GURDIAL KAUR (D) THROUGH LRS. v. PIARA SINGH (D) THROUGH LRS

Citation: [2008] 5 S.C.R. 163

Court: Supreme Court of India

Bench: S.B. SINHA, V.S. SIRPURKAR

Case summary

GURDIAL KAUR (D) THROUGH LRS. v. PIARA SINGH (D) THROUGH LRS.pdf

Judgment text

[2008] 5 S. C. R. 163 GURDIAL KAUR (D) THROUGH LRS. V. PIARA SINGH (D) THROUGH LRS. (Civil Appeal No. 2005 of 2008) MARCH 14, 2008 [S. B. SINHA AND. V. S. SIRPURKAR, JJ. ] Specific Relief Act, 1963 - ss. 12, 16 ( c ), 20 and 28 - Agreement of sale - Failure to execute sale deed - Suit for specific performance of contract - Subsequent change in the revenue survey numbers in respect of the land in question - Trial court denying decree ofspecific performance holding that vendee failed to comply with requirements of s.

16 (c) having failed to state that he was always ready and willing - However directed refund of the advance amount paid by the vendee - First appellate court denying the decree of specific ~· performance on the ground that there was failure to show readiness and willingness in respect of the changed revenue survey numbers - High Court in second appeal decreeing the suit - On appeal, held: Decree of specific performance is liable to be passed in respect of the land which formed subject matter of the original agreement - Change in revenue survey numbers in respect ofthose lands would not bring the contract of sale to an end as the subject matter of the agreement substantially remained the same - In the facts of the case vendee has fulfilled the critirea of readiness and willingness - ~ Further avermentlproof regarding readiness and willingness after change in survey numbers not required, to the extent subject matter was same - In the facts of the case direction to ' the vendee to pay a further sum to the vendor - Constitution of India, 1950 - Articles 136 and 142 - Code of Civil Procedure, 1908 - s.

100 (5). Predecessor in interest of the appellants-defendants entered into an agreement of sale in respect of the land in question in favour of the respondent. Respondent paid >half of the consideration amount on the same day. The deed of sale was required to be registered. Respondent went to the Registration Office but the vendor did not turn up. Thereafter the vendor died. Respondent filed suit for specific performance of the sale agreement. In the alternative he prayed for return of the advance amount with interest. The suit was decreed. In appeal thereagainst, appellate court remanded the case to the trial court for fresh consideration. Thereafter, respondent-plaintiff filed the applications seeking amendment of the area of the land. Appellants-defendants also filed a suit against the respondent-plaintiff seeking recovery of possession.

Trial court rnfused to grant decree for specific performance of agreement of sale, but decreed the suit granting the alternative remedy sought by the respondentplaintiff. Trial court held that respondent-plaintiff has failed to satisfy the requirement u/s 16 (c) of specific Performance Act regarding readiness and willingness on the part of the vendee as he failed to aver that he was always willing and ready to perform. First appellate Court disagreed with the finding regarding readiness and willingness, but held that contract of sale came to an end on account of change of Khasra Nos. of the Land as he failed to show his readiness and willingness in respect thereof. High court allowed the second appeals. In appeal to this court, appellant-defendant contended that the questions formulated could not be saiJ to be substantial questions of law; and that decree could not have been passed in favour of the respondent-plaintiff as the subject matter of the agreement had altered.

Partly allowing the appeal, the Court HELD: 1. 1 A suit for specific performance of contract provides for a discretionary remedy. The Court in terms '" of Section 20 of Specific ReliefAct, 1963, may for sufficient (D) THROUGH LRS. and cogent reasons refuse to grant a decree for specific performance of contract. Like any other suit, the Court in terms of Order 7 Rule 7 CPC may, however, take into consideration the subsequent events including the change in the revenue ·survey numbers in respect of particular land. In other words, if the land in suit remains the same which was the subject matter of an Agreement of Sale, a decree for specific performance can be granted. The m~tter, however, would be different where having regard to the consolidation or any other proceedings, the subject matter of land itself changes resulting in substantive change in the original agreement. [Para 13] [174-D-G] 1.

2 The appellants did not spell out as to what were his objections in regard to amendment of plaint. When the second application for amendment of plaint was filed, no objection thereto was raised. Allegedly, in the suit for recovery of possession, the appellants mentioned the same description of land. How despite alteration in the description of the land in respect of a part of the suit premises, the respondent came into possession, if at all, is not known. The plaintiff/respondent did not bring on records any material to show that owing to consolidation proceedings or otherwise, there had been a change in the suit land in the sense that some other lands had been allotted to the predecessor of the appellant instead and in place of the lands in suits. The plaintiff/respondent was categorical in his statement as to why the amendment had to be brought about, but neither the same was opposed nor any amended written statement/additional written statement was filed.

Except the two plots, identity of the rest of the plots remained the same. (Paras 14, 15 16 and 17] [176-A, C, D, E, FJ 2. 1 The rigours of Section 16(c) of the Act, however, are not such which would for all intent and purport to be strictly construed. It is, however, trite that, even for the said purpose, the entirety of the plaint must be taken into consideration. If upein reading the plaint in its entirety, the Court comes to thE! conclusion that for all intent and purport, the requirements of Section 16(c) stood complied with, no exception thereto can be taken. [Paras 19 and 20) [178-E, F, G] 2. 2 In the instant case, the plaintiff has not only expressed his readiness to purchase the land, his willingness to do so can be culled out from other averments made in the plaint as and in particular the one ·C where he had stated that he had gone to the Registration Office for getting th•:! deed of sale executed and registered but it was the defendant, who did not turn up thereafter.

He has also fulfill1ed the criteria of his readiness and willingness to perform his part of the contract as not only he had paid half of the consideration amount on the date of the execution of the agreement, he had deposited a balance sum on the date of presentation of the plaint. Thus, the Court of First Appeal was right in holding that he was ready and willing to perform his part of the contract. [Para 20) [178-G, H; 179-A, B, CJ 2. 3 The Court of First Appeal, however, committed a serious error insofar as it failed to take into consideration that the identity 01' a part of the land being the same, it was not necessary to make any further averment or proof that he had been ready and willing to perform his part of • the contract in r1espect of the subject matter of the agreement. Readiness and willingness to perform one's part of the contraclt must be confined to the subject matter thereof. If subject matter of the suit remained the same only because Khewat Nos. or Khatauni Nos.

changed, the same ipso facto would not change. To the extent the subject matter of the agreement remains the same, a suit for specific performance of the contract can be decreed. [Para 21) [179-D, E, F] (D) THROUGH LRS. Ramakrishna Pillai and Anr. v. Muhammed Kunju and ·~ -1 Ors. 2008 (2) SCALE 696 - referred to. 3. 1 Purported substantial questions of law as framed stricto sensu do not answer the description as contained in sub-Section (5) of Section 100 of the Code of Civil Procedure. Proper substantial question which should _,. .. have been framed having regard to the admitted position is as to whether the contract of sale came to an end only on account of change of Khasra Nos. , although the subject matter of the agreement substantially remained the same. [Para 18) [176-G, H; 177-A] 3. 2 If on the admitted fact, it is found that at least substantial portion of the land remained the same, there does not exist any bar in granting a decree in respect of part of the suit property.

For the said purpose, even Section 12 of the Specific Relief Act would not stand as a bar. If a decree for specific performance cannot be granted -t in respect of the entirety, an option in terms thereof has to- be exercised. [ Para 19) [177-B, 178-D] 4. Respondent, furthermore has all along been in possession of the major portion of the land since a long time. He is said to have made improvements on the land. It would be not, thus, equitable to deprive him from possession at least from that portion of the land which was the subject matter of the original agreement. [Para 21) [179-F, G] ~ 5. This Court in exercise of its jurisdiction under Article 136 of the Constitution of India would refuse to interfere with the judgment of the High Court, save and except to the extent the decree passed in respect of two new Khasra Nos. namely 63-M/13/2(6-8) and 53M/13/1 (0- 16). [Para 23) [180-E, F] 6. However, having regard to the fact that the plaintiff/ respondent No.

1 was denied the decree for specific performance of contract by two courts, although he had ;- •• been in possession of the lands, in question from 1964, this Court in exercise of its discretionary jurisdiction under Article 142 of the Constitution of India as also Section 28 of the Specific Relie! f Act directs him to pay a further sum of Rs. 30,000/- to the appellant. [Para 24] [180-G; 181-A] ,, .. _ CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2005 of 2008. From the final Judgment and Order dated 09. 08. 2006 of the High Court of Punjab and Haryana at Chandigarh in Regular Second Appeal Nos. 1474 & 1475 of 1980. L. Nageswara l= -. ,,- 2. Whether the plaintiff was ready and willing to perform his part of the contract? 3. Whether the plaintiff is entitled to a decree for specific performance of agreement in the facts and circumstances of the case? The said appeals were allowed. 11. Mr. L.

Nageswara Rao, the learned senior counsel appearing on behalf of the appellant would submit that none of the questions aforementioned give rise to any substantial question of law. The third purported question according to the .... learned counsel is not at all a substantial question of law. The first question according to the learned counsel is essentially a question of fact. In regard to the second question, it was submitted that although this Court in some decisions opined that it would be essentially a question of fact but in some decisions point out that it would be a mixed question of law and fact and thus, in any event, the same being not a substantial question of law, the impugned judgment cannot be sustained. ... _ It was furthermore urged that the High Court committed a serious error as a decree could not have been passed in favour of the first respondent as the subject matter of the agreement had altered. 12. Mr.

Paramjit Singh Patwalia, the learned senior counsel appearing on behalf of the respondent, on the other hand, submitted that in view of the change in the Khasra Nos. or ~ Khewat Nos. in the revenue records, an amendment had to be brought about. The amendment having taken effect from the date A' ~ of the institution of the suit, the judgment of the High Court should not be interfered with. It was urged that the learned Trial Judge as also the first Appe~llate Court having rejected the plea of the appellants as regards the genuineness of the agreement dated 5. 10. 1964 and/or purported execution of the Will by Gurcharan Singh, it is not a fit case where this Court should exercise its discretionary jurisdiction under Article 136 of the Constitution "" of India.

It was submitted that escalation in price by itself may also not be a sufficient ground for interfering with the impugned judgment particularly when the respondent had been in possession of the said land for a long time and had made improvements then~upon. 13. A suit for specific performance of contract provides for a discretionary remedy. The Court in terms of Section 20 of the said Act may for sufficient and cogent reasons refuse to grant a decree for specific performance of contract. In a case of this -,.. nature, the Court essentially would be concerned with the identity of the land which was the subject matter of agreement. Like any other suit, the Court in terms of Order 7 Rule 7 ofthe Code of Civil Procedure may, however, take into consideration the subsequent events including the change in the revenue survey numbers in respect of a particular land. In other words, if the land in suit remains the same which was the subject matter of an Agreement of Sale, a decree for specific.

performance can ·be granted. ' The matter, however, would be different where having ..... regard to the consolidation or any other proceedings, the subject matter of land itself changes resulting in substantive change in the original agreiement. In terms of Section 16(c) of the Specific Relief Act , the Court must arrive at a finding that the plaintiff had not only averred, but also established readiness and willingness on his part to perform his part of the contract. In this I .... case, the appellant paid a sum of Rs. 7,0001- on the date of the execution of the agreement. It has been stated before us which ' . , .... , has not been denied or disputed that at the time of filing of the suit itself, the first respondent deposited the balance amount of Rs. 8,000/- in the Court. The original description of the suit land was as under:- "Suit for specific performance of contract of sale in respect '~ ... ,,, of the land measuring 98 Kls 19 marlas, Khewat No.

101, 102, 159, 38, 85, Khatauni Nos. 118, 119, 224, 220, 228, 45, 100, Khasra Nos. 63 7(8-0) 8(8-0) 9(8-0) 63 13/1(1-2) 14(8-0) 17/1(7-7) 6/3 (0-16) 5/1 (5-0) 6/2 (5-0) -I 62 14(8-0) 7/2(0-13 3/2(2-0) 4(8-0) 7/1 (7-7) 55 56 63 . , 20/1(3-16) 13/1 (1-10) 10(8-0) 18(8-0)" However, upon amendment, the description of the suit lands as they stand now are as under:- "Suit for specific performance of agreement of sale dated 5. 10. 64, that the defendant Kirandip Kaur or in the alternative all the defendants should execute a sale deed in resp~ct of land measuring 94-kanals 3 marlas, khewat No. 47, khatoni Nos. 76 min, 76, 79, lilla Nos: Rect. 58 Rect. 56 Rect. 62 ..... 13/1 (0-16) 13(1(1-10), 7/1/2(2-0), 7/1/3(3-5) Rect. 62 3/2(2-0) 4/1 (2-8) 7/2(0-13) 14(8-0), 5/1 (5-0) 6/2 (5-8) Rect 65 6/5(0-16) 7(8-0) 9(8-0) 10/1 (6-12) 13/2 (6-10) 14(8-0) ~-"( .. 17/1 (7-17) 18(8-0)" ,... ,, ~ 14.

We have noticed hereinbefore that the appellants did not spell out as to what were his objections in regard to amendment of plaint. It was merely stated that "other amendments are opposed". In response to the application for amendment it was stated; "the application for amendments is opposed, it is belated '1" and after thou£1ht" 15. It is therefore, evident that Gurcharan Singh was given two new plots which were not the subject matter of the original agreement. The are! a also diminished. When the second application for amendment of plaint was filed, no objection thereto was raised. Allegedly, in the suit for recovery of possession, the appellants mentioned the same description of land. How despite alteration in the description of the land in respect of a part of the suit premises, the respondent came into possession, if at all, is not known. r 16.

We are not oblivious of the findings of the learned Court or the First Appellate Court that the plaintiff/respondent did not bring on records any material to show that owing to consolidation proceedings or otherwise, there had been a change in the suit land in the sense that some other lands had been allotted to Gurcharan Singh in stead and in place of the lands in suits. 17. We hav'e noticed hereinbefore that the plaintiff/ respondent was categorical in his statement as to why the amendment had to be brought about, but neither the same was .... _ opposed nor any amended written statement/additional written statement was filed. Except the two plots, identity of the rest of Hie plots remained the same. 18. Mr. L. Nageshwar Rao, learned senior counsel may be right in his submission that purported substantial questions of law as framed stricto sensu do not answer the description as contained in sub-Section (5) of Section 100 of the Code of Civil )V Procedure.

We, however, feel that the proper substantial question which should have been framed having regard to the ,\ -"' admitted position is as to whether the contract of sale came to an end only on account of change of Khasra Nos. , although the subject matter of the agreement substantially remained the same. 19. If on the admitted fact, it is found that at least substantial portion of the land remained the same, in our opinion, there -r " does not exist any bar in granting a decree in respect of a part of the suit property. For the said purpose, even Section 12 of the Specific Relief Act would not stand as a bar. Section 12 of the Specific Relief Act reads thus; "Section 12 - Specific performance of part of contract ' ' (1) Except as otherwise hereinafter provided in this section ~ the court shall not direct the specific performance of a part of a contract. (2) Where a party to a contract is unable to perform the -.

; whole of his part of it, but the part which must be left unperformed be a only a small proportion to the whole in value and admits of compensation in money, the court may, at the suit of either party, direct the specific performance of so much of the contract as can be performed, and award compensation in money for the deficiency. (3) Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed either- .... (a) forms a considerable part of the whole, though admitting of compensation in money; or (b) does not admit of compensation in money; he is not entitled to obtain a decree for specific I performance; but the court may, at the suit of the .... ,. other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, if the other party- ,).

_ ' (i) in a case falling under clause (a), pays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed and a case falling under clause (b),1[pays or had paid] the consideration for the whole of the contract without any abatement; and ,, ~ (ii) in either case, relinquishes all claims to the performance of the remaining part of the contract and all right to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant. (4) When a part of a contract which, taken by itself, can and ought to be specifically performed, stands on a / separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the court may direct specific performance of the former part.

" )- Thus, for the reasons stated in the statutory provision, if a decree for specific performance cannot be granted in respect of the entirety, an option in terms thereof has to be exercised. The rigours of Section 16(c) of the Act, however, are not such which would for all intent and purport to be strictly construed. Indisputably, it is necessary to make averments in regard to the readiness and willingness as is required under Section 16(c) of the Act in terms of Form 47 appended to the Code of Civil Procedure. ' ,4. 20. It is, however, trite that, even for the said purpose, the entirety of the plaint must be taken into consideration. If upon reaqing the plaint in its 1antirety, the Court comes to the conclusion that for all interit and purport, the requirements of Section 16(c) of the Specific Relief Act stood complied with, no exception thereto can be. taken.

We have noticed hereinbefore that the First Appellate Court inter alia opined that not only the plaintiff has expressed his readiness to purchase the land, his ,, ..... willingness to do so can be culled out from other averments made in the plaint as and in particular the one where he had stated that he had gone to the Registration Office for getting the deed of sale executed and registered but it was the defendant, who did not turn up thereafter. He has also fulfilled the criteria of his readiness and willingness to perform his part of the contract f ... , as not only he had paid a sum of Rs. 7,0001- on the date of the execution of the agreement, he had deposited a balance sum of Rs. 8,000/- on the date of presentation of the plaint. As a vendee what he could do was to offer the balance amount of consideration to the vendor and make arrangements for getting the sale deed executed and registered.

If he has done all that, we are of the opinion that the Court of First Appeal was right in holding that he was ready and willing to perform his part of the contract. 21. The Court of First Appeal, however, committed a ~ serious error insofar as it failed to take into consideration that ~ the identity of a part of the land being the same, it was not necessary to make any further averment or proof that he had been ready and willing to perform his part of the contract in respect of the subject matter of the agreement. Readiness and willingness to perform one's part of the contract must be confined to the subject matter thereof. If subject matter of the suit remained the same only because Khewat Nos. or Khatauni Nos. changed, the same ipso facto would not change. To the extent the subject matter of the agreement remains the same, a suit for specific performance of the contract can be decreed.

Respondent, ~ furthermore has all along been in possession of the major portion of the land since a long time. He is said to have made improvements on the land. It would be not, thus, equitable to deprive him from possession at least from that portion of the land which was the subject matter of the original agreement. 22. We may at this stage also refer to a recent decision of . _j.. this Court in Ramakrishna Pillai and Anr. v. Muhammed Kunju and Ors. [2008 (2) SCALE 696). The dispute before this court was whether the High Court had erred in holding that the plea of ,, ;.. readiness and willingness was not raised by the plaintiffs. Allowing the appeal, it was held: "The High Court's judgment is clearly vulnerable. Firstly, there was no dispute ever raised by the defendants about the readiness and willingness of the plaintiffs to fulfill their obligations. The High Court was clearly in error in holding ~ ' that no plea regarding readiness and willingness was raised.

As noted above, the trial court in its judgment has referred to various portions of the averments in the plaint where the plaintiffs had categorically stated that they were and are always willing to fulfill their part of the obligations. The High Court also failed to notice that there was no plea . either the written statement or in the cross objections filed in the appeal before the High Court that the plaintiffs were not ready and willing to fulfill their part of the obligation. " As regards the findings of the High Court it was further held: 'r -• 'The conclusions are clearly contrary to the pleadings of the plaintiffs. It was categorically stated in the plaint in both the suits that the plaintiffs are always ready and willing to fulfill their part of the obligations and that defendants were evadin~l the execution for one reason or the other. " 23.

For the views we have taken, we are of the opinion that we in exercise of our jurisdiction under Article 136 of the Constitution of India would refuse to interfere with the judgment of the High Court, save and except to the extent the decree ' -4passed in respect of two new Khasra Nos. namely 63-M/13/ 2(6-8) and 53M/13/1(0-16). 24. However, having regard to the fact that the plaintiff/ respondent No. 1 was denied the decree for specific performance of contract by two courts, although he had beef'I' (n possession of the lands, in question from 1964, this Court in -. /.. -exercise of its discretionary jurisdiction under Article 142 of the Constitution of India as also Section 28 of the Specific Relief - Act direct him to pay a further sum of Rs. 30,000/- to the appellant. The said sum may be deposited within a period of six weeks from date. On deposit of the said sum, the Court should draw up decree in terms of this judgment. ~ .. ,. This appeal is allowed to the aforementioned extent.

There shall, however, in the facts and circumstances of the case no order as to costs. K. K. T. Appeal partly allowed.