Sughar Singh vs Hari Singh (Dead) through Lrs. & Ors.

Specific Relief Act, 1963: s.16(c) – Suit for specific performance of the agreement to sell – Both, the Trial Court as well as the First Appellate Court held all the issues in favour of the plaintiff including the issue that the plaintiff was always ready and willing to perform his part of contract – However, High Court in exercise of powers under s.100 of the CPC reversed the concurrent findings recorded by both the Courts below on readiness and willingness, solely on the ground that there were no specific averments in the plaint required as per s.16(c) of the Act – High Court also allowed the appeal on the ground that the relief of specific performance is the discretionary relief under s.20 of the Act and that even though the execution of the agreement to sell is proved and even the plaintiff was found to be always ready and willing to perform his part of the obligation under the agreement to sell, the decree of specific performance is not automatic and such grant of decree is dependent upon the principles of justice, equity and good conscience – On appeal, held: High Court committed a grave error in holding the issue with respect to readiness and willingness against the plaintiff solely on the ground that there were no specific averments/pleadings in the plaint as required under s.16(c) of the Act – The fact that initially payment of Rs.25,000/- was made at the time of execution of the agreement to sell and further sum of Rs.15,000/- in two installments were paid at the time when the subsequent two documents were executed for extension of time and even the time was extended at the instance of defendant No.1 and the balance amount of Rs.16,000/- was to be paid at the time of execution of the sale deed proved that the plaintiff was always ready and willing to perform his part of the contract under the agreement to sell – Suit for specific performance of agreement of sell decreed. Code of Civil Procedure, 1908: s.100 – Scope of interference – Held: There were concurrent findings of fact recorded by Trial Court as well as First Appellate Court on readiness and willingness on the part of the plaintiff, which were on appreciation of evidence on record – Therefore, in exercise of powers under s.100 of the CPC, High Court ought not to have interfered with such findings of fact unless such findings are found to be perverse – The findings recorded by the Trial Court as well as the First Appellate Court on readiness and willingness on the part of the plaintiff showed that they were not perverse and/or contrary to the evidence on record – On the contrary, High Court had ignored the necessary aspects on readiness and willingness including the conduct on the part of the parties – Specific Relief Act, 1963 – s.16(c).

Allowing the appeal, the Court

HELD: 1 The appellant-original plaintiff instituted the suit for specific performance of the agreement to sell. Both, the Trial Court as well as the First Appellate Court held all the issues in favour of the plaintiff including the issue that the plaintiff was always ready and willing to perform his part of contract. However, the High Court in exercise of powers under Section 100 of the CPC has reversed the concurrent findings recorded by both the Courts below on readiness and willingness, mainly / solely on the ground that there are no specific averments in the plaint which are required as per section 16(c) of the Act. The High Court has also allowed the appeal on the ground that the relief of specific performance is the discretionary relief under Section 20 of the Act and that even though the execution of the agreement to sell is proved and even the plaintiff was found to be always ready and willing to perform his part of the obligation under the agreement to sell, the decree of specific performance is not automatic and such grant of decree is dependent upon the principles of justice, equity and good conscience. [Para 5.1][301-A-D]

2. In the deposition of plaintiff, it was the specific case on behalf of the plaintiff that he paid initially Rs.25,000/- as part sale consideration and the sale deed was to be executed within a period of two years. That, thereafter, the period was extended on the prayer of vendor who as such was the father-in-law of the plaintiff. The time period was extended till 31.10.1984 and then the plaintiff paid a further sum of Rs.7000/- to vendor for which also the document was executed. Thus, from time to time, a total sum of Rs.40,000/- was paid out of the total sale consideration of Rs.56,000/-. As per the last document executed which has been held to be proved even by all the Courts below, the balance amount of Rs.16,000/- was to be paid at the time of execution of sale deed. It is specifically stated in the deposition that he was ready and willing to perform his part of the obligation in terms of agreement to sell and this fact was known to vendor. Considering the aforesaid facts and circumstances, the High Court committed a grave error in holding the issue with respect to readiness and willingness against the plaintiff solely on the ground that there are no specific averments/pleadings in the plaint as required under Section 16(c) of the Act. Considering the fact that initially payment of Rs.25,000/- was made at the time of execution of the agreement to sell and further sum of Rs.15,000/- in two installments were paid at the time when the subsequent two documents were executed for extension of time and even the time was extended at the instance of defendant No.1 and the balance amount of Rs.16,000/- was to be paid at the time of execution of the sale deed, it can safely be said that the plaintiff was always ready and willing to perform his part of the contract under the agreement to sell. [Para 6.1][303-B-F]

3. There were concurrent findings of fact recorded by the Trial Court as well as the First Appellate Court on readiness and willingness on the part of the plaintiff, which were on appreciation of evidence on record. Therefore, in exercise of powers under Section 100 of the CPC the High Court ought not to have interfered with such findings of fact unless such findings are found to be perverse. Having gone through the findings recorded by the Trial Court as well as the First Appellate Court on readiness and willingness on the part of the plaintiff, findings recorded cannot be said to be perverse and/or contrary to the evidence on record. On the contrary High Court has ignored the necessary aspects on readiness and willingness including the conduct on the part of the parties. [Para 7][304-G-H; 305-A-B]

4. Even the observations made by the High Court that Forms 47 and 48 of the Appendix A to the CPC provide for making an averment that the plaintiff has been “and still is ready and willing specifically to perform the agreement on his part” or that “the plaintiff is still ready and willing to pay the purchase money of the said property to the defendant” and that “there is noncompliance of Section 16(c) of the Specific Relief Act and the plaint does not even contain any averment that the plaintiff ever required defendant no.1 to attend the office of the Sub-Registrar to execute the sale deed within time agreed are too technical in the facts and circumstances of the case. The overall circumstances and the conduct on the part of the parties are relevant consideration for the purpose of deciding the aforesaid issues and the prayer of the plaintiff in whose favour the execution of the agreement to sell has been held to be proved. The High Court has given unnecessary stress on the word “still”. [Para 8] [305-C-E]

C.S. Venkatesh v. A.S.C. Murthy (Dead) By Lrs. and Ors. (2020) 3 SCC 280: [2020] 2 SCR 676 – relied on

5. In the present case, even it was not the case on behalf of the defendants and even there is no finding by the High Court that the plaintiff was not having any means to generate consideration amount. As per the last extension and the document executed the balance amount of sale consideration i.e. Rs. 16,000/- was to be paid at the time of execution of the sale deed and earlier out of Rs.56,000/- of total sale consideration, Rs.40,000/- was already paid and there were two extensions at the instance of the original defendant No.1 who was his father-inlaw. [Para 9][305-H; 306-A-B]

6. Now, so far as the finding recorded by the High Court and the observations made by the High court on Section 20 of the Act and the observation that even if the agreement is found to be duly executed and the plaintiff is found to be ready and willing to perform his part of the Agreement, grant of decree of specific performance is not automatic and it is a discretionary relief is concerned, the same cannot be accepted and/or approved. In such a case, many a times it would be giving a premium to the dishonest conduct on the part of the defendant / executant of the agreement to sell. Even the discretion under Section 20 of the Act is required to be exercised judiciously, soundly and reasonably. The plaintiff cannot be punished by refusing the relief of specific performance despite the fact that the execution of the agreement to sell in his favour has been established and proved and that he is found to be always ready and willing to perform his part of the contract. Not to grant the decree of specific performance despite the execution of the agreement to sell is proved; part sale consideration is proved and the plaintiff is always ready and willing to perform his part of the contract would encourage the dishonesty. In such a situation, the balance should tilt in favour of the plaintiff rather than in favour of the defendant – executant of the agreement to sell, while exercising the discretion judiciously. [Para 10][306-B-F]

7. Even amendment to the Specific Relief Act, 1963 by which section 10(a) has been inserted, though may not be applicable retrospectively but can be a guide on the discretionary relief. Now the legislature has also thought it to insert Section 10(a) and now the specific performance is no longer a discretionary relief. As such the question whether the said provision would be applicable retrospectively or not and/or should be made applicable to all pending proceedings including appeals is kept open. However, at the same time, the same can be a guide. [Para 10][306-F-G]

8. Even otherwise, as such on applicability of Section 20 of the Act, no issue was framed either by the Trial Court or by the First Appellate Court or even by the High Court. The same has been dealt with by the High Court for the first time in a Second Appeal under Section 100 of the CPC. Even otherwise no cogent reasons have been given as to why the decree of specific performance shall not be passed in favour of the plaintiff. [Para 10.1][306-H; 307-A]

9. Now, so far as the submission on behalf of the defendant Nos.2 to 5 that the agreement to sell was executed long back and that defendant Nos.2 to 5 are in possession of the suit property / land since many years and if the suit is decreed, in that case, they will have to vacate the suit land and therefore, the discretion may be exercised in favour of defendant Nos.2 to 5 while declining the decree of specific performance in favour of the plaintiff is concerned, the aforesaid cannot be accepted in the facts and circumstances of the case. There are concurrent findings of fact recorded by the Courts below that the defendant Nos.2 to 5 were in knowledge of the agreement to sell in favour of the plaintiff; despite the same they purchased the suit land surreptitiously. Even the sale consideration mentioned in the sale deed in their favour is found to be doubtful. Apart from the same, for all these years the defendant Nos. 2 to 5 cultivated the suit land and enjoyed the fruits while in possession. On the contrary, the balance must tilt in favour of the plaintiff as the plaintiff is deprived of the possession for all these years because of the long-drawn litigation. The trial Court passed the decree as far as back on 07.02.1987 but because of the appeal before the First Appellate Court and thereafter, Second Appeal before the High Court and thereafter a remand order by the High Court and again the decision by the First Appellate Court and thereafter by the High Court and the proceeding before this Court, huge time has lapsed, which cannot be to the disadvantage of the plaintiff. [Para 11][307-B-F] Syed Dastagir v. T.R. Gopalakrishna Setty (1999) 6 SCC

337 : [1999] 1 Suppl. SCR 351 – referred to