BECHU Vs. RAM LAKHAN SINGH

JUDGEMENT

(1.) This second appeal is by the defendants in a suit for specific performance of an agreement dated June 15, 1967 for the trans fer of some agricultural plots to the plaintiff-respondent. The suit had been dismissed by the trial Court but was decreed by the lower appellate Court. The first defendant-appellant is said to have executed an agreement on June 15, 1967 for selling the plots, of which he was sirdar, to the plaintiff respondent fora sum of Rs. 2,750/ -. This he did after obtaining a sum of Rs. 1375/- from the plaintiff as earnest money. The sale-deed was to be exe cuted by him, under the agreement, within a period of three years. He did not do so. Instead he executed a sale- deed in favour of the second defendant appellant Smt. Nanki, his daughter, on December 31, 1969. There was thus a breach of the agreement by the first defendant. The suit was filed for a direc tion to him to execute the sale-deed failing which it was prayed that the Court may execute it in favour of the plaintiff. The suit was filed on February 5, 1970. The defendants contested the suit and filed their written statement on December 26, 1970. Bechu denied having executed any agreement in favour of the plaintiff as alleged. The second defendant, namely, Smt. Nanki, claimed that the plots had been transferred to her for valuable consideration and that shs had no notice of any alleged agreement for the sale of those plots in favour of the plaintiff. The first issues which was framed by the trial Court was in regard to the question as to whether the first defendant had executed any agreement in favour of the plaintiff for transferring the plots to him on June 15, 1967 after taking an advance of Rs. 1375/- as alleged. The second issue was whether the defendant No. 2 was a bona fide purchaser for value without notice of the agreement in favour of the plaintiff. Parties led evidence in support of their respective cases. On consideration of this evidence, the trial Court came to the conclusion that the first defendant had not agreed to transfer the land in suit to the plaintiff nor had be executed any agreement in that regard after obtaining a sum of Rs. 1375/- as earnest money from the plaintiff. It also held that the second defendant was a bona fide purchaser for value of the plots from the first defendant and that she had no knowledge of any alleged agreement by the first defendant as held by the trial Court. The decree was assailed by the plaintiff in an appeal. The lower appellate Court went into the evidence afresh and on apprai sal of the evidence on record. it came to the conclusion that there was an argeement executed by the first defendant in favour of the plaintiff as alleged by him and that it had been executed after a sum of Rs. 1375/- had been paid to the first defendant by the plaintiff. It also held that the second defendant had full knowledge of the agreement. On these findings, the lower appellate Court set aside the decree of the trial Court and passed a decree in favour of the plaintiff. By this decree it directed that the fust defendant should execute the sale deed of the plots in question in favour of the plaintiff on the latter depositing the remaining amount of Rs. 1375/- and that in case the plaintiff deposited the amount and the sale-deed was not executed by the defendant, he shall be entitled to get it executed through Court and obtain possession of the plots. Aggrieved, the defendants have approached this Court in the present second appeal. The lower appellate Court had decided the case by its judgmsnt dated January 23, 1973. The second appeal was admitted to hearing by this Court on May 15, 1973 and notice thereof directed to issue to the plaintiff-respondent. The very first ground which was mentioned in the memorandum of appeal was that there being no averment in the plaint and there being no evidence as required under Sec. 16 (c) (wrongly mentioned as Sec. 15 (c) of the Specific Re lief Act, that the plaintiff-respondent had always been willing to perform the essential terms of the contract, the suit for specific performance could not be decreed. The second ground mentioned in the memorandum of appeal was that it was argued before the lower appellate Court that the requirements of Section 16 (c) again incorrectly mentioned Section 15 (c) of the Specific Relief Act having not been complied with, ths suit should have been dismissed on this ground alone but the lower appellate Court did not record any finding on this question. Some other grounds were also mentioned. The appeal was taken up for hearing by this Court on July 20, 1981. The first point which was urged by the learned counsel for the defendant-appellants in the forefront was that there being no averment about the readiness and willingness of the plaintiff to perform the essential terms of the contract, which were to be performed by him, in the plaint, the lower appellate Court could not pass a decree in favour of the plaintiff and that the decree was clearly contrary to law. It was urged that a plea of the nature contem plated by Section 16 (c) of the Specific Relief Act, in this respect, was a part of the cause of action itself as framed, the plaint could not be said to disclose any cause of action. In support of this submission, the learned counsel for the appellants placed reliance on the decision of a Division Bench of this Court in Mahboob Khan and others v. Ayub Khan and others A. I. R. 1978 Alld. 463. The allegations made by the. plaintiff in the plaint were read out from a certified copy of the plaint by the learned counsel for the appellants which the, appellants had obtained on February 16, 1973. The memorandum of appeal is dated March 6, 1973. The stamp Reporter of this Court made a report on it on March 8, 1973. It has bean pointed out by Registry that the original record of the Courts below was destroyed in a fire in ths record room of the Civil Court, Allahabad in the year 1978. The relevant portion of Section 16 (c) of the Specific Relief Act reads thus; "16, Specific performance of a contract cannot be enforced in favour of a person - (a ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terras of the contract which are to be performed by him, other than the terms, the perform ance of which has been prevented or waived by the defendant. Explanation: -. . . . . . . . . . . . . . . . . . Dealing with the aforesaid provision, the Division Bench in the case of Mehboob Khan (supra) ruled that the compliance of the requirements of Section 16 (c) of the Specific Relief Act was mandatory and that in the absence of the neces sary averment, in the plaint and in absence of the proof of the same that the plaintiff had been ready and willing to perform his part of the contract the suit cannot succeed. In coming to this conclusion the Division Bench placed reliance on some decision of the Supreme Court. It was also held by the Division Bench, relying upon the decision of Supreme Court in Prem Raj v. D. L. F. Housing and Construction (Pvt.) Ltd. A. I. R. 1568 S. C. 1355 that in the absence of an averment in the plaint that the plaintiff was ready and willing to perform his part of contract there was no cause of action in the suit. As such, the suit could not be decreed. It was contended for the plaintiff-respondent by his learned counsel that the defendants had not taken the objection about lack of averments in terms of Section 16 (c) of the Specific Relief Act at any earlier stage of the suit so that they were not entitled to raise fhe question for the first time in the second appeal. It was also urged that in case the defendants had taken this objection in the written statement filed by them on December 26, 1970, it have been open to the plaintiff to seek amendment of the plaint by incorporating the necessary averments or else file another plaint with the necessary averment after seeking permission therefor by one trial Court. The suit could have been filed, accord ing to the learned counsel for the plaintiff-respondent, within a period of three years from December 16. 1969 on which date the cause of action arose. In the alternative it was urged for the plaintiff-respondent that the plaintiff was entitl ed to seek amendment of the plaint even at this stage and that he should be permitted to do so. As far as the question of permitting the plaintiff to seek amendment of the plaint at this stage is concerned, it is noticeable that inspite of a definite ground, being ground No, 1, having been taken by the defendant-appellants in the memorandum of appeal dated March 6, 1973, of which a copy admittedly was served upon the plaintiff-respondent, no attempt was made by the plaintiff to seek amendment of the plaint for all these years. The prayer for seeking an amendment at this stage, therefore, cannot be allowed with any justification. An averment of the nature contemplated by Section 16 (c) of the Specific Relief Act is a part of the cause of action. It is clear that permitting the plain tiff to seek an amendment now after eleven years of the institution of the suit, would amount to permitting him the right to agitate in respect of a claim which he could make only within three years from the ac. rual of the causa of action which, according to the learned counsel for the plaintiff, was on Dace in-ber 16, 1969. What has seriously been contended by the learned counsel for the plain tiff has been that the failure of the defendants to raise any objection about the lack of necessary averment in the plaint, amounts to waiver of the objection and that they should not be permitted to urge it as a ground of defence to their liability to execute the deed of sale. It has been contended that, notwithstand ing the fact that Section 16 (c) of the Specific Relief Act is mandatory in character, it was open to the defendants' to have waived its compliance and that their failure to raise an objection to the nature which is being one at this stage amounts to a waiver of the objection on their part. My attention was drawn to the provisions of Section 80 C. P. C. which also are mandatory, in character, and on the strength of some decisions it was urged that the defen dants could have waived compliance with the mandatory provisions of law. The decisions to which my attention was invited in this regard were those rendered in the cases of Puma Chandra Sarkar v. Padha Rani Dassya and others A. I. R. 1931 Cal. 175: Vellayan Chattiar and others v. The Government of Provinces of Madras and another A. I. R. 1947 P. C. 197 State of Rajasthan v. Girdhari Lal Chunni Lal Modi A. I. R. 1959 Raj. 136 (F. B. ). Lalchand Chowdhury v. Union of India A. I. R. 1960 Cal. 270 and Gaja and others v. Das Koeri and others A. I. R. 1904 Alld. 471. The proposition of law which has been laid down in the aforesaid deci sions is that even though the requirement of giving a notice under Section 80 C. P. C. was mandatory in character, since a notice under that provision was meant to enable the defendant, if he so chooses, to consider the claim made by the plaintiff and was for the benefit of the defendant, it could be waived by him. The basic premises on which these decisions are founded clearly is that the mandatory provision of Sec. 80 C. P. C. is for the benefit of the defendant. On that premise it cannot be disputed that it could be open to the defendant to waive the benefit and thus obviate the necessity on the part of the plaintiff to serve it with the notice. Section 16 (c) of the Specific Relief Act is in the nature of a fetter on the right of the Court to grant relief to a plaintiff in a suit for specific performance of a contract in case the plaintiff fails to aver that he was willing and ready to perform the essential terms of the contract required to be performed by him. As held by the Supreme Court in the case of Prem Raj v. D. L. F. Housing and Construction (Pvt.) Ltd. case (supra) and interpreted by the Division Bench in Mahboob Khan's case (supra) an averment of the nature contemplated by Sec tion 16 (c) is a part of the cause of action for a suit for specific performance of the contract. If the cause of action itself is missing from the plaint, it is obvi ous that the plaintiff cannot seek relief in the suit commenced by that plaint. The submission that the decision of the Division Bench in Mehboob Khan's case required re- consideration in as much as it has not dealt with the submission based on the right of the defendant in a suit for specific perform ance of the contract to waive the requirement of Section 16 (c) cannot be accepted. Apart from the fact that the decision of the Division Bench in that case is based upon various decision of this Court and the Supreme Court, the submission about waiver of the requirement of Section 16 (c) of the Specific Relief Act fails to take into account the real nature of the provision. If an averment of contemplation by Section 16 (c) of the Specific Relief Act is, as held by me, essential for the reason that the said provision contains a fetter upon the power of the Court to decree the suit in case the plaintiff fails to make the averment, it is obvious that any submission based upoa waiver on the part of the defendant cannot be countenanced. The argument that the appellants were precluded from raising this objec tion at the stage of the Second Appeal is again answered against the plaintiff-respondent by the decision of the Bench in Mehboob Khan's case. It was observed by the Bench tin Paragraph 18) that even if the defendant were absent and did not take part in the proceedings, it was the duty of the plaintiff to make the necessary averment as required, under Section 16 (c) of the Specific Relief Act. It is clear that an objection of the nature which has been raised by the learned counsel for the appellants in this second appeal could be raised by them even for the first time in this Court. The decision of the Division Bench in the case of Sri Sharda Prasad Singh v. Sheo Shankar Lal (First Appeal No. 136 of 1971 (decided on August 21, 1980 ).), upon which great reliance has been placed by the learned counsel for the plaintiff-respondent, was rendered in entirely different circumstances. In that case, the Bench, after noticing various decisions on the subject, proceeded to examine the contents of the plaint. It found on an exa mination of the plaint that even though no express averment of his readiness and willingness to perform his part of the contract had been made by the plaintiff the allegations contained in the various paragraphs of the plaint clear ly led to the conclusion that the plaintiff was ever ready and willing to perform his part of the contract. In the present case, it is clear from the certified copy of the plaint, which has been made available to the Court for its perusal by the learned counsel for the plaintiff and which was issued by the office of the District Judge, Allahabad on February 16, 1973, that there is neither any express not implied assertion on the part of the plaintiff of his readiness and willingness to perform the essen tial part of the contract. In the first paragraph of the plaint, it is mentioned that defendant No. 1 was the sirdar of the plots mentioned at the feet of the plaint which came to his share in consolidation proceedings. The second para graph recites that the first defendant had agreed to transfer the plots to the plaintiff for a consideration of Ks. 2750/- and after receiving a sum of Rs. 1375/-as advance, executed an agreement dated June 15, 1967 and promised that within a period of three years, he would execute a sale deed after obtaining bhumidari sanad and receiving from the plaintiff a further sum of Rs. 1375/ -. In paragraph 3 of the plaint, the allegation made is that on December 23, 1969 the bhumidari sanad was made out in favour of the first defendant and it was obtained by the first defendant, on December 31,1969. Further that the first defendant, inspite of reminder and requests by the plaintiff, did not exe cute a sale-deed in terms of the agreement dated June 15, 1967 and instead executed a fictitious sale deed in favour of his daughter, the second defendant and got it registered on December 3, 1969, even though he did not 'get any amount by way of consideration and the fact that there was an agreement in favour of the plaintiff was well known to the second defendant. The sale-deed dated December 3 1969 had no effect on the rights of the plaintiff. In the next paragraph it is asserted that the plaintiff was entitled to get a sale deed of the property executed in his favour in terms of the agreement dated June 15, 1967. In paragraph 5 of the plaint, it is thereafter mentioned that cause of action for the suit arose on June 15, 1967 on the date of agreement and on December 3, 1969 when the fictitious sale- deed was executed in favour of the second defendant. In paragraph 6 of the plaint, it is mentioned that the valuation of the suit lor the purpose of jurisdiction was Rs. 2750/- on which the Court fee of Rs. 393/50 was paid. In the last paragraph, namely, paragraph 7 of the plaint, it is mentioned that consolidation proceedings had closed in the village which the plots had been given new numbers. Thereafter follows the relief clause. There is, therefore, complete absence of an averment about the readi ness and willingness of the plaintiff to perform his part of the contract. The result of the discussion aforesaid is that the plaintiff was not entitled to relief in the suit and that the lower appellate Court has misdirected itself in decreeing specific performance of the agreement dated June 15, 1967. The decree cannot be sustained. The appeal deserves to be and is allowed. The decree of the lower appellate Court is set aside and the plaintiff's suit is dis missed. The plaintiff would however, be entitled to recover back the amount of Rs. 1375/- paid by him to the first defendant from the surviving appellants. In addition, the plaintiff will be entitled to his costs of this Court as well from the defendants because the appellants have succeeded on a plea raised for the first time in this Court. The certified copy of the plaint which has been shown by the learned counsel for the appellant to the Court, shall form part of the record, of the case. .