , 1981 ARC, 281. Paragraphs 11 and 12 of the said judgment is quoted below : "11. The trial Court disposed of the issue by observing that the burden of proof lay upon the defendant to have summoned the postal official to disprove the endorsement. The trial Court clearly misconceived the law there. In order to rebut the presumption, the petitioner was not required to produce the postal official. At any rate, it would not be correct to say that without the production of the postal official, the petitioner could not be said to have rebutted the presumption. The petitioner had both in his written statement as well as subsequently in his statement on oath categorically denied having refused to accept any notice. Not only that, the petitioner had further stated that throughout the relevant periods and in particular on 28. 2. 1970, the petitioner was regularly attending his office, and that he was not at his residence during the hours when money orders are normally tendered. He had further produced a certificate from the Head of his office, namely, the Deputy Registrar of the High Court, in support of his assertion that the petitioner had been regularly attending his office and was not on leave on the relevant date or dates. All this was legal evidence b\ which presumption attaching service of the notice could in law be rebutted. The trial Court, therefore, erred in law in taking the view that the defendant failed to discharge the burden of proof which lay upon him because he had not had the postal official summoned to disprove the endorsement. 'the trial Court has also observed that the petitioner had not led evidence to disprove the endorsement. Obviously, the trial Court jailed to consider the evidence of the petitioner mentioned above.
(3.) THE second decision relied by the Counsel is Smt. Bachchi Devi & Ors. v. 1st Additional District Judge & Ors. , 1983 ARC 849. This is again in support of the argument regarding presumption regarding service of notice and consequently the findings on the question of willingness in favour of the plaintiff. THE learned Counsel has also assailed the findings of the trial Court regarding the unavailability of funds with the plaintiff since the suit was filed in the deficiency and therefore, it is evident that the plaintiff was not monetarily sound and not in a position to get the sale deed executed and, therefore, the willingness and readiness contemplated under Section 16 (1) (c) of the Specific Relief Act was against him. This finding is also challenged on the basis of a number of decisions; Nathu Singh v. Jagdish Singh, AIR 1992 Allahabad 174, this Court had ruled that the Court should not have come to a conclusion that there was paucity of fund only because the suit was filed in deficiency which can happen for a number of reasons, some times due to non availability of Court fee, stamps or due to mistaken impression about the exact Court fee but this alone can not be a sufficient factor to hold otherwise. THE second relied upon is, Ganesh Prasad v. Saraswati Devi & Ors. , AIR 1982 Allahabad 47. In this case, the suit was filed in forma pauperis and on account of this reason the Courts had come to a conclusion that the plaintiff could not pay the Court fee and, therefore, he had no money to get the sale-deed executed. This Court held that the words ready and willing in clause (c) of Section 16 are simple words and all what they mean is that a plaintiff, in order to succeed in a suit for specific performance must aver and prove that he has performed or has throughout been prepared to do his part under the contract. THE plaintiff does not have in such a case to go about jingling money to demonstrate his capacity to pay the purchase price. Learned Counsel for the respondent has countered each and every argument of the learned Counsel for the appellant. It is submitted that initially when the plaint was filed, there was no pleading regarding readiness and willingness on the part of the plaintiff to respect his part of the contract. It was introduced only by way of an amendment but the plaintiff though incorporated the amendment. He has failed to establish the fact by means of cogent evidence. Reliance has been placed by Sri T. P. Singh Senior Advocate in the case of Jugraj Singh & Anr. v. Labh Singh & Ors. , 1996 (2) JCLR 298 (SC) : AIR 1995 Supreme Court 945. The Apex Court ruled that the readiness and willingness was to be proved at all stages from the date of agreement till date of hearing of the suit. This burden has not been discharged by the plaintiff, on the contrary, it is the defendant-respondent who has established by means of cogent evidence that since the time of permission for sale was granted by the competent authority, he continuously approached the plaintiff for execution of the sale- deed but the sale could not be completed on account of the plaintiff who was all along shown laxity to perform his part of the contract and also had no means to pay balance amount. Not only the oral request but a registered notice was also sent calling upon the plaintiff to be present on the appointed date before the Sub-Registrar which was not complied and, therefore, it can not be said that the plaintiff was always willing to perform his part of contract. Reliance has also been placed on a decision of the Apex Court in the case of P. T. Thomas v. Thomas Job, 2006 (1) JCLR 543 (SC) : (2005) 6 Supreme Court Cases 478. On the basis of this decision, it is argued that since the registered notice was sent on the correct address, despite intimation by post office it was not accepted and the notice was returned unserved, the presumption would be that it was refused.;