JUDHISTIR DEBNATH Vs. RAMESH CHANDRA NATH

JUDGEMENT

(1.) This Second Appeal has been preferred against the judgment and decree dated 22-7-82 passed by the Assistant District Judge, No. 2, Cachar, Silchar in Title Appeal No. 35/1980 upholding the judgment and decree dated 15-5-80 passed by the Munsiff, Hailakandi in Title Suit No. 53/78.

(2.) The respondents as plaintiff filed the above mentioned title suit for specific performance of the agreement executed by the defendants in favour of the plaintiff for sale of the land described in the schedule of theplaint. The plaintiff's case is that defendant No. 1 agreed to sell the suit holding at Rs. 3,500/- to the predecessor of the plaintiff late Kalikumar Debnath executed a baynanama on 7-5-76. As per terms of the baynanama defendant No. 1 had to execute a sale deed on receipt of the balance sum within a period of two years. The predecessor of the plaintiffs accordingly demanded execution of the 'Keola' within the stipulated period but the defendant No. 1 declined to comply and so the plaintiff filed the suit for specific performance of the contract by executing the sale deed relating to the suit land and for delivery of khas possession thereon. In a concurrent finding the courts below, after appreciation of the evidence on record and point agitated by the appellant is that being a case for specific performance the suit has to conform the requirements prescribed in Forms 47 and 48 of the first schedule of the C.P.C. Clause 2 and 3 of Form 47 gives guidelines to a plaint for specific performance which is as follows :-

(3.) Mr. A. M. Mazumdar, learned counsel for the appellant insists that nowhere in the plaint or in the evidence of the P.Ws. these two Form Nos. 47 and 48 have been complied with and therefore the suit is not maintainable and liable to be dismissed for non compliance of the mandatory provision of the C.P.C. This submission of the learned counsel leads this Court to go through the entire records of the Courts below. From reading of the plaint it appears that in paras 3 and 4 of the plaint, the requirements stated in Form 47, C.P.C. has been complied with. In Para 3 of the plaint it is categorically stated that after the completion of two years from execution of the agreement for sale the plaintiff after collecting the money approached the defendant appellant to execute the sale deed and register the same and in spite of repeated demands the appellant defendants refused to do so and finding no other way the predecessor of the plaintiff respondents sent notice (Ext-6) by registered post on 18-3-78. In the registered demand letter the defendants were asked to present themselves in the office of the Sub-registrar, Hailakandi on 3-4-78 to accept the remainder amount and to execute the sale deed. This notice by registered A/D post was refused by the defandants on 20-3-78 but they were not present as asked by the letter; instead of that (they) replied the notice. In para 4 of the plaint it is further stated that the predecessor of plaintiff respondent on the date fixed, i.e. on 3-4-78 was waiting from 10.30 a.m. to 4.30 p.m. but as the defendant was not present, a receipt was got written by the plaintiff as the defendant did not execute the sale deed by which appellant was at loss and to get the sale deed executed and get the possession of the disputed land he filed the suit accordingly. On perusal of evidence on record it appeals that all the witnesses supported the case as disclosed in the plaint regarding the eagerness/intention, promptness to pay the outstanding amount and get the sale deed executed. In view of the above discussion it cannot be said that the plaintiff did not plead either in the complaint or at any subsequent stage and in the evidence that he was not ready and willing to perform the agreement complained in the plaint. The suit for specific performance has to conform all the requirements as prescribed in Form 47 and 48 of the first schedule of C.P.C. In the suit for specific performance it is incumbent on the plaintiff not only to set out the agreement on the basis of which he had sued; he further must be specific that he had applied to the defendant specifically to perform the agreement but the defendant did not do so, in spite of plaintiff's readiness to pay the outstanding amount.