High Court
Case Details
RSA 36/2002 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (Oral) This appeal by the defendant is directed against the judgment an d decree dated 29th September, 2001 passed by the learned Civil Judge (Senior Di vision) No.1, Cachar at Silchar in Title Appeal No.5/2000, allowing the appeal p referred by the respondent/plaintiff by setting aside the judgment and decree da ted 12th October, 1999 passed by the learned Civil Judge (Junior Division) No.1, Cachar at Silchar in Title Suit No.1/1998.
Legal Reasoning
[2] The respondent as plaintiff instituted the said suit for specifi c performance of the contract alleging that though the defendant has entered int o an agreement of sale dated 4th June, 1997 (Exhibit-1) for sale of the land mea suring 18 Kathas 13 Chataks, described in the schedule to the plaint, and receiv ed the advance amount of Rs.15,000/-, has neglected to execute the sale deed des pite offering the balance consideration amount of Rs.7,500/-. According to the plaintiff, he was ever ready and willing to perform his part of contract and tho ugh offered the remaining consideration amount, the defendant did not obtain the sale permission, as required under the contract for sale and consequently negle cted to execute the sale deed. [3] The suit of the plaintiff has been contested by the defendant by filing written statement, admitting the execution of the agreement for sale dat ed 4th June, 1997, however, denying that the plaintiff was ready and willing to perform his part of the contract. According to the defendant, though an amount of Rs.15,000/- was mentioned to have been received by him in the said contract f or sale, an amount of Rs.12,000/- only was paid to him and the remaining Rs.3,00 0/-, apart from the remaining other amount, has not been paid to him. The defen dant, therefore, has prayed for dismissal of the suit. [4] amed the following issues for determination:- The trial Court, on the basis of the pleadings of the parties fr Is there any cause of action for the suit? (cid:28)1) 2) Had the defendant entered into an agreement for sale of the suit land fo r consideration of Rs.22,500/- by executing regd.bainama on 4.6.97 receiving Rs. 15,000/- in advance with the promise to register sale deed and deliver possessio n of the same on receiving balance consideration money? 3) ent dt. 4.6.97? 4) 5) Is the plaintiff entitled to a decree as claimed? What relief/reliefs parties are entitled to? (cid:29) Whether the defendant neglected or refused to perform his part of agreem [5] Both the parties in support of their respective claims have exam ined their respective witnesses and proved the contract for sale dated 4th June, 1997 (Exhibit-1). The trial Court upon appreciation of the evidences on record , both oral and documentary, though has answered the issue Nos.1 and 2 in favour of the plaintiff, however, has answered the issue No.3 against the plaintiff as well as the defendant. The trial Court has held that the plaintiff could not p rove that he was ready and willing to perform his part of the contract and at th e same time the defendant was also negligent in performing his part of the contr act. The decree for specific performance of contract, therefore, has been refus ed. [6] Being aggrieved, the plaintiff preferred the aforesaid appeal, w hich has been allowed by setting aside the finding recorded by the trial Court a gainst issue No.3. The first appellate Court has held that since the issue No.3 relates to negligence or refusal of the defendant to perform his part of the co ntract, the Court below could not have gone into the dispute as to whether the p laintiff was ready and willing to perform his part of the contract. Hence, the present appeal. The appeal was initially admitted for hearing vide order dated 2 [7] 0th August, 2002, however, without formulating any substantial question of law, which necessitated this Court to hear the learned counsel appearing for the part ies on involvement of the substantial question of law. Accordingly, the followi ng substantial question of law has been formulated by a separate order passed to day and the appeal has been heard today itself as agreed to by the learned couns el appearing for the parties:- (cid:28)Whether the first appellate Court was justified in holding that since the issu e No.3 was framed relating to the negligence, if any, of the defendant, the ques tion whether the plaintiff was ready and willing to perform his part of the cont ract, cannot be gone into, more so when the parties have led evidence in that re spect. (cid:29) [8] Mr. Roy, learned counsel appearing for the appellant/ defendant, submits that in a suit for specific performance of a contract, the plaintiff ap art from proving the existence of the contract is also required to prove that he was ready and willing to perform his part of the contract and the defendant has neglected to perform his part of the contract. According to the learned counse l, though no issue as to whether the plaintiff was ready and willing to perform his part of the contract has been framed by the trial Court, the parties to the suit have lead evidence to that effect, based on which the trial Court has recor ded the finding that the plaintiff was not ready and willing to perform his part of the contract. The learned counsel submits that the decision of the first a ppellate Court that in the absence of the issue as to whether the plaintiff is r eady and willing to perform his part of the contract, the said question cannot b e gone into by the trial Court, in view of the above, is contrary to law and hen ce, the said judgment and decree may be set aside and the matter may be remitted to the first appellate Court for deciding the said question afresh and on the b asis of the evidence adduced by the parties. [9] On the other hand, Mr. Dhar, learned counsel appearing for the r espondent supporting the judgment and decree passed by the first appellate Court has submitted that though the first appellate Court did not discuss the evidenc e relating to ready and willingness of the plaintiff to perform his part of the contract, the first appellate Court was justified in passing the decree in favou r of the plaintiff, as he could prove by adducing evidence that he was ready and willing to perform his part of the contract. The learned counsel submits that admittedly there is no dispute relating to execution of the contract for sale da ted 4th June, 1997 (Exhibit-1). [10] I have considered the submissions advanced by the learned counse l appearing for the parties and perused the judgment and decree passed by the Co urt below. [11] In a suit for specific performance of the contract, the plaintif f, apart from others, is also required to prove the existence of the contract, r eady and willingness of the plaintiff to perform his part of the contract and al so negligence/refusal on the part of the defendant to perform his part of the co ntract. [12] In the instant case, the defendant in the written statement file d has admitted the execution of the contract dated 4th June, 1997 (Exhibit-1). T he plea taken by the defendant that an amount of Rs.12,000/- only was paid as ad vance and not Rs.15,000/-, has not been accepted, rightly so, in view of the fac t that the said contract is a registered document, whereby and whereunder the de fendant has acknowledged receipt of the amount of Rs.15,000/-, as advance, out o f total consideration amount of Rs.22,500/-. [13] As discussed above, as the plaintiff, to be successful in gettin g a decree for specific performance of the contract is required to prove that he was ready and willing to perform his part of the contract, which he claimed to be so in the plaint and has been disputed by the defendant in the written statem ent, the trial Court ought to have framed the issue relating to the ready and wi llingness of the plaintiff to perform his part of the contract. None framing of such issue, however, cannot be the ground for setting aside the judgment and de cree passed in the instant case, as the parties have led evidence on that questi on, which has also been answered by the trial Court while deciding the issue No. 3. The first appellate Court has completely ignored that aspect of the matter a nd has held that the question as to whether the plaintiff was ready and willing to perform his part of the contract cannot be gone into when no such issue has b een framed. The same is not the correct proposition of law. Since no finding has been recorded by the first appellate Court [14] relating to the ready and willingness of the plaintiff to perform his part of th e contract, which is an essential element for passing a decree for specific perf ormance of the contract, I set aside the judgment and decree dated 29th Septembe r, 2001 passed by the first appellate Court and remand the appeal to the said Co urt for recording the finding in that regard and to pass a fresh judgment and de cree, based on the evidence already adduced by the parties. The parties are directed to appear before the first appellate Co [15] urt on 19th August, 2013, which Court shall decide the said appeal within 1(one) month thereafter. [16] ppellate Court, so as to reach the said Court on or before 12th August, 2013. The Registry is directed to send down the records to the first a [17] ove. The parties are, however, directed to bear their own cost throughout. The appeal is accordingly allowed to the extent, as indicated ab