SAGAR MAL Vs. ABDUL HAMEED

JUDGEMENT

(1.) The present second appeal Ins been filed by the purchaser-defendant-appellant. The plaintiff- respondent filed a suit for specific performance against the appellant and one Shairullah Khan alleging that Shairullah Khan had agreed to sell the disputed plots No 65-A and 65-B, total area 2. 57 acres for Rs. 1600/-within 15 days of grant of permission of the Consolidation authorities. The agreement was executed on 30-7-1964. Subse quently, the permission was obtained by the defendant No. 2, Shiirullah Khan, from the Settlement Officer, Consolidation, for sale of the disputed plots, on 22-10-1964. According to the plaintiff, the defendant Shairullih Khan executed the sledded in favour of the defendant-appellant Sagar Mil for Rs. 2,000/-on 4-1-1965. On 5th April, 1965. the plaintiff gave a notice to the defendants about the sale and filed the instant suit on 20th May, 1965. The suit was dismissed by the trial Court but it has bean decreed by the lover appellate Court. The lower appellate Court gave two findings. The first finding was that Sagar Mal had notice of the agreement of the sale with the defendant. That finding is based on oral evidence and, therefore being a finding of fact, I do not think it expedient to enter the question. The second argument raised by the learned counsel for the appellant was based on Section 16 (c) of the Specific Relief Act (hers\lifter referred to as the 'act' for the sake of brevity ). He relied on a Division Bench case Mohamood Khan and another v. Ayub Khan and others A. I. R. 1978 All. 463. That case considered all the previous cases and relying upon the cases of various High Courts and the Sup reme Court, held that in absence of an averment in the plaint that the plaintiff was always willing and ready to perform his part of contract, the suit for Specific performance had to be dismissed That principle is also disputed by the learned counsel for the respondent Sri R. H. Zaidi. The learned counsel for the respondent raised three points in reply to the principle laid do not at the case aforesaid. His first argument was that the plea of non-maintainability of suit due to non-compliance of Section 16 (c) of the Act has not been raised in the written statement or in the Courts below or even in the grounds of appeal b fore this Court. It is true? that the question has not been raised in the Courts below or in the memorandum of appeal specifically. However the similar circumstances went involved in the case of in ahmood Khan (Supra ). In that case as well the question of non-maintain ability of the suit was not raised earlier. However Section 1 (c) of the said Act is a bar to the enforcement of the specific performance of a contract and that, being a pure question of law, can be raised in the present second appeal as well. It rather takes away the jurisdiction of the Court to grant a decree in absence of such an averment. The second objection of the learned counsel was that the averment in the plaint made in the paragraphs 3, 10 and II w re sufficient compliance of Section 16 (c) of the Act. I have looked to the paragraphs from the point itself. Paragraph 3 mentions that the defendant No I, Shairullah Khan, realised Rs. 300/-as part of the earnest money and gave a receipt and agreed that after obtaining the required permission, he will execute the sale-deed within 15 days. It was further averred that the plaintiff has been constantly requesting the defendant No. 1. The defendant No. 1 always put him off that he has not yet obtained the required permission and legal proceedings were going on. Paragraph 10 of the point mention that the sale-deed dated 4th January, 1985, in favour of the defendant No. 2 was illegal and ineffective and the plaintiff had a right to get the sale-deed executed in his flavor in accord ance with the agreement executed by the defend No. I. Therefore, the plain tiff gave the notice to the defendant on 5th April, 1965, and demanded that they should execute a sale-deed in his favour. The defendant No. 1 refused the notice all going that his name was incorrectly mentioned the rein and the defen dant No. 2 have a wrong reply to the plaintiff. The paragraph 11 is the paragraph relating to the cause of action and it mentions that the cases of action arose on 13th July, 1964, when the agreement was executed and 4th January, 1964 (1965) when the sale-de d was executed in favour of the defendant No. 2 at. . . " within jurisdiction of this Court. To my mind, none of these paragraphs can be read as making an averment that the plaintiff was always ready and willing to perform his part of the contract. On the other hand, they suggest that the talks mentioned in the paragraph 3 took place before the grant of permission, that is 22nd October, 1964. It has com: in evidence and the lower appellate Court has also believed it that the plaintiff came to know that the defendant No. 2 was going to get the sale-deed executed in his favour from the defendant No. 1 before the sale in favour of the defendant No. 2 was made. Under these circumstances had the plaintiff been ready and willing to perform his part of contract, he should have given notice or taken some legal proceedings before 4th January, 1965, that is when he came to know that the defendant No. 2 was going to purchase the land from the defendant No. 1. No such thing was done and, therefore, it cannot be said that the averments wet-; sufficient to show that the plaintiff was ready and willing perform his part of contract. The leaned counsel for the respondent has ruled upon an unreported decision of this Court dated 10th August, 1977: Dhoomi Mim v. Smt. Bano Begum: in second appeal No. 537 of 1969. In that case the principle that the plaint should contain the averment required by Section 16 (c) of the said Act was accepted. It was, however, held on the facts of that case that the averments made therein were sufficient to show that the plaintiff was always ready and- willing to per form his part of contract. In that case, paragraphs 4, 5 and 6 of the plaint were relied upon. Paragraph 4 of that suit related to a registered notice having given on 22nd September, 1965, requiring the defendant to come to the Registration office on 18-10-1965 for executing the sale-deed. That notice was returned by the defendant. In paragraph 5, it was mentioned that the plaintiff thereupon sent a telegram and an express delivery better under certifi cate of posting o. i 6-10-1965 asking the defendant to attend the Registration office on 12-10-1965. This letter and telegram wire received by the defendant. The plaintiff and her husband had been waiting at the Registration office and ultimately returned in the evening. Paragraph No. 6 mentions that the plaintiff give another opportunity to the d - fondant to execute the sale-ded by another registered notice dated 18-10-1965 to attend the registration office on 30th October, 1965. This notice; was also served on the defendant and the plaintiff went to the Registration office with the money but had to return in the evening. All tikes paragraphs show how eager the plaintiff was to get the sale-deed executed in her favour and she was taking constant steps to get the sale-deed executed by the defendant. However, in the instant case, we fetid that after the execution of the agreement on 30th July, 1964, when the permission was obtained by the vendor to execute the sale-deed in favour of the appellant. Now only that, as I have already pointed out, the evidence shows that he came to know that the defendant No. I was going to sell the disputed property in favour of the defendant NJ. 2 before the defendant No. 2 purchased the same. The sale- deed in favour of the defendant No. 2 was admittedly executed on 4th January, 1965. Had the plaintiff been ready and willing to perform his part of the contract immediately, he could have got a notice issued before the sale-deed was executed and warned the defendant No. 2 not to pursues the disputed property as he had prior agreement of purchase. The only step that was taken by the plaintiff after the execution was the notices issued to the defendants in April, 1965. This conduct and the averment of the plaintiff taken together cannot mean, by any stretch of imagination, that the plaintiff was ready and willing to perform his part of contract. The third point raised by the learned counsel for the respondent was that it has been found by the Court below that the plaintiff-appellant was always ready and willing to get the sale-deed executed in his favour. Such a finding, I feel, is without jurisdiction. This plea was never raised by the plaintiff in the plaint and even if there was any evidence on that question which was not subject-matter of any plea or issue, that could not be seen by the Court below. In the case of Maiammad Khan (supra), in paragraph 13 a similar posi tion had been discussed. In that case as well as it was found that the plaintiff has stated an his evidence that he was ready and willing to perform his part of contract. But, as there was no averment to that effect in the plaint, the evidence was not looked into. Under the circumstances, this argument of learned counsel for the respondent also fails. In the circumstances, the appeal of the defendant Sugar Mal is liable to succeed. The question no remains whether the plaintiff should get only Rs. 300/- which he had paid as earnest money to Shairullah Khan or he should get something beyond that. As the suit of the; plaintiff is failing on a technical ground, I foil that he should be entitled to damages as well. Section 14 of the said Act provides that where damages could be awarded, the specific performance of contract will not be specifically enforced. In my opinion, the plaintiff having contracted tie purchase the dispute d property for Rs 1601)/- and fie property, subsequently, sold for Rs. 2,000/-the plaintiff was entitled to damages under Section 14 (1) (b) of the Act. In the result, the appeal is allowed. The suit of the pointy dismissed and, in lieu thereof, it is decreed for Rs. 300/-, that is r turn of his earnest money and Rs. 400/- as damages, total Rs. 700/- This amount of 70)/- will be playable by Shairullah Khan defendant No. I, to the plaintiff. The decree for the same will be drawn up by the office. The parties are directed to bear their own costs. The plaintiff will also entitled to costs from defendant No. 1 Shairullah khan .