MANU/UC/0380/2013

Equivalent Citation: AIR2014Utr11, 2014(3)UC 1693

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Second Appeal No. 1335 of 2001
Decided On: 01.08.2013
Appellants: Mahendra Singh
Vs.
Respondent: Rahul Dev Shekhavat
Hon'ble Judges/Coram:
Prafulla C. Pant, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Lok Pal Singh and Nikhil Singhal
For Respondents/Defendant: Jitendra Chaudhary
JUDGMENT
Prafulla C. Pant, J.
1 . This second appeal, preferred under S. 100 of Code of Civil Procedure, 1908, is
directed against the judgment and decree dated 18-6-2001, passed by District Judge,
Nainital, in Civil Appeal No. 30 of 2000, whereby said Court has dismissed the
appeal, and affirmed the judgment and decree for specific performance of contract
passed by the trial Court (Addl. Civil Judge (Sr. Div.) Nainital) in Suit No. 86 of
1998. Heard learned counsel for the parties, and perused the lower Court record.
2. Brief facts of the case are that plaintiff filed Suit No. 86 of 1998 with the pleading
that defendant (present appellant) is Bhumidhar of plot/khasra No. 91m, measuring
0.809 Hct. (approximately 29 acres) situated in village Kalyanpur of Tehsil Kashipur.
It is further pleaded by the plaintiff that the defendant agreed to sell the aforesaid
land for ' 1,20,000/- out of which ' 1,00,000/- was paid in advance as part of
consideration, and ' 20,000/- were required to be paid at the time of the execution of
the sale deed. It is further pleaded in the plaint that a registered agreement dated 3-
6-1996 was executed between the parties, and the sale deed was to be executed by
25-5-1998. It is also averred by the plaintiff in the plaint that he was ready to get the
sale deed executed by making payment of ' 20,000/-. It is further pleaded that the
plaintiff requested the defendant several times to execute the sale deed but he
(defendant) avoided the execution. On this, the plaintiff got served the notice on the
defendant to appear on 25-5-1998 before the Sub-Registrar to execute the sale deed
but he (defendant) did not turn up. It is alleged that the plaintiff remained present in
the office of the Sub-Registrar from 10:00 a.m. to 5:00 p.m., to get executed the
sale deed. With these pleadings plaintiff sought relief of specific performance of
contract.
3 . The defendant contested the suit, and filed his written statement. He denied
having executed any agreement of sale. The defendant alleged that actually he took
loan of ' 60,000/- on interest @ 2% per month on 3-6-1996 from the plaintiff, and
returned amount of ' 65,000/- to him. The defendant denied that plaintiff was ready
and willing to perform his part of contract.

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4. On the basis of the pleadings of the parties following issues were framed by the
trial Court:--
(i) Whether the defendant executed the registered agreement dated 3-6-1996
in favour of the plaintiff as alleged in para 1 of the plaint for sale of his land?
If so, its effect?
(ii) Whether the plaintiff had and always willing and ready to perform his
part of contract?
(iii) Whether the transaction between the plaintiff and defendant was that of
a loan taken by the defendant from the plaintiff?
(iv) To what relief, if any, the plaintiff is entitled?
5 . Plaintiff adduced documentary evidence e.g. agreement, notice served on
defendant, and receipt of presence in the office of the Sub-Registrar. He also got
examined himself as RW. 1 and in support of his case got examined P.W. 2 Jaswant
Singh and RW. 3 Vinay Kumar (scribe of the deed). On behalf of the defendant
Mahendra Singh, got himself examined as D.W. 1 and in his support he got examined
D.W. 2 Wajir Singh.
6 . The trial Court after hearing the parties decided all the issues in favour of the
plaintiff, and decreed the suit for specific performance of contract. Aggrieved by said
judgment and decree dated 13-8-2000, passed by Civil Judge (Sr. Div.), Nainital, in
Suit No. 86 of 1998, the defendant filed Civil Appeal No. 30 of 2000, before District
Judge. Nainital. (Earlier Tehsil Kashipur was part of District Nainital) District Judge,
Nainital, after hearing the parties concurred with the view taken by the trial Court and
dismissed the appeal. Hence this second appeal.
7 . This second appeal was admitted by this Court on 29-4-2004, on following
substantial question of law mentioned in the memorandum of appeal:--
Whether oral evidence could be led to exclude the provisions of S. 92 of
Indian Evidence Act, 1872, especially when the execution of the disputed
agreement was challenged to be not intended and not to be acted upon and
the agreement being sham?
An additional substantial question of law was formulated by this Court on 15-
5-2013, which reads as under:--
Whether the Courts below have erred in law in decreeing the suit in
absence of pleading of willingness in suit of specific performance of
contract?
Answer to substantial questions of law
8 . There is concurrent finding of fact recorded by the two Courts below that the
defendant agreed to sale the land of Khasra No. 91 measuring 0.809 hct., situated in
Kalyanpur to the plaintiff for an amount ' 1,20,000/- out of which ' 1,00,000/- was
paid to the defendant as part of consideration, and agreement dated 3-6-1996 was
executed and registered. As such it cannot be said that the agreement in question
was sham. There is nothing on the record which shows that the plaintiff had given
any oral evidence against the contents of the written agreement. As such, there is no
violation of provision of S. 92 of Indian Evidence Act, 1872, in the present case.
9 . Learned counsel for the defendant/appellant mainly argued the appeal on the

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additional substantial question of law which pertains to the willingness on the part of
the plaintiff to get executed the sale deed. In this connection attention of this Court is
drawn to S. 16(c) of Specific Relief Act, 1963, and Form Nos. 47 and 48 mentioned
in Appendix 'A' of Code of Civil Procedure, 1908. Clause (c) of S. 16 of Specific Relief
Act, 1963, requires that a person who seeks specific performance of contract must
aver and prove that he has performed or has always been ready and willing to
perform the essential terms of the contract which are to be performed by him. Forms
47 and 48 of the Appendix 'A' of Code of Civil Procedure, contain a para stating that
the plaintiff had been and still ready and willing to perform his part of contract.
10. Referring the cases of Pukhraj D. Jain v. G Gopalkrishna MANU/SC/0364/2004 :
(2004) 7 SCC 251 : (AIR 2004 SC 3504); N.P. Thirugnanam v. Dr. R. Jagan Mohan
Rao MANU/SC/0025/1996 : (1995) 5 SCC 115 : (AIR 1996 SC 116) and Maan Kaur v.
Hartar Singh Sangha MANU/SC/0789/2010 : (2010) 10 SCC 512 : (2010 AIR SCW
6198) it is argued on behalf of the appellant that since the plaintiff has failed to aver
the willingness to perform his part of contract as such the Courts below have erred in
law in decreeing the suit for specific performance of contract.
1 1 . On the other hand, learned counsel for the plaintiff/respondent relied in the
cases of Aniglase Yohannan v. Ramlatha MANU/SC/0653/2005 : (2005) 7 SCC 534 :
(AIR 2005 SC 3503); Sugani v. Rameshwar Das MANU/SC/8106/2006 : (2006) 11
SCC page 587 : (AIR 2006 SC 2172); J.P. Builders v. A. Ramadas Rao
MANU/SC/0977/2010 : (2011) 1 SCC 429 : (AIR 2011 SC (Civ) 230) and Gurdial
Kaur v. Piara Singh, MANU/SC/7407/2008 : AIR 2008 SC 2019 and submitted that it
is the conduct of the party from which it has to be gathered as to whether it was
willing to perform his part of contract or not. It is also contended that there is no
straight-jacket wordings which constitute willingness.
12. To appreciate the rival contentions of the parties, this Court went through the
copy of the plaint on the record. In paragraph 3 of the plaint it has been stated by
the plaintiff that in terms of agreement dated 3-6-1996 the plaintiff was always ready
to pay remaining ' 20,000/- and from time to time requested the defendant to execute
the sale deed. In para 4 of the plaint it has been stated by the plaintiff that when the
defendant continued to avoid to execute the sale deed he (plaintiff) got sent a
registered notice to the defendant asking him to appear on 25-5-1998 before the
Sub-Registrar, Kashpur, to execute the sale deed but he (defendant) did not turn up,
and plaintiff remained there and obtained a receipt from the office of the Sub-
Registrar regarding his attendance.
13. No doubt 'readiness' and 'willingness' are two different expressions. 'Readiness'
generally refers to the capacity of the plaintiff (as a purchaser) to pay consideration
for specific performance of contract, and 'willingness' refers to his conduct in getting
executed the sale deed. In the present case, word 'willingness' is not mentioned in
the plaint but it is pleaded as well as proved that the plaintiff from time to time
continued to request the defendant to execute the sale deed after accepting remaining
' 20,000/-. Also it is proved that when defendant did not pay any heed, the plaintiff
gave notice to the defendant and remained present in the office of the Sub-Registrar
on the date for which the written notice was also sent to the defendant. Both the
Courts below after discussing the evidence found that from the oral and documentary
evidence it is proved on the record that the plaintiff had always been ready and
willing and still ready and willing to perform his part of contract. Said concurrent
finding of fact is neither perverse nor against the weight of the evidence on record.
14. Therefore, this Court is of the view that the compliance of Cl. (c) of S. 16 of
Specific Relief Act, 1963, and the language required in the plaint is substantially

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complied with, as such the Courts below have not erred in law in decreeing the suit
for specific performance of the contract. Accordingly, both the substantial questions
of law stand answered.
15. Learned counsel for the plaintiff/respondent during argument stated that during
the pendency of this appeal the defendant has already executed the sale deed on 8-4-
2004, which was said to have been registered on 12-4-2004. Learned counsel for the
respondent (plaintiff) further told the Court orally that possession has also been
given to the plaintiff and mutation has also taken place in his favour. (But learned
counsel for the appellant pressed that the appeal be heard and decided on merits.
Accordingly the appeal was heard on merits).
16. For the reasons as discussed in an answer to substantial questions of law, this
appeal is liable to be dismissed. Accordingly, the Second Appeal No. 1335 of 2001 is
hereby dismissed. However, no order as to costs.
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