ABDUL MAZEED Vs. TEK CHAND

JUDGEMENT

(1.) S. K. Phaujdar, J. This appeal is directed against the concurrent decisions of the trial court and the first appellate court against the appellant in a suit for specific performance. Original Suit No. 802 of 1992 was filed by the present respondent for specific performance of a contract of sale dated 18-5-1992. The respondent accepted the contract and also service of notice upon him asking him to execute the sale deed, but it was stated that he had taken a loan from the Punjab National Bank (PNB, in short) and had mortgaged the suit property to secure that loan and proceedings for realisation of that loan were pending against him. It was further stated that the agreement with the plaintiff was for sale of the land at a price of Rs. 1,00,000 and not for Rs. 50,000 as alleged. It was also stated that the plaintiff was never ready and willing to perform the essential terms of the contract which were to be performed by him. The trial court decreed the suit believing the plaintiffs story and directed the defendant to register the deed in terms of the contract dated 18-5-1992 on receipt of Rs. 25,000 that was due. This decree was recorded by the Vth Addl. Civil Judge, Meerut, on 26-10-1994.

(2.) AN appeal was preferred in Civil Appeal No. 155 of 1994 and was dismissed by the VIIIth Addl. Distt. Judge, Meerut, on 22-12-1995 conforming all the findings of the trial Judge.

(3.) THE learned counsel for the respondent read out the plaint and stated that although in paragraph 6 of the plaint the word 'tayyar' (meaning, 'ready') was used and there was absence of the term 'ichchuk' (willing), the same could be inferred from the averments made in paragraphs 4 and 5 of the plaint and it was submitted that the use of the particular word "willing" was never intended by law, rather there were consistent decisions that this willingness is to be inferred from the averments made in the plaint although the actual term 'willing' may not be used. Reliance was placed OB a decision of the Supreme Court as reported in JT1996 (6) at page 309. It was a case where the respondent had pleaded his willingness and readiness to pay the amount, the Supreme Court held that this plea was sufficient and if was not necessary that the respondent should have with him ready cash to meet his part of the contract. This case-law, in my view, does not touch the controversy now raised regarding actual use of "the term 'willing' in the plaint averments. Reliance was placed on a decision of the Allahabad High Court in the case of Anwarul Haq v. Nizamuddin, AIR 1984 All 136. This very question which is now posed before this Court was also raised in the case of Anwarul Haq. It was a suit for specific performance of a contract. Regarding readiness and willingness of the plaintiff there was averment in the plaint but there was no literal compliance to the language in Forms 47 and 48 of Appendix A of the CPC. It was held that literal compliance was not imperative. THE substantive provision in Section 16 (c) did not insist upon any particular set of words to be used and the averments must in substance indicate the continuous readiness and willingness on the part of the person suing. Almost the same interpretation of Section 16 (c) was given in another judgment of the Allahabad High Court as reported in AIR 1985 All 223. It was held herein that the law did not insist upon any particular language or specific form in which the averment as to the plaintiffs willingness and readiness is or ought to be made. It was held that the language was not that important, rather the crucial matter was the totality of the averments made in the plaint which must indicate the readiness and willingness of the plaintiff, even though by necessary inference. In a Kerala High Court decision also this particular question came up for consideration, as reported in AIR 1991 Kerala 1. It was a suit for specific performance. THEre was an averment in the plaint that the plaintiff was always 'ready' to perform his part of the contract and the expression 'willing' was not used. It was held that absence of the expression 'willing' was not vital on the basis of the pleading as a whole and the conduct of the plaintiff and the court held that the word 'ready' meant willingness.