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(2013) AIR(HP) 18 : (2012) Sup HimLR 2647 : (2012) LatestHLJ(HP) 1386
HIMACHAL PRADESH HIGH COURT
SINGLE BENCH

KEHAR SINGH — Appellant

Vs.

PREM SHARMA — Respondent

( Before : Surinder Singh, J )
Regular First Appeal 215 of 2011
Decided on : 30-10-2012

Specific Relief Act, 1963 - Section 16

Counsel for Appearing Parties

T. S. Chauhan, for the Appellant; Sanjeev Kuthiala, for the Respondent
Cases Referred

Govind Prasad Chaturvedi Vs. Hari Dutt Shastri and Another, AIR 1977
SC 1005 : (1977) 2 SCC 539 : (1977) 2 SCR 877
Smt. Swarnam Ramachandran and Another Vs. Aravacode Chakungal
Jayapalan, (2004) 5 CTC 369 : (2004) 7 JT 53 : (2004) 7 SCALE 211 : (2004)
8 SCC 689 : (2004) 1 SCR 806 Supp : (2004) 2 UJ 1373

Final Result : Dismissed

JUDGMENT

Surinder Singh, J.—The defendant-appellant has directed the present appeal,

having been felt aggrieved and dissatisfied by the judgment and decree
passed by the learned District Judge in Civil Suit No. 1 of 2010 decided on
15.6.2011 whereby the suit filed by the plaintiff for specific performance was
decreed.
Admitted Facts:
It is admitted by the parties that an agreement to sell Ext. PW 1/A was
executed by them on 30.7.2009 with respect to the suit land comprised of
Khasra No. 1542/639 to the extent of 0.5 Biswas qua the entire share of
defendant for a total consideration of Rs. 13 lacs and an amount of Rs. 7 lack
was received by the defendant on the same day as an earnest money. The
balance amount of Rs. 6 lack was required to be paid to the defendant on the
date of execution and registration of the sale deed on or before 5.10.2009.
Facts Disputed:
2. According to the plaintiff, after the execution of the agreement to sell, he
had approached the defendant many times for executing the sale deed, but
he started dillydallying. Finally, on 4.10.2009, he again contacted the
defendant and requested him to receive the balance amount and execute the
sale deed. The defendant assured him to be present on the next day i.e. on
5.10.2009 in Tehsil Office, Kullu, for the said purpose. Though, the plaintiff
remained present there till 4.30 p.m. and was ready with the balance
amount to perform his part of the contract, but the defendant failed to turn
up. To prove his bona fide, he had sworn an affidavit Ext. PW 4/A, before the
Executive Magistrate. Further it is the case of the plaintiff that even
thereafter he had approached the defendant in the month of December,
2009 and January, 2010, but the defendant did not give any positive
response, as such, he served a notice upon him and in reply the defendant
took up the false stands, thus filed the suit.
3. The defendant contested the suit by filing his written statement alleging
that he was present on 5.10.2009 in Tehsil office, Kullu, but the plaintiff
failed to turn up for the execution of the sale deed and to pay the balance
amount. He also executed an affidavit Ext. DA duly attested by the Executive
Magistrate to show his presence on the same day. According to him, the
plaintiff did not turn up with money, the agreement stood cancelled and
earnest money paid by the plaintiff also stood forfeited. Thereafter the
defendant raised the building over the suit land and now the question of
execution of the sale deed did not arise at all. Thus, prayed for the dismissal
of the suit.
4. In replication, the contents of the written statement have been totally
denied and even paras of the plaint were re-asserted and it is specifically
averred that the suit land was already having an old structure at the time of
execution of the agreement to sell, which was on the suit land and the
subject matter of the sale.
5. On the rival contentions of the parties, the following issues were framed :--
(1) Whether the plaintiff is ready and willing to perform his part of the
agreement to sell dated 30.7.2009? OPP.
(2) Whether the house on the suit land, subject matter of the agreement to
sell dated 30.7.2009 was constructed prior to the execution of the agreement
to sell dated 30.7.2009? OPP.
(3) Whether the plaintiff has no cause of action to file the present suit? OPD.
(4) Whether the suit of the plaintiff is not maintainable? OPD.
(5) Whether the plaintiff has suppressed material facts from the Court? OPD.
(6) Whether the plaintiff has no locus standi to file the present suit? OPD.
(7) Relief.
6. After the complete trial, the learned trial Court answered issue Nos. 1 and
2 in affirmative and others in negative, consequently, the suit of the plaintiff
was decreed and a decree for possession of the suit land by way of specific
performance of contract was passed with a direction to the defendant to
register the sale deed along with structure thereupon in favour of the
plaintiff on receipt of the balance amount of ` 6 lacs from the plaintiff on the
basis of agreement aforesaid.
7. The defendant felt aggrieved and dissatisfied by the impugned judgment
and decree, as such preferred the present appeal precisely on the ground
that on 5.10.2009, the plaintiff was not present to perform his part of
contract in Tehsil Office, Kullu, as such, money received by the defendant in
advance stood forfeited as the time was essence of the contract. It is also
pointed out that there was no RCC structure standing over the suit land
which is now worth Rs. 30-40 lacs and was constructed only after the
agreement stood cancelled. Thus, the learned trial Court has no pecuniary
jurisdiction to try and hear the present suit.
8. Shri T.S. Chauhan, learned counsel for the appellant tried to develop the
above points and submitted that the learned trial Court wrongly took the
cognizance of the suit and also failed to appreciate the evidence on record in
the right perspective.
9. On the other hand, Shri Sanjeev Kuthiala, learned counsel for the
defendant supported the impugned judgment and decree passed by the
learned trial Court and referred to the evidence on record to dislodge the
contentions so raised.
10. From the rival contentions, the following points arise for determination :-
-
1. Whether the learned District Judge had no jurisdiction to try and hear the
suit?
2. Whether the learned District Judge has also erred in holding that the
structure already in existence stood included in the agreement to sell and
that the evidence on record was misappreciated and miss-interpreted, which
led to a wrong conclusion?
11. For the reasons mentioned hereinafter, my answer to both the above
points is in negative.
Point No. 1.
12. In fact the valuation of the suit and any incidental issue, as pleaded in
the plaint, determines the jurisdiction. Only the averments made in the
plaint could be looked into while deciding the pecuniary jurisdiction of the
Court. In para-13 of the plaint, the value of the suit for the purpose of court
fee and jurisdiction was assessed at Rs. 13 lacs, i.e. the consideration amount
upon which the court fee of Rs. 15,600/- was affixed. This para is denied
being wrong in the written statement. But the record of the learned trial
Court reveals that on the date of framing of the issues on 8.10.2010, no other
issue than already stated above were claimed or pressed before the learned
District Judge. Further the defendant in his evidence-affidavit Ext. DW 1/A
also did not take up and agitate this issue nor led any evidence knowing-
fully well his case, therefore, he is now precluded and estopped to take this
plea in appeal. Further, I find that the consideration amount was Rs. 13 lacs,
on which the proper court fee was affixed and the learned District Judge was
competent to hear and determine the case as it fell within its pecuniary
jurisdiction, as such, this point is decided against the defendant.
Point No. 2:
13. The land in dispute is only 05 biswas which fell within the share of the
defendant in the joint Khata and the consideration amount as agreed
between the parties on 30.7.2009 at the time of execution of the agreement
to sell, was Rs. 13 lacs. The plaintiff had examined himself as PW 4. He
substantiated his plea taken in the plaint by his evidence-affidavit Ext. PW
4/A that the suit land included two storeyed structure, which was already
existing at that time. His plea and the stand taken by him is corroborated by
PW 5 Musadi Lal, a mason, who is stated to have been engaged by the
defendant to construct the said building in the year 1996. According to him,
first lintel was put in the month of February, 1997. He also gave specification
of the structure. Further to prove the existence of the said building on the
disputed land, plaintiff had examined PW-2 Dalip Singh, lineman of the
Electricity Board, who had brought the record of the electric connection of
the said building, which was applied for by the defendant. He stated that the
electric connection was given to the defendant for domestic use on 5.11.1999
and the meter was installed on 8.12.1999. He placed on record copies of the
service connection order Ext. PW 2/A, its report Ext. PW 2/B, estimate Ext.
PW 2/C and pro forma Ext. PW 2/D along with a copy of the application Ext.
PW 2/E moved by the defendant for said connection. He was not seriously
cross-examined to dispute the above facts. There is only one line cross-
examination to which he admitted that the connections as applied were
being given to the owner or the tenant. There is not even a remote
suggestion put to him that the documents aforesaid did not pertain to the
said building. The learned trial Court on the basis of the above evidence, in
my opinion, rightly came to the conclusion that these documents falsify the
stand taken by the defendant that he had obtained the electric connection
for the structure constructed by PW 5 Musadi Lal. Even the defendant did
not dispute this fact in his cross-examination. If we have a look on the
documents aforesaid, the sanctioned load was 4.80 kilowatt and the survey
estimate Ext. PW 2/C shows the quantity of the items used for electric
connection and another document Ext. PW 2/E gives the details of the
wattage for the structure/building in existence. Interestingly, in his cross-
examination, the defendant has admitted that in the said village, he did not
have any other land except the suit land and facts are admitted that this land
to the extent of his share was agreed to be sold to the plaintiff as aforesaid.
The electric fittings with respect to the load and total electric material used
do not indicate that these were the fitting of the temporary structure
(Khokha), rather it shows that these fittings and the number of electric
points provided therein was for a two storeyed building, which is virtually
the subject matter of the agreement.
14. The above critical examination goes to show that the house in question
was already in existence in the year 1998-99 much earlier to execution of the
agreement to sell (Ext. P1), which was referred to, as a land and also both the
parties knew fully well about its existence thereof and also about the subject
matter of the sale.
15. Further the defendant's plea is proved to be dishonest and he has failed
to adduce any cogent evidence with respect to the construction of the said
building as alleged after 5.10.2009. Once it is concluded that the building was
in existence as aforesaid when the agreement to sell was executed and the
consideration amount was reasonably agreed upon to be paid as aforesaid.
16. The next question arises whether the plaintiff had been ready and
willing to perform his part of contract.
17. In fact an agreement to sell comes into existence when the vendor agrees
to sell and the purchaser agrees to purchase, for an agreed consideration on
agreed terms. Even it can be oral. It can be by exchange of communication
which may or may not be signed. It may be by a single document signed by
both parties. It can also be by a document in two parts, each party signing
one copy and then exchanging the signed copy as a consequence of which
the purchaser has the copy signed by the vendor and a vendor has a copy
signed by the purchaser. Or it can be by the vendor executing the document
and delivering it to the purchaser who accepts it. In the event of breach by
the vendor, it can be specifically enforced by the purchaser.
18. In the instant case, agreement is in writing and is complete. Advance
money was paid and the balance amount was to be paid at the time of
execution of the sale deed as stated above. The unsuccessful defendant is the
appellant before this Court.
19. In Govind Prasad Chaturvedi Vs. Hari Dutt Shastri and Another, the
Supreme Court held :--
It is settled law that the fixation of the period within which the contract has
to be performed does not make the stipulation as to time the essence of the
contract. When a contract relates to sale of immovable property it will
normally be presumed that the time is not the essence of the contract. It may
also be mentioned that the language used in the agreement is not such as to
indicate in unmistakable terms that the time is of the essence of the contract.
The intention to treat time as the essence of the contract may be evidenced
by circumstances which are sufficiently strong to displace the normal
presumption that in a contract of sale of land stipulation as to time is not the
essence of the contract.
20. In Smt. Swarnam Ramachandran and Another Vs. Aravacode Chakungal
Jayapalan, the Apex Court reiterated the above proposition. Though in the
agreement, time to perform the contract was indicated, but even thereafter
the plaintiff had been pursuing hard by making request to the defendant to
execute the sale deed and also served a notice upon him, this shows his
continuous readiness.
21. Section 16 of the Specific Relief Act mandates "readiness and willingness"
on the part of the plaintiff and it is a condition precedent for obtaining relief
of grant of specific performance. It is also clear that in a suit for specific
performance, the plaintiff must allege and prove a continuous "readiness
and willingness" to perform the contract on his part from the date of the
contract. The onus is on the plaintiff. The readiness and willingness cannot
be the facts and circumstances relevant to the intention and conduct of the
party concerned and it is a settled law that even the plaintiff has to comply
with Section 16 of the Specific Relief Act and when there is non-compliance
with this statutory mandate, the Court is not bound to grant specific
performance and is left with no other alternative but to dismiss the suit. As a
matter of fact readiness to perform must be established throughout the
relevant points of time to perform the part of the contract which has to
ascertain/determine from the conduct of the parties, to which the plaintiff
has successfully established.
22. Significantly, the receipt of the advance of Rs. 7 lacs was admitted in the
written statement by the defendant, but when examined himself as his own
witness he denied this fact which spells out his ulterior motive. It is proved
that the plaintiff was present on 5.10.2009 in the office of the Sub-Registrar
which was the last day of executing the agreement. He deposed that he had
already approached the defendant on 4.10.2009 to execute the sale-deed on
the receipt of the balance amount and he assured to be present in the office
of the Sub-Registrar on 5.10.2009, which fact has not been disputed by the
defendant. When the defendant did not turn up he executed affidavit Ext.
PW 3/A, which has been proved through the clerk of the office of the Sub-
Registrar. In view of this, his contention assumes significance coupled with
the fact that thereafter the plaintiff was trying to persuade the defendant to
execute the sale-deed and ultimately served him with a notice, the receipt
whereof was acknowledged by the defendant and in reply to that he took a
U-turn that the plaintiff was not ready and willing to perform his part of the
contract and he had also executed the affidavit to this effect. His affidavit
executed before this Executive Magistrate is Ext. DA dated 5.10.2009, which
is subsequent in time as per serial number of the affidavit Ext. PW 3/A of the
same date. Meaning thereby both were present on the same day in the office
of the Sub-Registrar, but the defendant did not contact the plaintiff to show
his willingness to perform his part of the contract. The above facts coupled
with the denial of the defendant as having not received even the earnest
amount of Rs. 7 lacs and the notice as well, exhibit his conduct that he was
an unwilling party. Thus on the above facts, the learned trial Court rightly
took into consideration the above facts while weighing the question of
exercise of discretion for decreeing or denying a decree for specific
performance, therefore such a grant of the decree would not amount to an
instrument of oppression giving unfair advantage to the plaintiff/proposed
vendee. In my opinion, the plaintiff has been able to establish his readiness
and willingness throughout the relevant points of time. Thus, no fault can be
found in the impugned judgment and decree of the learned trial Court. As
such, the appeal is dismissed with costs. The defendant is hereby ordered to
execute the sale-deed in favour of the plaintiff with respect to the suit land
along with RCC structure standing thereon on the receipt of the balance
consideration amount of Rs. 6 lacs from the plaintiff on the basis of the
agreement to sell dated 30.8.2009 on or before 30.12.2012, failing which the
learned trial Court shall be at liberty to execute the impugned decree in
accordance with law.