JAMBAGALAKSHMI KRISHNAN Vs. P C MARTIN

JUDGEMENT

(1.) THESE two original side appeals arise out of a common judgment of a learned single Judge of this Court in C. S. No. 232 of 1981 dated 7. 6. 1984.

(2.) THE plaintiff is the appellant in O. S. A. No. 166 of 1985 and the first defendant is the appellant in O. S. A. No. 9 of 1986. THE appellant p. C. Martin in O. S. A. No. 166 of 1985 instituted a suit on the original side of this Court for specific performance of contract for sale against the defendants. THE first defendant has filed O. S. A. No. 9 of 1986 against the impugned judgment insofar as the counter-claim made by the 1st defendant against the plaintiff was not decreed in its entirety.

(3.) IT is contended by Mr. S. Chellaswamy, learned Senior counsel appearing in O. S. A. No. 166 of 1985 on behalf of the plaintiff/appellant that the judgment and decree of the single Judge is unsustainable both on facts and in law. Mr. S. Chellasamy, strenuously contended that the plaintiff/ appellant was ready and willing to fulfil his part of the contract and the learned single Judge erred in holding that the plaintiff/ appellant was not ready and willing to fulfil his part of contract of sale. Mr. Chellaswamy was fair in his submission that upon the facts and circumstances of the case, there is some delay in tendering the balance of sale consideration on the part of the plaintiff/ appellant and submitted that any delay on the part of the plaintiff/ appellant in fulfilling his part of the contract has to be judged upon the peculiar facts and circumstances of the case. In this connection, the learned counsel referred to Sec. 46 of the Contract Act which reads as follows: ''where, by the contract, a promisor is to perform his promise without application by the promisee, and no time for performance is specified, the engagement must be performed within a reasonable time. Explanation: The question,'what is a reasonable time'is, in each particular case, a question of fact.' Learned counsel for the petitioner further contended that as far as the sale of immovable property is concerned, it is well settled by the rulings of the Apex Court that time is not the essence of the contract. In support of the above contention, the learned counsel cited the ruling of the supreme Court reported in Chand Rani v. Kamal Rani, A. I. R. 1993 S. C. 1742 at 1746, wherein the Supreme Court observed as follows: 'in Govind Prasad Chatunedi v. Hari Dutt Shastri, (1977)2 S. C. C, 539: A. I. R. 1977 S. C. 1005: (1977)2 S. C. R. 877, following the above ruling it was held (at pages 543-544 of S. C. C: (at pp. 1007-08 of a. I. R.): 'IT is settled law that the fixation of the period within which the contract has to be performed does not make the stipulation as to time the essence of the contract. When a contract rentes to sale of immovable property, it will normally be presumed that the time is not the essence of the contract. (Vide Gomathinayagam Pillai v. Palaniswami Nadar, a. I. R. 1967 S. C. 868: (1967)1 S. C. R. 227,233: (1967)2 S. C. W. R. 147. IT may also be mentioned that the language used in the agreement is not such as to indicate in unmistakable terms that the time is of the essence of the contract. The intention to treat time as the essence of the contract may be evidenced by circumstances which are sufficiently strong to displace the normal presumption that in a contract of sale of land stipulation as to time is not the essence of the contract.' The learned counsel submitted that what is reasonable time for performance of contract will depend upon the facts of each particular case. On the other hand, Mr. S. Gopalratnam, learned Senior Counsel appearing on behalf of the respondents submitted that there are no infirmities in the impugned judgment and the contentions of the learned counsel for appellant are unsustainable in law. The learned counsel further contended that the learned single Judge erred in his finding to the effect that the counterclaim by the first defendant/ appellant for recovery of possession of the suit property was not maintainable. Mr. S. Gopalratnam contended that a suit for specific performance of conduct for sale cannot be enforced in favour of a person who fails to aver and prove his readiness and willingness to perform his part of the contract and the plaintiff in the instant case miserably failed in both the aspects. Mr. Gopalratnam in this connection referred to two decisions of this court reported in Pushparani Shanmughasundharam and two others v. Pauline manonmani James and five others, (1993)1 L. W. 219 and Maruthai, S. v. Padmini ramachandran, (1993)2 L. W. 318. In the latter case, a Division Bench of this court to which one of us was a party to the judgment has elaborately considered the case law on the subject and has observed as follows: 'that in the case of sale of immovable property, there is no presumption as to time being the essence of the contract. But even if it is not the obvious essence of the contract, the court may infer that it has to be performed within a reasonable time, if the conditions are from the express terms of the contract, from the nature of the property and from the surrounding circumstances, for example, the object of making the contract. The court may infer the fact that the plaintiff has not been ready and willing to perform his part of the contract.' After carefully considering the contentions of both the learned Senior Counsel for the appellant and the respondent and the evidence on record both oral and documentary, we are of the view that there is no infirmity in the impugned judgment of the learned Single Judge as far as his findings are concerned that the plaintiff/ appellant is not entitled for specific performance of the contract. We are unable to accept the contention of mr. Chellaswamy to the effect that Sec. 46 of the Contract Act will apply to the instant case. A reading of Sec. 46 of the Contract Act makes it clear that where by the contract, a promisor is to perform his promise and no time for performance is specified, the engagement must be performed within a reasonable time and what is reasonable time is a question of fact in each case. In the instant case, contract for sale itself specifies three months time which was erroneously stated in the plaint as six months. The plaintiff failed to perform within reasonable time upon the facts and circumstances of the instant case even assuming the contract for sale did not specify time for performance of contract. In this connection, the learned Judge has rightly held as follows: "it is difficult to believe his explanation for the non-production of this vital document. In fact, I am of opinion that he has suppressed the same and produced into court after the suit was listed for trial. In this connection, I may also point out that at least after the production of this document, Ex. P-14, the plaintiff ought to have amended the plaint that the time stipulated in the contract was only three months and not six months as pleaded in the plaint. But, he has not chosen to do so till now and the allegation in the plaint is that six months'time was stipulated for the performance of the contract. Now, the plaintiff him-self has given a go-bye to his six months story and he has stated that the mention of three months'time in the agreement was only for the purpose of records and that it has no significance or relevances. I am unable to accept this contention. " Even though in a contract for sale of immovable property, time is not essence of contract, it is well-settled that it has to be performed within a reasonable time. In the instant case, it has not been performed at all within reasonable time. We therefore, reject the contentions of mr. S. Chellaswamy on the other hand, there is force in the contentions of mr. Gopalratnam, learned senior counsel appearing on behalf of the respondent to the effect that a suit for specific performance of contract for sale, cannot be enforced in favour of the plaintiff who fails to aver and prove his willingness and readiness to perform his part of the contract. In the instant case, there are averments in para. 13 of the plaint which are as follows: "the plaintiff is ready and willing to pay the balance of the consideration on receipt of the document of title and ready and willing to perform his part of the contract of sale. " But the plaintiff has not proved the averments of willingness and readiness in the instant case. In this connection, the Division bench of this Court in Pushparani Shanmughasundaram and two others v. Pauline manonmani James and five others, (1993)1 L. W. 219 at 225, has observed as follows: "clause (c) of Sec. 16 of the Specific Relief Act, 1963 reads as follows: "specific performance of a contract cannot be enforced in favour of a person, who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. " This is a special rule of pleading and the proof, for the reason that the relief in a suit for specific performance of contract is a relief in equity. Sec. 16 which speaks of personal bar to relief has this special provision which deals with objections, not derived from the nature of the contract, but solely from the acts or conduct of the claimant. Ordinarily rules of pleading require that the plaint should contain only a statement in a concised form of the material facts on which the party pleading relies, but not be evidence by which they have to be proved. 0. 6, Rule 8 of the Code Civil procedure says: "where a contract is alleged in any pleading, a bare denial of the same by the opposite party shall be construed only as a denial in fact of the express contract alleged or of the matters of fact from which the same may be implied, and not as a denial of the legality or sufficiency in law of such contract. " Provisions in Chapter VI of the Indian Evidence Act say in no uncertain terms that the terms of a document cannot be proved otherwise than by the production of the document itself. But, Courts in India have taken the view that apart from the exceptions that are enumerated in the said chapter, the fact of proof of the transaction is permissible. Rules as to burden of proof in Chapter VII of the Indian Evidence Act say, in Secs. 101 to 106, that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts, which he asserts, must prove that those facts exist; the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side; the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person. The words in Sec. 103'the burden of proof as to any particular facts lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof shall lie on any particular person clearly show that a fact required to be proved by a law, has to be proved by the person upon whom the burden is created. Such exception is indisputable in the language of clause (c) of Sec. 16 of the Specific Relief Act, 1963, afore quoted. This provision says, specific performance of a contract cannot be enforced in favour of a person who fails to aver and prove. . . . " The word'prove'in this (section) must be understood in the sense that the plaintiff is required to bring in support of the fact in issue such facts, which would prove his readiness and wilingness to perform his part of the contract and the Court can either disbelieve it or believe it. In the light of the above, when we see the aforecited two judgments, that is to say, the judgment of a learned single judge of this Court in the case of P. Lakshmianimal v. S. Lakshmianimal, (1980)2 m. L. J. 192 and the Bench decision of the Rajasthan High Court in the case of kirpal Singh v. Kartaro, A. I. R. 1980 Raj. 212, we fail to find any departure. IT is not possible to read in those judgments a rule that will require a pleading of denial of the contract or a specific denial about the ever readiness and willingness. Such readiness and will always be a fact of special knowledge and conduct of the plaintiff and not that of the defendant. The specific acts of representations to the defendant, if pleaded may require a denial. Absence of denial in such a case, and in some other cases may be a circumstance, as has been said in the judgment of Rajasthan High Court, and not in the absence of denial, the requirement of proof created by the statute, will be waived. "