UNITED PIONEER SOCIETY REPT Vs. CHAND BIBI

JUDGEMENT

(1.) The suit of the unsuccessful plaintiffs/appellants for specific performance of the agreement, Ex. A-1 dated December 3, 1977, met with dismissal. Their claim is that the respondents contracted to sell 2,593 sq. yards at.the rate of Rs.20/- per sq. yard and received Rs. 10,995/- on different dates through cheques. One of the covenants is that the respondents have to obtain exemption from the Urban Land (Ceiling & Regulation) Act, 1976 (for short, "the Ceiling Act") but committed breach thereof. The appellants filed on December 16,1977 the petition under Ex.A-13 seeking permission on whrch the Competent Authority had taken steps, but the respondents did not co-operate with them to grant exemption There fore they sought for a decree to direct the respondents to submit proper application for grant of exemption and on grant thereof, the sale deed is to be executed. The respondents 1 to 3 filed a joint written statement and Despondent No.4 filed a separate written statement. Their main plea is that Ex A-1 agreement is a sham and nominal one never intended to be acted upon. The appellants assured them that they would get exemption from the Government and thereafter, the prices would be settled at the prevailing rates. Thereby it is not a concluding contract. Ex.A-1 is also inoperative and void since it is in violation of the provisions of the Ceiling Act. There is no consensus ad idem between the parties. The prices have been abnormally increased subsequently. The appellants awaited for three years without getting the sale-deed executed. There is no part of their obligation but of the appellants to approach the ceiling authorities and to obtain exemption but was not done. Thereby, they are disentitled to the relief of specific performance. Respondent No. 4 raised a special plea that on the date of her marriage, when "Manjah Ceremony" was being celebrated, her brother brought a document and took her signature and she signed it without going through its contents. She is a medical student and after completion of her studies, she went to Iran and after return, she came to know on July 12, 1981 that the signature obtained was on the agreement; as such, she is not bound by the agreement. No consideration has been passed under the agreement, to her.

(2.) The trial Court framed appropriate issues; on adduction of evidence and consideration thereof, it" held that the agreement is true, valid and for consideration; not a nominal document and is binding on the respondents. It has also held that there is no delay in getting the sale deed executed. However, it refused to grant the relief holding that the grant of exemption under Sec.20 of the Ceiling Act is not an automatic one. It requires cumbersome procedure. The appellants did not aver in the plaint that they are ready and willing to perform their part of the contract as enjoined in Section 16 (c) of the Specific Relief Act (47 of 1963), for short, "the Act". Their belated application for amendment of the plaint was also dismissed. It is inequitable to grant the relief, but decree for refund of earnest money was made.

(3.) Sri M B Rama Sarma, learned counsel for the appellants, hascontended that the trial Court, having negatived all the defences of the respondents, ought to have decreed the suit. The appellants have taken all the steps to get exemption under Section 20 of the Ceiling Act. Nothing more can be done except an order being passed by the Government provided the respondents co-openate with them. The relief has been sought for only due to their non-co-operation which would have been granted directing the respondents to secure- exemption and, thereafter, the sale deed would have got executed. The omission to plead the readiness and willingness on the part of the appellants is only due to the inadvertence of his Counterpart in the Court below. It is stated in Ex. A-2 suit notice of their readiness and willingness. Nacassary evidence in this regard has been on record. The respondents neitner pleaded in this regard in 'their written statements nor an issue has been raised. For the first time, the appellants were put on notice during cross-examination when the first appellant's secretary was examined as P W I. Immediately thereafter, an application for amendment of the plaint was filed and on dismissal, C R P No 584/84 has already been filed. Independently, the appellants filed CMP No 5052/84 in this Court seeking permission to amend the plaint. In an appropriate case, Court has discretion to permit the parties to amend the pleadings, to meet the ends of justice. The Court below did not adopt this course; therefore, it committed serious error of jurisdiction. In support thereof, he relied on Narayan, Nagorao Vs. Amrit Haribhau (1) AIR 1957 Bombay 241. and also a passage in Pollack Mulla's Indian CONTRACT ACT, 1872 and Specific Relief Acts, 9th Edition, at page 855 and Ramanand Vs, Bhonri (2) AIR 1978 Pun. & Har. 291.