Poonam Srivastav, J.@mdashThis second appeal is listed for admission. Record was summoned at the time when the appeal was filed and both the counsels are agreed that this appeal may be decided at the stage of admission itself.
2. Sri H.N. Singh advocate appears for the defendant-appellant and Sri Rajeev Mishra advocate for the plaintiff-respondent.
3. The facts giving rise to the dispute are that an agreement to sell in respect of plot No. 15 having an area 1 bigha, 18 biswa and 12 dhoor was executed in favour of the plaintiff-respondent for a consideration of Rs. 1,17,000 on 4.9.1991. The earnest money paid was Rs. 15,000. There was a specific recital in the agreement that since the plaintiff-respondent was not in possession of the entire sale consideration, the sale deed will be executed by 30.4.1992 after payment of the remaining amount of Rs. 1,02,000. It was further agreed that in the event, either party fails to perform its part within the stipulated period, then the plaintiff will be entitled to deposit the remaining money, i.e., Rs. 1,02,000 in the Court and get the sale deed executed which will not be objected by the defendant-appellant. It was further agreed that the possession will be handed over after execution of the sale deed. The plaintiff-respondent instituted Original Suit No. 118 of 1994 on 3.9.1994 for specific performance. The assertion in the plaint was that a notice for executing the sale deed was given by the plaintiff on 2.8.1994 by registered post asking the defendant-appellant to execute the sale deed after payment of balance consideration of Rs. 1,02,000 on 25.8.1994 in the Registrar office. The defendant failed to comply with the notice hence the suit was instituted. The defendant-appellant filed his written statement. The execution of the agreement to sell on 4.9.1991 was admitted. It was also admitted that the time frame for getting the sale deed executed was 30.4.1992 but since the plaintiff was not willing to get the sale deed executed within the time frame, she cannot get the relief claimed and the defendant cannot be compelled to execute the sale deed. Additional plea taken by the defendant was that he was in need of money at the relevant time when the agreement was entered into as he was negotiating to purchase another land but since he did not have enough money, he offered his land to sell which was adjacent to the land of the plaintiff. He had borrowed Rs. 15,000, the date in the agreement to sell was 30.4.1992 but the plaintiff failed to get the sale deed executed. Whenever the defendant approached her, she was short of funds and, therefore, the sale deed could not be executed. The notice given on 2.8.1994 was much beyond time, i.e., two years and four months and, therefore, the plaintiff was not entitled to the relief claimed in the plaint. The trial court framed as many as five issues and finally decreed the suit by judgment and decree dated 4.9.1998. The appellant preferred First Appeal No. 17 of 1999 in the Court of District Judge, Bhadohi at Gyanpur. The lower appellate court framed additional issue No. 6 which reads as under;
Issue No. 6.-Whether the terms of the contract was violated, if yes, its effect on the contesting parties?
4. After framing the issue, an order was passed on 4.4.2001 directing the parties to lead evidence since the matter relates to the year 1994, there is no necessity to send the matter back to the trial court. The burden is that of the defendant-appellant, he may lead evidence and thereafter the plaintiff-respondent can also lead evidence. The date fixed for evidence was 5.5.2001. The order dated 4.4.2001 was challenged in this Court in Writ Petition No. 21083 of 2001, Shambhu Prasad v. 1st Additional District Judge, Bhadohi and Ors. which was dismissed on 25.5.2001. The said order is quoted below:
This writ petition is directed against the order dated 4.4.2001 whereby the Court partly allowed the application to frame additional issues and directed the parties to lead evidence on such issues.
Learned Counsel for the petitioner contended that in fact the matter should be remanded to the trial court on this question.
I do not find it a fit case for interference under Article 226 of the Constitution of India. The petitioner can challenge the impugned order in second appeal on permissible grounds in case the first appeal is finally decided against him.
The writ petition is accordingly dismissed.
Dated 25.5.2001
Sd. Sudhir Narain, J.
5. The appellant did not lead any evidence before the lower appellate court, on the contrary advanced his argument on issue No. 6 that the permission to frame additional issue No. 6 is an order under Order XLI, Rule 25, C.P.C. and not under Order XLI, Rule 24, C.P.C. and, therefore, the lower appellate court was bound to send back the matter to the trial court to enable the parties to adduce evidence and thereafter a decision on the new issue may be obtained before proceeding with the appeal. However, this argument did not find favour with the lower appellate court and finally all the issues were decided against the defendant-appellant and the appeal was dismissed vide judgment and decree dated 22.3.2007. Both the Judgments have been challenged in the instant second appeal.
6. The appeal is being heard finally and, therefore, before proceeding to decide the case at the admission stage, substantial questions of law on which the appellant is required to assail the judgment of the two courts below, are to be framed. The substantial questions of law framed in the instant second appeal are as follows:
A. Whether the lower appellate court has misread and misconstrued the provision of Order XLI, Rule 24 and Order XLI, Rule 25 and has illegally called upon the appellant to lead the evidence in respect of issue No. 6 which was framed by the appellate court during the pendency of the appeal and has committed a gross illegality in not remanding to the trial court to lead the evidence.
B. Whether the court below has committed illegality in shifting the burden of proof of contract being cancelled on the defendant/appellant in the facts and circumstances of the case when the plaintiff respondent has failed to produce any material and make any pleading to the effect that she was in possession of balance amount of Rs. 1,02,000 on or before 30.4.1992 and in spite of her readiness the defendant/appellant has refused to execute the sale deed.
C. Whether the courts below have omitted to consider the effect of the provision of Section 39 and Section 55 of the Contract Act and ignored to consider that because of the failure of the plaintiff-respondent to comply her promise on the appointed date, i.e., on or before 30.4.1992 the contract stood rendered voidable at the option of the appellant and may not be performed.
D. Whether the court below has committed a mistake in omitting to consider the provision of Section 14 and Section 20 of Specific Relief Act and to consider that non-performance may be adequately compensated in terms of money and performance of contract will cause unforeseen hardship to the defendant.
7. The submission of the learned Counsel for the appellant in respect of substantial question of law No. 1 is, that the lower appellate court completely lost sight of the difference between the two Sub-rule namely Rules 24 and 25 of Order XLI, C.P.C. The submission is that Rule 24 empowers the appellate court to determine and decide the issue framed at the stage of appeal without remanding the matter to the trial court because existing evidence on record is sufficient to enable the appellate court to pronounce the judgment. Rule 24 speaks that where the evidence on record is sufficient, the appellate court may determine the case finally after resettling the issues, whereas Rule 25 states that the appellate court may frame new issues and refer the matter for the trial court from whose decree the appeal is preferred, directing the trial court to take additional evidence and thereafter return the evidence to the appellate court together with the findings thereon and reasons thereof. The emphasis is that the court below completely ignored the fact that this was not a case where the evidence already existing on record were sufficient for deciding the new issues. Admittedly, the Court permitted the parties to lead evidence vide order dated 4.4.2001 after framing issue No. 6. Sri H. N. Singh further submits that while dismissing the writ petition, this Court had left it open to challenge the order in second appeal, in the event the first appeal is decided against him. In the circumstances, this Court was entitled to examine the matter as to whether the order dated 4.4.2001 was an order under Rule 24 or it was under Rule 25 of Order XLI, C.P.C.
8. Sri Rajeev Mishra has disputed the aforesaid argument of the learned Counsel for the appellant. He has tried to draw my attention regarding additional evidence at the appellate stage. The submission is that Order XLI, Rule 27(b), C.P.C. clearly entitles a party to produce any witness to be examined at the appellate stage to enable it to pronounce judgment, or for any other substantial cause. This argument is also coupled with an emphatic assertion that Order XLI, Rule 28, C.P.C. prescribes the mode of taking additional evidence. Since the appellant declined to lead evidence despite permission was granted, he cannot be permitted to raise this objection at the stage of second appeal. It is also stated that there is a specific finding by the lower appellate court that despite the Court had permitted the defendant-appellant to adduce evidence but the opportunity to lead any evidence was declined therefore, it is not open for him to raise any objection at this stage. The argument regarding difference in Rules 24 and 25 of Order XLI, C.P.C. is rendered altogether redundant.
9. The submission of the learned Counsel for the appellant regarding second substantial question of law is as to whether the plaintiff failed to substantiate before the courts below that she had funds for getting the sale deed executed on or before 30.4.1992 after payment of Rs. 1,02,000. It was the duty of the plaintiff to establish her readiness and willingness to get the sale deed executed before the appointed date as agreed between the parties. On the face of clear admission of the plaintiff in her pleadings as well as the fact that the first notice Itself was given on 2.8.1994, i.e., two years four months after the agreed date, the courts below have committed gross error while decreeing the suit and recording finding in favour of the plaintiff on the necessary requirement of Section 16(c) of the Specific Relief Act, 1963. It is submitted that the terms of agreement are very specific and it is one of those cases where time is the essence of the contract and since the plaintiff failed to give any notice or show any inclination to get the sale deed executed by 30.4.1992 and also taken no steps to get the sale deed executed through Court after depositing balance money, it is sufficient to establish that there was no readiness and willingness on the part of the plaintiff-respondent to perform her part of the contract. The findings recorded on issue No. 2 regarding the question that whether in the instant case time was the essence of the contract or not and also issue No. 3 that whether the plaintiff was ready to perform her part of the contract as well as issue No. 4 on the question of compliance of Section 16(c) of the Specific Relief Act, are absolutely perverse and bare perusal of the evidence will support the said contention. Learned Counsel has placed the agreement dated 4.9.1991 in support of his argument that a specific date for executing the sale deed was 30.4.1992 and it was also unequivocally agreed between the parties that in the event of failure on the part of the defendant to execute the sale deed by 30.4.1992, the plaintiff will be entitled to deposit the money in the Court and get the sale deed executed and defendant vendor will have no objection whatsoever. This fact was also admitted in the statement of P.W. 2 Shamim Jahan that the period of six months was applicable equally to both the parties. "MIYAD SIX MAH KE BAVAT DONO PAKSHON PER LAGU THI". Besides this, there was also an admission that it was the defendant who came to her house on several occasions but she never ever went to the house of the defendant though she is not pardanashin lady. The clear admission in the statement of P.W. 2 that save for the notice dated 2.8.1994, no other notice was given previously, is sufficient to establish that the suit was Instituted after lapse of agreed period as mentioned in the deed. In the circumstances, the findings arrived at by the courts below is perverse.
10. Learned Counsel for the respondent has disputed this argument of the learned Counsel for the appellant. The submission is that since the period of six months was equally applicable on both the parties, the defendant should have taken steps after lapse of six months to get the contract rescinded after lapse of six months. The defendant kept lying down despite the time had lapsed and he only came up with his objection when the suit was instituted. Since the defendant wants to derive benefit from the fact that period agreed upon had lapsed and he had taken no steps to get the contract cancelled, a bald denial in the written statement will not suffice. Besides, the learned Counsel has also placed the statement of P.W. 2 where she has stated in examination-in-chief that time restriction was only for the plaintiff and not for the defendant. The recital of the agreement clearly shows that vendee could get the sale deed executed in the event there was failure on the part of the vendor within the time limit fixed to which no objection will be raised by the vendor, therefore, no benefit could be given to the defendant on the basis of date, i.e., 30.4.1992 mentioned in the agreement. It Is also argued that heavy burden lay on the defendant to substantiate that there was no readiness or willingness on the part of the plaintiff to get the sale deed executed since it was the defendant who would have benefitted. Sri Rajeev Mishra further submits that it is settled law that the burden lies on the person who will get benefit of a certain act or omission on the part of a contesting party. The conclusions arrived at by the Court is from the conduct of the party. The plaintiff has clearly stated in paragraph 6 of her plaint that she was always willing and ready to perform her part of contract which has only been denied in the written statement without any other specific assertion. In the circumstances, the conclusions by the two Courts are finding of facts and cannot be interfered in this second appeal.
11. Learned Counsel for the appellant has framed the substantial question of law on the provisions of Sections 39 and 55 of the Contract Act. Since the plaintiff failed to comply her promise on the appointed date on or before 30.4.1992, the contract stood voidable at the option of the appellant. Learned Counsel has placed various provision of the Contract Act. Certain provisions of the Contract Act placed before me in support of the argument on the third substantial question of law relates to the provisions of Sections 39, 48, 51, 52 and 55 of the Indian Contract Act which are quoted below:
39. Effect of refusal of party to perform promise wholly.--When a party to a contract has refused to perform, or disabled himself from performing his promise in its entirety, the promisee may put an end to the contract, unless he has signified, by words or conduct, his acquiescence in its continuance.
48. Application for performance on certain day to be at proper time and place.--When a promise is to be performed on a certain day, and the promisor has not undertaken to perform it without application by the promisee, it is the duty of the promisee to apply for performance at a proper place and within the usual hours of business.
51. Promisor not bound to perform, unless reciprocal promisee ready and willing to perform. - When a contract consists of reciprocal promises to be simultaneously performed, no promisor need perform his promise unless the promisee is ready and willing to perform his reciprocal promise.
52. Order of performance of reciprocal promises.-Where the order in which reciprocal promises are to be performed is expressly fixed by the contract, they shall be performed in that order, and where the order is not expressly fixed by the contract, they shall be performed in that order which the nature of the transaction requires.
55. Effect of failure to perform at fixed time, in contract in which time is essential.-When a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before specified time, and falls to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promisee, if the intention of the parties was that time should be of the essence of the contract.
12. Learned Counsel has placed the pleadings as well as oral evidence. Besides the emphasis is on the terms and conditions of the agreement and statements of the witnesses and close scrutiny thereof is sufficient to arrive at a conclusion that the plaintiff cannot be given benefit of her own lapses for a decree of specific performance. A heavy burden lies on the plaintiff to get benefit and the sale deed executed even after the time lapses which was a specific date and will amount to one of the essential conditions of the contract.
13. Sri Rajeev Mishra has emphatically denied and tried to establish that there is no assertion on the part of the defendant and in case he himself failed to get the contract rescinded after period of six months lapsed, he is not entitled to challenge two concurrent findings and raise objections. The appellant cannot derive benefit on the basis of violation of time limit since it is the defendant himself who would have benefitted from claiming the lapse in the time frame which was not accepted by the two courts below.
14. The last substantial question of law is regarding Sections 14 and 20 of the Specific Relief Act. The submission on behalf of the appellant is that the relief under the Specific Relief Act is a discretionary one and since the plaintiff herself failed to call upon the defendant to perform his part of the contract or to deposit the money in the Court and get the sale deed executed and as agreed between the parties at the time of execution of the deed, she cannot be given any discretionary relief whatsoever. Learned Counsel has also emphasized that this is one of the cases where the plaintiff is entitled for compensation in terms of money and it will be adequate and appropriate relief. The defendant has admitted in his written statement as well as statement before the Court that he is a retired Inspector from the police department. He has nine family members and there are only three bighas of land. Besides, he agreed to sell the disputed land only because he wanted to purchase an alternative land from one Shiv Dayal which did not materialize as the plaintiff was not able to give more than Rs. 15,000 at the time when the agreement was executed and, therefore, the equity lies in favour of the defendant and not with the plaintiff.
15. Sri Rajeev Mishra has strenuously disputed this argument as well and has submitted that since the statement of the defendant was not accepted by the two courts below that he wanted to get the sale deed executed from one Shiv Dayal, therefore, it is not acceptable in a second appeal to entertain this argument while considering the substantial question of law raised in respect of Sections 20 and 14 of the Specific Relief Act.
16. After hearing the arguments of respective counsels at length and going through the record and two impugned judgments, I proceed to decide four substantial questions of law raised in this appeal. A perusal of the agreement to sell, it is evident that the parties agreed a stipulated period for performance of the contract which was by 30.4.1992, meaning thereby the vendor accepted the token money of Rs. 15,000 at time of agreement and vendee also accepted the offer made by the defendant that he will execute the sale deed after payment of balance money by 30.4.1992. There is no ambiguity in the deed and in clear terms the sale deed was to be executed by 30.4.1992, falling which the vendee will be at liberty to deposit the money in Court and get the sale deed executed in her favour. The vendor had agreed that he will have no right whatsoever to raise objection if the vendee deposits the balance amount for getting the sale deed executed in her favour. These terms and conditions were looked into by the courts below and since both the parties admitted the execution of the deed of agreement to sell, the Courts recorded a finding regarding validity of the agreement. The dispute arose only when the suit was instituted by the plaintiff after lapse of more than two years of the stipulated date and the stand taken by the defendant-appellant in his written statement was that since no effort was made by the plaintiff to get the sale deed executed or pay the balance amount despite her own admission that the defendant had gone to her house on several occasions, there was no Inclination expressed by the plaintiff to pay the money or get the sale deed executed. The lower appellate court framed afresh issue on the question of violation of terms of the contract as issue No. 6 and also if there was a violation of the terms and conditions, who was responsible for its violation. No doubt the issue has been framed but the appellant did not lead any evidence at the appellate stage. The lower appellate court failed to remand the matter to the trial court and since this Court, in the Writ Petition No. 21083 of 2001 had granted liberty to the defendant-petitioner to agitate this question as to whether the order dated 4.4.2001 is one under Rule 24 or Rule 25 of Order XLI, C.P.C., objection has been raised In the instant appeal next time. Rules 24 and 25 of Order XLI, C.P.C. reads as under:
24. Where evidence on record sufficient, appellate court may determine case finally.-Where the evidence upon the record Is sufficient to enable the appellate court to pronounce judgment, the appellate court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal Is preferred has proceeded wholly upon some ground other than that on which the appellate court proceeds.
25. Where appellate court may frame issues and refer them for trial to Court whose decree appealed from.-Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the appellate court essential to the right decision of the suit upon the merits, the appellate court may, if necessary frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred and in such case shall direct such Court to take the additional evidence required;
and such Court shall proceed to try such issues, and shall return the evidence to the appellate court together with its findings thereon and the reasons therefore within such time as may be fixed by the appellate court or extended by it from time to time.
17. I consider it appropriate to decide this question at the very outset. A bare reading of Rules 24 and 25 which are quoted above, it is obvious that Rule 24 is for the appeals where after framing or resettling a new issue, the appellate court can proceed to decide the issue on merits without taking any additional evidence, whereas Rule 25 makes incumbent on the appellate court that if in a given case after framing or resettling new issue, evidence is required then the matter should be referred to the trial court to take additional evidence and thereafter such Court shall proceed to try such issue and return it to the appellate court. I am not in agreement with the argument of the counsel for the respondent that since the appellate court has a right to take additional evidence under Rule 27 of Order XLI, C.P.C. and specially when the appellate court was ready to take the evidence, the matter cannot be agitated in the second appeal. Order XLI, Rule 27, C.P.C. is a contingency which is entirely different from one at hand. In fact Rule 27 is coined in a negative tone. Rule 27 provides that no party shall be entitled to produce additional evidence whether oral or documentary, in the appellate court. There are exceptions to the said rule where the Court can permit a party to lead additional evidence at the appellate stage after obtaining leave of the Court. This provision is at the instance of either parties. Order XLI, Rule 27(2), C.P.C. provides that whenever additional evidence is allowed to be produced, that Court shall record the reason for its admission. It is thus clear that the party intending to move additional evidence has to satisfy the Court as to why the evidence was not produced at the trial stage. What had prevented the party from leading evidence despite exercise of due diligence, the concerned party was prevented from doing so. A close reading of the said provision, it is abundantly clear that in the Instant case the requirement for moving additional evidence at the appellate stage arose only because the lower appellate court was satisfied that the trial court had failed to frame an important issue which was necessary to decide to arrive at a Just conclusion. After a new issue was framed and the Court felt that some evidence is required to be led to decide the issue so framed, it has no other option but to remand the matter back to the trial court. It could not have brushed aside by saying that the defendant declined to lead additional evidence and decide the issue against him, specially in a case where discretionary relief has been claimed and the Act also provides to consider the equities while granting the relief. The discretion is to be exercised Judiciously and on the material adduced in evidence. The lower appellate court was correct in framing issue No. 6 but was in error by declining to adopt the procedure provided under Order XLI, Rule 25, C.P.C. In the circumstances, I am of the view that the lower appellate court committed substantial illegality while deciding issue No. 6 which was a new issue without permitting the parties to lead evidence and for doing so the matter should have been remanded to the trial court. The construction of new issue is meaningless, if the parties are prevented from leading evidence to prove their case. So far substantial question No. 1 is concerned, I hold that the lower appellate court has substantially erred in law and therefore, findings recorded on issue No. 6 are set aside.
18. The substantial questions of law Nos. 2 and 3 raised in this appeal regarding willingness and readiness as well as omission to consider the fact of Sections 39 and 55 of the Contract Act, they are decided together. No doubt, there is a specific assertion in paragraph 6 of the plaint that the plaintiff was always ready to get the sale deed executed but this alone will not be sufficient to hold that she was always willing and ready to perform her part of the contract. The conclusions have to be arrived at taking into consideration the conduct of the parties and not merely on the assertion in a single paragraph in the plaint. No doubt, the finding by the two Courts regarding willingness and readiness is a concurrent finding against the appellant but since the question is not only factual but a mixed question of fact and law and Section 16(c) of the Specific Relief Act has to be specifically pleaded and established by a person who wants to get the relief and that too an equitable one, i.e., a decree for specific performance of contract which is admittedly detrimental to the vendor. The agreement itself entitles the plaintiff to get the sale deed executed by stipulated date, i.e., 30.4.1992 and in the event of failure, she had a right to get it done through the Court. The defendant could not have objected whatsoever if the plaintiff had approached the Court for getting the sale deed executed. The documents clearly established that no effort whatsoever was made till the first notice was given on 2.8.1994 that was after more than two years of lapse of time frame of the agreement and the suit was instituted only after four years of the first notice, i.e., 4.9.1998. Both the Courts have failed to consider this lackadaisical attitude of the plaintiff and delay in filling of the suit which is very necessary aspect, while recording a finding on the issue of willingness and readiness to perform the contract by a party.
19. I agree with the submission made by the learned Counsel for the appellant that the findings recorded by the courts below are perverse and against the weight of evidence and without taking into consideration the entire facts and circumstances. The Apex Court in the case of
20. For the reasons discussed above, I am of the view that the findings on the question of willingness and readiness as well as burden of proof is absolutely perverse and the judgments of the courts below materially suffers from substantial error and the substantial question of law Nos. 2 and 3 are accordingly decided in favour of the defendant-appellant. The last argument regarding Sections 20 and 14 of the Specific Relief Act relate to the discretion of the Court. The defendant-appellant has specifically pleaded that he is a retired man having huge family and agriculture is only source of livelihood which includes the disputed land. Besides, the plaintiff has paid only Rs. 15,000 as far back as in the year 1991 at the time of execution of deed of agreement. The plaintiff has other business. She has admitted in her statement that she is partner of her husband''s firm and, therefore, the principles laid down in a catena of decisions that comparative hardship should necessarily be taken into consideration while passing a decree for specific performance. The Court is not bound to grant relief merely because it is lawful to do so. The only embargo is that discretion of the Court should not be arbitrary but guided by sound and reasonable judicial principles. The findings recorded by the two Courts on the quantum of relief is also inadequate, the Courts were liable to take into consideration that this was a case where the plaintiff could have been compensated adequately otherwise. The grant for decree for specific performance of contract is not automatic and the Courts are liable to consider whether it will be just, fair and equitable. The Courts should be guided by principles of just, equity and good conscience. The Apex Court in the case of
21. In view of what has been stated above, the judgments of the courts below suffers materially from an error of law. The substantial questions of law materially effects the rights of the appellant and, therefore, the judgments and decree dated 22.3.2007, passed by the Additional District Judge Court No. 3, Bhadohi and 4.9.1998 passed by Civil Judge (Senior Division) Bhadohi are quashed. The plaintiff-respondent is entitled to recover double amount of earnest money, i.e., Rs. 30,000 (Rs. 15,000 towards principal amount and Rs. 15,000 towards Interest) within a period of four months from the date a certified copy of this Judgment is produced.
22. The appeal succeeds and is allowed. There shall be no order as to costs.
