Biswanath Ghosh v. Gobinda Ghosh Alias Gobindha Chandra Ghosh (SC) BS534714
SUPREME COURT OF INDIA

Before:- Jagdish Singh and M.Y. Eqbal, JJ.

Civil Appeal No. 3672 of 2007. D/d. 14.3.2014.

Biswanath Ghosh (Dead) By Lrs. and others - Appellants

Versus

Gobinda Ghosh Alias Gobindha Chandra Ghosh and others - Respondents

For the Appellants :- Mr. Shekhar Kumar, Advocate.

For the Respondents :- Mr. Bijan Kumar Ghosh, Advocate.

A. Specific Relief Act, 1963 Section 16(c) Readiness and Willingness - Plaintiffs taking a loan of L 3000/- from defendants and executing sale deed of land - On the same day another agreement was also entered into wherein parties stipulating terms of re-conveyance on payment loan amount - Before expiry of time stipulated for re-conveyance in the agreement plaintiffs sent a notice requesting the seller to execute sale deed - Defendant replied that he will execute the sale deed, but asked for some time - Again a letter was sent by plaintiff and respondent sent a similar reply - Plaintiff filing suit for specific performance - Decree for specific performance passed in favour of plaintiff - Held ;-

[Paras 33 and 34]

B. Civil Procedure Code, Order 41 Rule 3 - Memorandum of appeal - If a memorandum of appeal arising out from an appellate decree is not drawn up in the manner provided in the Code, the Court may reject the memorandum of appeal or return the same for the purposes of being amended within the time fixed by the Court.

[Paras 19 and 20]

C. Specific Relief Act, 1963, Sections 16(c) and 20 - Readiness and willingness - Suit for specific performance -

[Para 23]

D. Civil Procedure Code, Section 100 - Substantial question of law - Second appeal before High Court - High Court admitted the appeal but no substantial question of law framed and passed an order that appeal shall be heard on all the grounds and passed a Judgment in the facts of case - Judgment of High Court set aside - Held :-

[Paras 22 and 23]

E. Specific Relief Act, 1963, Sections 16(c) and 20 - Suit for specific performance of contract - Plaintiff must be able to show that he is ready and willing to carry out those obligations which are in fact part of the consideration for the undertaking of the defendant.

[Para 26]

Cases Referred :-

Ardeshir Mama v. Flora Sassoon, 55 IA (PC) 360.

Cort and Gee v. The Ambergate, Nottingham and Boston and Eastern Junction Railway Company, (1851) 17 Queen's Bench Reports 127.

Gurdev Kaur v. Kaki, 2006(2) RCR (Civil) 561 : (2007)1 SCC 546.

Kedar Lal Seal v. Hari Lal Seal, AIR 1952 Supreme Court 47

Maksud Ali v. Eskandar Ali, 16 DLR (1964) 138.

Mst. Sugani v. Rameshwar Das, 2006(4) RCR (Civil) 319 : AIR 2006 Supreme Court 2172.

Reserve Bank of India v. Ramkrishna Govind Morey, AIR 1976 Supreme Court 830.

Sasikumar v. Kunnath Chellappan Nair, 2005(4) RCR (Civil) 715 : (2005)12 SCC 588.

Syed Dastagir v. T.R. Gopalakrishna Setty, 1999(3) RCR (Civil) 643 : (1999)6 SCC 337.

JUDGMENT

M.Y. Eqbal, J. - This appeal is directed against the judgment and order dated 28.3.2005 passed by Calcutta High Court in S.A. No. 244 of 1987 whereby the judgment and decree passed by the Trial Court as also the Appellate Court has been reversed and the suit was dismissed holding that the suit itself was barred by limitation and lack of relevant pleading and evidence disentitle the plaintiff-appellant to get a decree for specific performance and for re-conveyance of the suit property.

2. The facts of the case lie in a narrow compass.

3. The plaintiffs-appellants in need of money took a loan of L 3,000/- from the defendants-respondents and executed a registered Kobala dated 24.11.1964. On the same day, a registered Ekrarnama was also executed between the parties stipulating the terms of re-conveyance on payment of the loan amount by the appellants to the respondents.

4. In the year 1970, the appellants filed a suit being Title Suit No. 215 of 1970 against the defendants before the Sub-Divisional Munsif, Bangaon under Section 36 of the Bengal Money Lenders Act, 1940. The said suit was resisted by the defendants-respondents, stating therein that the aforesaid sale deed executed by the plaintiffs was out an out-sale of the suit property and possession was also delivered to the respondents. The learned Munsif in terms of the judgment dated 20.12.1973 dismissed the suit. The plaintiffs then filed appeal against the said judgment being Title Appeal No. 350 of 1974. The learned Additional District Judge, upon hearing the parties, allowed the appeal and remanded the matter back to the Trial Court with a direction to the Trial Court to allow the plaintiffs-appellants an opportunity for amending the plaint and to add prayer for specific performance of the contract and to pass fresh judgment in accordance with law.

5. Consequent upon the remand, the appellants amended the plaint by filing application on 1.3.1975 adding prayer for specific performance of contract to transfer the suit property in terms of the agreement for re-conveyance. The said application for amendment was allowed and the learned Munsif framed additional issues, and after considering the evidence on record finally decreed the suit holding that the suit was not barred by limitation. The court of Munsif held that the order for amendment related back to the date of institution of the suit and, therefore, the suit cannot be held to be barred by limitation. Aggrieved by the said judgment and decree, the defendants-respondents filed appeal being Title Appeal No. 836 of 1983, which was dismissed on merit by the First Appellate Court. The respondents then filed Second Appeal, which was finally allowed in favour of the defendant-respondents and the judgment and decree passed by both the courts of Munsif and the Additional District Judge have been set aside. Hence, this appeal by special leave by the plaintiff-appellants.

6. From the impugned judgment passed by the High Court it appears that the High Court formulated the following substantial questions of law and considered the same while allowing the appeal :

7. Before we proceed with the matter, it would be proper to first go through the judgment of remand passed by the Additional District Judge in first round of appeal being Title Appeal No. 350 of 1974, which was preferred against the judgment passed by Munsif dismissing the suit of the plaintiffs-appellants. From perusal of the judgment, it reveals that both parties made their submission on the interpretation of two documents, namely Kobala and the agreement of re-conveyance. It also reveals that there were exchange of letters (Exhibit `B' and `B1') whereupon the defendants-respondents in the reply letter expressed their willingness to reconvey the land but after harvest of aushpaddy on the suit land. Thereafter, the plaintiff issued another letter dated 6.6.1968 agreeing to have conveyance of the suit land after harvest on payment of L 3000/- (Exhibit `B2'). The defendant also replied to such letter (Exhibit `B3') agreeing to reconvey the suit land after the harvest.

8. On the basis of these exchanges of letters and in the facts and circumstances of the case, the Appellate Court held that the plaintiff-appellants should be given opportunity to have specific performance of contract in terms of the agreement. The relevant portion of the finding and the order passed in the appeal is extracted hereinbelow :

ORDERED

9. From the finding recorded by the Additional District Judge in the aforementioned judgment of remand, it is evidently clear that a direction was issued to the learned Munsif to allow the plaintiff to amend the plaint on payment of cost of L 30/-. The Appellate Court also gave opportunity to the defendants-respondents for filing additional written statement.

10. In terms of the aforesaid judgment, the plaint was amended and a relief for a decree of specific performance was added in the said suit. The learned Munsif, after framing additional issue and considering the facts and evidence on record, decreed the suit for specific performance holding that the suit was not barred by limitation. While passing the decree, the plaintiff-appellant was directed to deposit consideration amount of L 3,000/-.

11. Learned Munsif held that after the amendment was allowed and relief for decree of specific performance was added, it should be deemed that the suit for specific performance was filed on the date of institution of the suit i.e. 7.5.1970.

12. Aggrieved by the said judgment and decree passed by the Munsif, the defendants-respondents preferred an appeal being Title Appeal No. 836 of 1983. The said appeal was heard and finally dismissed by the First Appellate Court holding that the suit was well within the period of limitation and it was not barred by limitation inasmuch as the amendment of the plaint related back to the date of the presentation of the plaint.

13. The defendants-respondents then assailed the judgment by filing second appeal being S.A. No. 244 of 1987. The High Court, as stated above, reversed the finding given by the Trial Court and the Appellate Court and set aside the same by allowing the appeal.

14. From perusal of the judgment passed by the High Court, it reveals that the High Court, after referring Section 16 and Section 20 of the Specific Relief Act and relying on the decision of the Supreme Court, came to the conclusion that since the readiness and willingness have not been averred and proved, both the Trial Court and First Appellate Court committed error in decreeing the suit for specific performance. The High Court further observed that by converting a suit under Section 36 of the Bengal Money lenders Act into a suit for specific performance, basically the nature and character of the suit was changed and such amendments have been wrongly allowed in favour of the plaintiffs-appellants.

15. Mr. S.B. Sanyal, learned senior counsel appearing for the appellant, vehemently contended that the impugned judgment of the High Court is vitiated in law for not following the mandatory requirements of Section 100 of the Code of Civil Procedure (in short "Code"). As a matter of fact, the High Court has adopted wrong procedure in dealing with the second appeal.

16. Mr. Sanyal further contended that the High Court while entertaining the appeal for admission has to formulate substantial question of law involved in the said appeal for consideration and only after giving notice to the respondents an opportunity of hearing on those substantial questions of law, shall finally decide the appeal. In this connection, learned senior counsel relied upon the decision of this Court in the cases of Sasikumar & Ors. v. Kunnath Chellappan Nair & Ors., 2005(4) RCR (Civil) 715 : (2005)12 SCC 588 and Gurdev Kaur & Ors. v. Kaki & Ors., 2006(2) RCR (Civil) 561 : (2007)1 SCC 546. We find force in the submission of Mr. Sanyal.

17. Section 100 of the Code lays down the provision with regard to second appeal which reads as under :-

18. From bare reading of the aforesaid provision it is manifestly clear that an appeal shall lie to the High Court from an appellate decree only if the High Court is satisfied that the case involves a substantial question of law. It further mandates that the memorandum of appeal precisely states the substantial question of law involved in the appeal. If such an appeal is filed, the High Court while admitting or entertaining the appeal must record its satisfaction and formulate the substantial question of law involved in the appeal. The appeal shall then be heard on the questions so formulated and the respondent shall be allowed to argue only on those substantial questions of law. However, proviso to this section empowers the court to hear on any substantial question of law not formulated after recording reasons.

19. Order 41, Rule (3) of the Code is also worth to be quoted hereinbelow :-

20. It is, therefore, clear that if a memorandum of appeal arising out from an appellate decree is not drawn up in the manner provided in the Code, the Court may reject the memorandum of appeal or return the same for the purposes of being amended within the time fixed by the Court.

21. In the instant case what the High Court has done is evident from its order dated 13.1.1987. The order reads as under :-

22. The aforesaid order shows that the High Court while admitting the appeal has not formulated any substantial question of law and it was only after the arguments were concluded some questions of law were formulated and the appeal was decided by passing the impugned judgment.

23. The law is well settled by catena of decisions of this Court that jurisdiction of the High Court to entertain a second appeal is confined only to such appeals which involves substantial question of law. Section 100 of the Code casts a mandate on the High Court to first formulate substantial question of law at the time of admission of the appeal. In other words, a duty is cast on the High Court to formulate substantial question of law before hearing the appeal. Since the same has not been done, the impugned judgment is vitiated in law.

24. On the question of readiness and willingness, the High Court after relying upon some decisions of this Court allowed the appeal and set aside the judgment and decree of the Trial Court and the First Appellate Court. The only finding recorded by the High Court is extracted hereinbelow :-

25. In our considered opinion, the High Court has committed error of law in setting aside the judgment and decree of the Trial Court and the First Appellate Court on the basis of aforesaid finding.

26. It is well settled proposition of law that in a suit for specific performance the plaintiff must be able to show that he is ready and willing to carry out those obligations which are in fact part of the consideration for the undertaking of the defendant. For the compliance of Section 16(c) of the Act it is not necessary for the plaintiff to aver in the same words used in the section i.e. ready and willing to perform the contract. Absence of the specific words in the plaint would not result in dismissal of the suit if sufficient fact and evidence are brought on record to satisfy the court the readiness and willingness to perform his part of the contract. In the case of Kedar Lal Seal & Anr. v. Hari Lal Seal, AIR 1952 Supreme Court 47, this Court has held that the Court would be slow to throw out the claim on mere technicality of the pleading. The Court observed :

27. In the case of Syed Dastagir v. T.R. Gopalakrishna Setty, 1999(3) RCR (Civil) 643 : (1999)6 SCC 337, this Court dealing with a similar issue observed :

28. In the case of Mst. Sugani v. Rameshwar Das and Anr., 2006(4) RCR (Civil) 319 : AIR 2006 Supreme Court 2172, this Court observed that

29. In the case of Ardeshir Mama v. Flora Sassoon, 55 IA (PC) 360, their Lordships of the Judicial Committee observed that

30. Following the aforesaid principle, the Pakistan Supreme Court in the case of Maksud Ali & Ors. v. Eskandar Ali, 16 DLR (1964) 138, observed as under :

31. In the case of Cort and Gee v. The Ambergate, Nottingham and Boston and Eastern Junction Railway Company, (1851) 17 Queen's Bench Reports 127, the Court observed that

32. In sum and substance, in our considered opinion, the readiness and willingness of person seeking performance means that the person claiming performance has kept the contract subsisting with preparedness to fulfill his obligation and accept the performance when the time for performance arrive.

33. In the background of the principles discussed hereinbefore, we shall now consider the conduct of the plaintiffs-appellants and the act done by them in performance of their part of obligations. These may be summarised as under :

"NOTICE

Sd/-

Rabindra Nath Dutta

Advocate

29.4.68"

Sd/-

Narendra Nath Basu

Advocate, Bongaon

Dated 6.6.68

P.S. Gaighata, Mouza-

Total 1.17 acre of land. Sd/-

34. From the aforementioned sequence of facts and events, it can be safely inferred that the plaintiffs-appellants were always ready and willing to discharge their obligation and perform their part of the agreement. In our considered opinion, the undisputed facts and events referred to hereinabove shall amount to sufficient compliance of the requirements of Section 16(c) of the Specific Relief Act.

35. Taking into consideration the entire facts and circumstances of the case and the law discussed hereinabove, in our considered opinion the impugned judgment passed by the High Court cannot be sustained in law.

36. For the aforesaid reasons, the appeal is allowed, the impugned judgment passed by the High Court is set aside and the judgment and decree of the First Appellate Court confirming the judgment and decree passed by the Munsif are restored. However, in the facts of the case, there shall be no order as to costs.

Appeal allowed.