RAMAKRISHNA PANICKER Vs. KRISHNA PILLAI

JUDGEMENT

(1.) BY Ex. P1 dated 13-4-1951 the defendant entered into an agreement with the mother of the plaintiffs for reconveying a property sold by the plaintiff's mother to the defendant by a previous deed, Ex. D2. Such sale under Ex. D2 was for Rs. 750/-, and at the time when the defendant took the sale he was a mortgagee of the property having obtained such mortgage on 13-7-1122 for Rs. 500/ -. There was an earlier mortgage in respect of the property of the year 1092 and the defendant on the strength of the mortgage dated 13 71122 taken by him, had filed a suit for redemption, O. S. No. 507 of 1123 of the Alleppey Munsiff's Court. It was during the pendency of that suit for redemption that he, the mortgagee obtained sale of the equity of redemption also from the mother of the plaintiffs under Ex. D2. In the agreement for re-conveyance executed on 13 41951 the defendant agreed that, within a month of his getting delivery of the property pursuant to the decree in O. S. 507 of 1123, he would convey the property to plaintiff's mother, the consideration for such conveyance being the mortgage amount of Rs. 500/- plus interest thereon from the date of the mortgage (there is a dispute as to the interpretation in regard to this term), the amount advanced in addition to the mortgage amount for taking Ex. D2 sale deed and interest thereon from the date of Ex. P1 and further, the costs incurred by the defendant as seen from his account. There was a further clause in Ex. P1 that in the event of default to act according to the terms of the karar the karar would stand cancelled. This suit has arisen at the instance of plaintiffs, who on the death of their mother, claimed specific performance of the agreement to reconvey, contained in Ex. P1. The property was delivered over to the defendant in execution of the decree in O. S. No. 507 of 1123 on 8 41960 and therefore under the terms of Ex. P1 he was bound to execute a sale deed on demand by the plaintiffs on or before 8 51960. It is the case of the plaintiffs that in spite of demand defendant refused to execute the sale deed. A notice was issued to him. Still he did not agree to execute the sale deed and therefore they had to come to court with a suit for specific performance of the agreement to sell contained in Ex. PL It may be mentioned that on the date of Ex. P1 a counterpart of Ex. PI was executed by the plaintiff's mother in favour of the defendant with terms same as those contained in Ex. P1i. In the plaint the plaintiffs have calculated the amount payable under the terms of Ex. P1 as Rs. 1285. In arriving at this figure they had taken the interest payable on the mortgage amount of Rs. 5000/- as limited to a moiety the interest payable on the amount of Rs. 250 paid for taking Ex. D2 in addition to the mortgage amount also as limited to a moiety and the expenses of litigation as Rs. 160/. The defendant in the written statement set up the contention that Ex. P1 has no legal force, that it was not intented to operate and that it did not come into operation. They also contended that, in the event of specific performance being decreed, the amount payable was Rs. 5855/- and an account for this amount so claimed was also shown in the written statement. On these pleadings the parties went to trial. The trial court decreed the suit in terms of the plaint, holding that Ex. P1 karar was valid, that it was supported by consideration, that it was enforceable, that the sale deed dated 12-4-1951 was not intended by the parties to be treated as an outright deed of sale, that the amount due, to be paid under the terms of Ex. P1, was Rs. 1285/- and that had been offered & therefore plaintiff was entitled to a decree. The lower appellant court in the appeal filed by the defendant, held that Ex. D2 sale had come into effect, that plaintiffs had not proved that they were ready and willing to perform their part of the contract, the proof of which alone will entitle the plaintiffs in a suit for specific performance for a decree and therefore the suit should fail. In this view it found that the other questions did not arise for discussion. The plaintiffs who thus lost in the appellate court, have filed this appeal.

(2.) THE main question that, therefore, arises in this appeal is whether the suit, as now laid, for specific performance, is maintainable. THE ground on which the lower appellate court held that this is not maintainable is that plaintiffs have not shown that they were ready and willing to perform their part of agreement. I am afraid this question may not arise for consideration at all in the nature of the pleadings in this case. No doubt, in a suit for specific performance it is for the plaintiffs to aver that they were and are ready and willing to perform their part of the agreement. THE question of evidence in proof of such a plea would arise only if such a plea is made by the plaintiff and is traversed by the defendant. If there is no plea at all then there is no question of considering the evidence on that point. If there is a plea but it is not traversed by the defendant in his written statement, then again the plaintiff is not called upon to prove his readiness and willingness. In this case there is controversy as to whether the averments in the plaint can be construed to mean that the plaintiffs have been ready and willing to perform their part of the agreement and I will presently consider what I think to be the correct construction to be put upon the plaint in this case. But if I find that the averments in the plaint are sufficient, then no question of evidence would arise because it is admitted that such a plea is not traversed in the written statement. THEre is no case for the defendant that the plaintiffs were not ready and willing to perform the contract or that the plaintiffs did not treat the contract as subsisting. THErefore, in either case, in this state of pleadings there is no question of going into the evidence On this point. If so, the lower appellate court was not justified in embarking upon an investigation into this question and finding, on the evidence that the plaintiffs were not ready and willing to perform their part of the contract.

(3.) I have pointed out above that in the case before the privy Council what was required to be done by the plaintiff was that he should have treated the contract as subsisting. Even in the absence of a specific averment that the plaintiff is ready and willing to perform his part of the contract if he avers that the contract is subsisting and he is prepared to act in accordance with the terms of the Contract it appears that would be sufficient to hold that the suit is maintainable. No doubt, the Code of Civil procedure prescribes the form in which the plaint in a suit for specific performance has to be drafted. Form No. 47 in Appendix A relates to such a plaint and the averment that plaintiff is ready and willing to perform his part of the contract is one of the averments shown as necessary in the said form. My learned brother Raman Nayar J. (as he then was) has occasion to consider a case where in a plaint suit for specific performance, there were no averments in terms required by form No. 47, and my learned brother referred to the obstinate refusal of lawyers in the mofussil to look even so far as the forms given in appendix A of the Civil Procedure Code before settling their pleadings. id spite of the absence of such an averment in terms of form No. 47, in the plaint, my learned brother has construed the plaint as one which contained the necessary averments to maintain suit. I am referring to this only because, if, apart from non-compliance with form No. 47, the substance of the averments in the plaint are sufficient to maintain a suit for specific performance the plaintiffs should not be disentitled to relief in the suit on the ground that the suit is not maintainable. I am not saying, nor do I understand my learned brother Raman Nayar J. , as having said, that a suit for specific performance need not conform to the requirements prescribed in Forms 47 and 48 of the first schedule in the Civil Procedure Code. I was only pointing out the consequences of non-compliance with those requirements. I do not consider that such non-compliance would be so fatal as to result in throwing out the suit as not maintainable in law, if the allegations in the plaint taken as a whole amount in substance and materially, to what required to be alleged in the forms prescribed. In that event there would be substantial compliance and that, according to me, would be enough. After the arguments of counsel in the case was closed, I have come to notice the decision of the Supreme Court in Ouseph varghese v. Joseph Aley (1969) II SC. WR. 347. Though the Supreme Court considers that a suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 referred to earlier, the consequences of non-complaince or whether substantial compliance will be sufficient are not questions which have been considered by the Supreme Court. I do not think there is anything in the decision of the Supreme Court which goes against the view I have taken here.