JAMILA KHATOON Vs. RAM NIWAS GUPTA

JUDGEMENT

(1.) Plaintiff-respondent filed suit which was numbered as suit No. 123/78 in the Court of Civil Judge, Sharanpur. The suit was for specific performance of an agreement to sell the disputed land and that was decreed on 6-8-1980.

(2.) In brief, the case of the plaintiff respondent was that the defendant appellant agreed to sell the property in dispute for a consideration of Rs. 31,350.00 under the agreement dated 10-1-1975. The agreement was duly registered and the amount of Rs. 5000.00 was alleged to have been paid as part of the sale consideration. It was agreed between them that the defendant would obtain permission to sell at her own expenses from the competent authority within six months and after obtaining the same she would give written notice to the plaintiff fixing five months time to get the deed executed. The plaintiff has always been in possession of funds to pay the balance of sale consideration and bear the expenses of getting the same deed executed and registered and plaintiffhad that capacity even on the date of filing of the suit and he was always ready and willing to perform his part of contract under the agreement to purchase the disputed land and was also willing on the date of filing of the suit. The defendant refused to execute the sale deed on accepting the balance consideration and so he filed the suit which was decreed. Oral and documentary evidences had been adduced by the parties in this appeal. The judgment and decree was challenged mainly on two grounds.

(3.) It was argued that to get a decree for specific performance of the contract, plaintiff must prove both willingness and readiness but the instant suit was filed wherein plaintiff failed to prove willingness and that there was a case of readiness only so plaintiff was not entitled to get a decree for specific performance of contract. It was further contended that since the plaintiff claimed damages and the suit was filed within the period of limitation so the court should have granted alternative relief of compensation under Section 21(2) of the Specific Relief Act. It has been contended that in no way it has been averred that the plaintiff was willing and there was no evidence that plaintiff was willing to fulfil his part of contract. There was an agreement that he was ready to pay the money to get the sale deed executed. In the notice given by the defendant, plaintiff did not mention that he was willing to purchase and was ready to pay the balance amount and to get the sale deed executed in his favour. It has been further contended that since the plaintiff made a prayer for damages and also the prayer for refund of the earnes money, the learned court was not justified in allowing the suit for specific performance of contract. Where there is no prayer for refund of the earnest money or compensation in that event the court may direct the plaintiff to amend the plaint for incorporating alternative prayer, but in the instant case there was such a prayer for refund of earnest money together with damages, so the learned court below erred in law in not allowing alternative prayer. Moreover, the plaintiff made inordinate delay in filing the suit. As the price of the land was soring high granting of alternative relief was more suitable. However, the suit was not barred by limitation but definitely it was filed after long delay, so, the court was not justified in decreeing the suit for specific performance of contract. In this regard, learned counsel for appellant referred the following decisions before me as reported in AIR 1 996 SC 2150 : (1996 AIR SCW 2606), 1996 SCC 423 (sic) wherein it has been held that readiness and willingness of plaintiff to perform his part of contract must be proved for getting a decree for specific performance of contract, otherwise, he may be granted an alternative relief, if prayed for. Learned Advocate for the appellant has referred another decision reported in 1997 (3) SCC 1 : (AIR 1997 SC 1751), K.S. Vidyanadan v. Vairavan, wherein the Hon'ble Apex Court held suit was filed after long lapse of time so the decree for specific of contract may not be granted but alternative relief may be granted. Learned counsel for the appellant cited another decision as reported in AIR 1996 SC 331 (sic).