# Rahmat Ali v. Rashid & Ors

- **Citation:** (2020) 9 ILRA 214
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-07-31
- **Case number:** First Appeal No. 59 of 1978
- **Bench:** Attau Rahman Masoodi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rahmat-ali-v-rashid-ors-45932
- **Pages:** 15

## Headnote

R.S. Tripathi, Mohd. Abid Ali, Mohd. Adil
Khan, Ram Ujagir Verma, V.V. Tripathi, Z.
Rahman

Suit for specific performance decreed in favour
of Respondent-Plaintiff-against which Appeal
filed-substitution of Legal Heir was objected
not to be a rightful heir-Admission of
Respondent that the Legal Heir is son of the
Original Plaintiff's sister-his right could not be
ruled out altogether-decree upholded-relief
modified by increasing the sale consideration.

First Appeal dismissed. (E-9)

Cases referred: -

## Text

_Characters 0–39,924 of 52,216. This is a partial read: ask again with offset=39924 for what follows._

214 INDIAN LAW REPORTS ALLAHABAD SERIES
to the claimants/ appellants under the order
of the Tribunal dated 26.08.2010 is
accordingly enhanced and award stands
modified to the extent indicated herein
above.
----------
(2020)09ILR A214
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.07.2020

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.

First Appeal No. 59 of 1978

Rahmat Ali ...Appellant
Versus
Rashid & Ors. ...Respondents

Counsel for the Appellant:
M.A. Khan, Mohd. Arif Khan, Mohiuddin

Counsel for the Respondents:
R.S. Tripathi, Mohd. Abid Ali, Mohd. Adil
Khan, Ram Ujagir Verma, V.V. Tripathi, Z.
Rahman

Suit for specific performance decreed in favour
of Respondent-Plaintiff-against which Appeal
filed-substitution of Legal Heir was objected
not to be a rightful heir-Admission of
Respondent that the Legal Heir is son of the
Original Plaintiff's sister-his right could not be
ruled out altogether-decree upholded-relief
modified by increasing the sale consideration.

First Appeal dismissed. (E-9)

Cases referred: -

1. Dashrath Rao Kate Vs Brij Mohan Srivastava,
(2010) 1 SCC 277

2. Gulabchand Chotalal Parik Vs St. of Guj., AIR
1965 SC 1153

(Delivered by Hon'ble Attau Rahman
Masoodi, J.)

1. The defendants' first appeal
instituted under Section 96 CPC has arisen
against the judgement and decree rendered
by the trial court decreeing the suit for
specific performance in favour of the
respondents-plaintiff and the same has
come up for hearing after more than 40
years.

2. Heard Sri Mohd. Arif Khan,
learned Senior Advocate assisted by Sri
Mohiuddin Khan for the appellant and Sri
Mohd. Abid Ali assisted by Smt. Atiya
Abid for the respondents.

Brief description of the lis and
parties

3. The subject matter involved in the
Regular Suit No. 14 of 1971 filed by the
predecessor in interest of respondents no.
1/a to 1/i is a house property which was
agreed to be sold through an oral agreement
pursuant to which part payment was made
under a receipt duly witnessed. Nonperformance of the agreement gave rise to
the suit.

4. The case set up by the plaintiff was
that for a sum of Rs. 12000/- the house in
dispute was orally agreed to be sold by late
Ashraf and his wife Ahmadi who were
impleaded as defendants no. 1 and 2
respectively in the suit. Defendant no. 1
died during pendency of the suit whereas
defendant no. 2 has died during pendency
of the present appeal. Defendant no. 2 who
was appellant no. 1 herein consequent upon
her death has come to be substituted by
appellants no. 1/1 and 1/2 by transposition.
The occasion for transposition arose for the
reason that the two daughters of main
contesting defendants (late Ashraf and
Ahmadi) though being substituted as
defendants in place of late Ashraf while the
9 All. Rahmat Ali Vs. Rashid & Ors.
215
suit
was
pending,
were
nevertheless
impleaded as respondents no. 2 and 3 in the
present appeal. As to why the two
daughters of original defendants no. 1 and
2 did not join the appellant no. 1 (mother)
through this appeal at the time of
approaching
this
Court
remains
unexplained. Defendants no. 3 and 4
entered into possession over the disputed
property allegedly as tenants pendente lite,
therefore, the real controversy insofar as
the oral agreement for specific performance
is concerned, is confined between the legal
heirs of appellant no. 1 viz. Appellant nos.
1/1 and 1/2 and respondent no. 1/a to 1/i.
Appellant no. 2 (defendant no. 4) who
admittedly was a tenant pendente lite had
also joined in the present appeal with
appellant no. 1 and after his death has come
to be substituted by appellants no. 2/1 to
2/12. The other defendants bound by the
principle of lis pendence have niether
contested the suit nor the present appeal,
hence their role is proforma.

5. From the array of parties described
above, it does appear as if the appeal is
rather strongly pursued by the legal heirs of
defendant no. 4 (tenant pendente lite) who
stands substituted by appellants no. 2/1 to
2/12. It is a case where the saying "Fishing
in the troubled waters" ("Aa bael mujhe
maar" in Hindi) completely fits in. It is the
tenants pendente lite who have rather
dragged on the pendency of this appeal is
well established from the order sheet and
affidavits exchanged.

Background of the case

6. It was averred in the plaint that one
Nazir Baksh had entered into an oral
agreement with one Ashraf and his wife
Ahmadi for sale of a house property
bearing no. 580 (old no. 471) situate in
Mohalla Atal Behari Nagar, Pargana, Tehsil
and District Unnao for a sum of Rs.
12000/- out of which a sum of Rs. 4000/-
was paid in advance and Rs. 2400/-
towards redemption of mortgage created in
favour of one Shiv Narain Awasthi and in
this manner a sum of Rs. 6400/- was
acknowledged to be received by late Ashraf
through a receipt duly witnesseth on
11.1.1971. The remaining amount was
agreed to be paid at the time of executing
the sale deed and this was stipulated in the
receipt itself. Non performance of the
agreement on the part of late Ashraf and
Smt. Ahmadi gave rise to a registered
notice sent on 18.3.1971 which was duly
served. The promissors having denied any
such agreement, refused to comply with the
notice by setting up a different story in
response, therefore, a suit for specific
performance
was
filed
before
the
competent civil court.

7. During the lifetime of the original
plaintiff viz. late Nazir Baksh, it appears
that the suit proceeded up to the stage of
framing of issues 1 to 7 but before the same
could be decided in the light of evidences
led by the parties, the sole plaintiff died on
23.2.1976. Due to the death of sole
plaintiff, an application for substitution i.e.
217A came to be filed by one Rashid who
in the plaint was stated to be the son by the
original plaintiff himself, as such the
application was allowed on 15.10.1976.
The substitution of Rashid in place of the
sole plaintiff by an order passed under
Order XXII Rule 3 CPC on 15.10.1976 was
objected on the same date by filing
objections i.e. 43/D. The objections so filed
were rejected on 22.11.1976 looking to the
version set out in the plaint by the original
plaintiff. The substitution of Rashid was
thus confirmed. The order passed on
22.11.1976 was assailed by the contesting
216 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent under Section 115 CPC by
filing a revision which was allowed and the
matter was remanded back to the trial court
for determination of the question of legal
representative/heirship as son under Order
XXII Rule 5 CPC. The parties availed full
opportunity of leading evidence and the
issue was contested tooth and nail.

8. After due consideration of the
entire evidence placed on record, the trial
court decided the question in favour of
Rashid holding him to be the son of
original plaintiff viz. late Nazir Baksh. An
exhaustive judgement/order was rendered
by the trial court on 4.3.1977 following a
procedure akin to trial and the same was
questioned by the contesting defendant
(Ahmadi) before the revisional court in
Civil Revision No. 19 of 1977 under
Section 115 CPC.

9. The revisional court yet by a
detailed judgement rejected the civil
revision and thereby affirmed the findings
of the trial court on the issue of substitution
of Rashid as son in place of the deceased
sole plaintiff. The judgement and order
rendered by the revisional court on
23.5.1977 attained finality. It is after the
issue fallen for consideration under Order
XXII Rule 5 CPC had attained finality that
an amendment application was filed by
Rashid to straighten the pleadings and the
formal amendment so prayed for was
allowed. The contesting defendant no. 2
also sought amendment in the written
statement which was allowed. Parties
carried out the amendments in their
respective pleadings. Amended copies of
the pleadings were accordingly filed before
the trial court.

10. Interestingly, issues no. 1 to 5
were framed on 25.1.1973 i.e. during
lifetime of the original plaintiff who died
on 23.2.1976. Issues no. 3 and 5 related to
the admissibility of oral agreement and
court fee. The trial court decided both the
issues in favour of the plaintiff by an order
passed on 21.5.1973. This position is
evident from the impugned trial court
judgement itself. Issues no. 6 and 7 were
also framed during original plaintiff's
lifetime i.e. on 19.2.1975. All these issues
were framed having due regard to the
written statements filed by the defendants
no. 1 and 2 separately wherein they had
denied Rashid to be the son of late Nazir
Baksh and had rather termed him to be the
son of original plaintiff's sister whose name
was not disclosed in any of the written
statements.

11. At the time when the amended
pleadings were taken on record, it appears
that a copy of the additional written
statement
sworn
on
29.11.1976
was
simultaneously filed by the pendente lite
tenant (defendant no. 4) jointly with Smt.
Ahmadi (defendant no. 2) setting out a
pedigree for the first time wherein the
newly substituted plaintiff Rashid was
shown as son of one of the unnamed sisters
of the original plaintiff. Issues no. 8, 9 and
10 were nonetheless framed by the trial
court on 29.11.1976 in the light of
pleadings on record.

12. Later on the pendente lite tenant
jointly with the defendant no. 2 (Smt.
Ahmadi) sought amendment in the written
statement filed by her much earlier through
an application made on 10.9.1977 which
was
allowed.
The
newly
substituted
plaintiff Rashid in the amendment sought to
be made for in the written statement was
now shown to be the son of one Bhagbari
in the family tree and this is how the name
of original plaintiff's sister surfaced.
9 All. Rahmat Ali Vs. Rashid & Ors.
217

13. It is in the light of above
amendment in the written statement that
issues number 11 and 12 were further
framed in the suit on 14.9.1977 which for
ready reference may be extracted below:

"(11) Whether Sri Rashid is the
son of Sri Nazir Bux? If so, its effect?

(12) Whether the plea covered by
issue no. 11 is barred by res judicata? If
so, its effect?"

14. Parties were allowed to lead
additional evidence on the issues framed.
The trial court having regard to the
evidence on record decided all the issues in
favour of the respondents no. 1/a to 1/i i.e.
plaintiff. The suit for specific performance
of the oral agreement dated 11.1.1971 was
accordingly decided and decreed in favour
of the plaintiff Rashid survived by his legal
heirs herein as respondent no. 1/a to 1/i.

15. The trial court rendered the
judgement and decree in favour of the
plaintiff on 23.5.1978. The operative part of
the judgement and decree reads as under:

"The suit of the plaintiff for
specific performance of contract of sale in
respect of the house in suit is decreed with
costs against the defendants. The plaintiff is
directed to deposit Rs. 5600/- the remaining
price in this court to the credit of
defendants 1/1 to 1/4 and 2 within two
months. After this amount is deposited by
the plaintiff, the defendants 1/1 to 1/4 and 2
are hereby ordered to execute a sale deed
and to get the same registered in favour of
the plaintiff in respect of the house in suit
within a period of three months. After the
sale deed is executed all the defendants are
hereby directed to hand over possession to
the plaintiff over the house in suit within 15
days. If the defendants fail to comply the
aforesaid order the decree shall be
executed against the defendants through
process of the court at the costs of the
defendants according to law."

16. It is against this judgement/decree
that the present appeal under Section 96
CPC has come to be filed and the same was
admitted by this Court on 2.9.1978. An
order of stay of the decree subject to
payment of an amount fixed by the court is
operating

Points of determination

17. Looking to the mandate of Order
XLI
Rule
31
CPC,
the
points
of
determination which arise for consideration
are; (i) as to whether the trial court has
rightly construed the principle of res judicata
between the parties on the issue of Rashid
being the son of the original plaintiff late
Nazir Baksh, if yes, its consequence; (ii) as to
whether the trial court having framed issue
no. 11 and 12 after finality of order passed
under Order XXII Rule 5 CPC has erred in
not delving into issue no. 11 on the basis of
additional evidence adduced and exhibited in
trial; (iii) as to whether the trial court failed
to frame an issue in the light of Section 16 of
the Specific Relief Act to the effect that the
plaintiff had failed to aver his readiness and
willingness to perform the agreement and
prove the same; and (iv) as to whether the
evidence on record was rightly appreciated
by the trial court so as to conclude all the
issues in favour of the respondents no. 1/a to
1/i herein i.e. plaintiff and the suit was rightly
decreed.

Discussion
on
the
points
of
determination

18. On the aspect of the principle of
res judicata it has strenuously been argued
218 INDIAN LAW REPORTS ALLAHABAD SERIES
by learned Senior Counsel for the appellant
that the dispute decided within the scope of
Order XXII Rule 5 CPC is solely for the
purpose of continuity of proceedings and
the issue in relation to legal representation
as son framed in the suit was nevertheless
liable to be adjudicated upon in the light of
additional evidence placed on record.

19. Sri Mohd. Arif Khan, learned
Senior Counsel for the appellants in order
to buttress his submissions, has placed
reliance upon a catena of judgements to
show that an order passed under Order
XXII Rule 5 CPC would merely confer a
right of continuing the suit proceedings but
would not have a bearing upon the real
issue of Rashid being treated as son of the
original plaintiff, if arisen for trial. The
submission put forth is that an order passed
under Order XXII Rule 5 CPC is summary
in nature. It is thus urged that once an issue
was subsequently framed as to whether
Rashid was a son of the sole plaintiff late
Nazir Baksh or not, the trial court
notwithstanding the finality of earlier order
passed under Order XXII Rule 5 CPC,
ought to have considered the additional
evidence led by the appellant-defendants
which was duly exhibited and non
consideration of the same has thus resulted
into a grave error for which the judgement
rendered by the trial court stands vitiated in
the eye of law.

20. Taking up the first two points of
determination together, the Court may note
that the suit instituted by late Nazir Baksh
and
upon
his
death
by
his
legal
representative
Rashid
was
for
the
performance of an oral agreement. The
question of legal heir as a son had arisen
incidentally due to the death of the original
plaintiff late Nazir Baksh who did not leave
behind any other child. In order to get rid
of the suit proceedings, the contesting
defendants
chose
to
object
to
the
substitution of Rashid in place of the sole
plaintiff questioning his right to continue
the proceedings on the ground that the
cause to sue as a result of the death of
original plaintiff had since extinguished
being it a personal claim of late Nazir
Baksh, therefore, the applicant Rashid not
being his son had no right to continue the
proceedings inasmuch as the right to sue
did not devolve upon him.

21. It is in this background that the
question as to the legal representative or
legal heir as son of the original plaintiff late
Nazir Baksh arose before the trial Court. In
nutshell a dispute as to the devolution of
the right to sue arose before the trial court
for consideration and the same was decided
within the scope of Order XXII Rule 5
CPC which for ready reference is extracted
below:

"5. Determination of question
as to legal representative.

Where a question arises as to
whether any person is or is not the legal
representative of a deceased plaintiff or a
deceased defendant, such question shall be
determined by the Court:

Provided that where such question
arises before an Appellate Court, that Court
may, before determining the question, direct
any subordinate Court to try the question and
to return the records together with evidence,
if any, recorded at such trial, its findings and
reasons therefor, and the Appellate Court may
take
the
same
into
consideration
in
determining the question."

22. This Court may note that the
proviso to Order XXII Rule 5 CPC has
come to be appended by Amendment Act
No. 104 of 1976 w.e.f. 1.2.1977.
9 All. Rahmat Ali Vs. Rashid & Ors.
219

23. From a plain reading of the
aforesaid provision, it is clear that the
question of being a legal representative
may arise between the parties in a variety
of circumstances. In the present case the
substitution of Rashid in place of the
original plaintiff upon his death was
initially decided summarily by an order
passed by the trial court on 22.11.1976.
This order was challenged in the revisional
proceedings under Section 115 CPC by the
contesting defendants i.e. predecessor in
interest of appellants no. 1/1 and 1/2. The
revision was allowed and the question was
remitted to the trial court for decision
afresh after affording opportunity to the
parties for leading evidence. This clearly
implies that parties to the suit on the issue
of devolution of right to sue as a legal
representative/son
were
granted
due
opportunity to lead evidence. The question
as to whether Rashid was the son of late
Nazir Baksh or not, the same was
concluded after a full fledged opportunity.
The procedure observed for determination
of such an issue, as a matter of fact, was
akin to regular trial and cannot be
understood purely summary in nature. In
the present case, however, the dispute went
up to the revisional court. Detailed
judgement
on
the
aspect
of
legal
representation/heirship
favourable
to
Rashid was also rendered by the revisional
court which attained finality.

24. This Court from a catena of
judgements relied upon by learned counsel
for the appellants may profitably take note of
paragraph 15 of the judgement reported in
(2008) 8 SCC 521 (Jaldi Sugna (deceased
through Lrs) v. Satya Sai Central Trust
and others, which reads as under:

"15. Filing an application to
bring the legal representatives on record,
does not amount to bringing the legal
representatives on record. When an LR
application is filed, the court should consider
it and decide whether the persons named
therein as the legal representatives, should be
brought on record to represent the estate of
the deceased. Until such decision by the
court, the persons claiming to be the legal
representatives have no right to represent the
estate of the deceased, nor prosecute or
defend the case. If there is a dispute as to who
is the legal representative, a decision should
be rendered on such dispute. Only when the
question of legal representative is determined
by the court and such legal representative is
brought on record, it can be said that the
estate of the deceased is represented. The
determination as to who is the legal
representative under Order 22 Rule 5 will of
course be for the limited purpose of
representation of the estate of the deceased,
for
adjudication
of
that
case.
Such
determination for such limited purpose will
not confer on the person held to be the legal
representative, any right to the property
which is the subject matter of the suit, vis-avis other rival claimants to the estate of the
deceased."

25. In the case at hand, it is significant
to note that no other person has claimed any
hereditary or testamentary right in the suit
property except Rashid who was stated to be
the son by the original plaintiff himself in the
plaint. The substitution of Rashid was
strongly opposed by the appellants disputing
his heirship as son. The case set up by the
defendants at the trial stage of suit
proceedings as mentioned above was that
Rashid was rather the son of Bhagbari who
was shown as the sister of the original
plaintiff late Nazir Baksh in the pedigree.

26. This Court may note that even if it
is assumed for the sake of argument that
220 INDIAN LAW REPORTS ALLAHABAD SERIES
Rashid was the son of original plaintiff's
sister yet his substitution in place of the
original plaintiff late Nazir Baksh could not
be questioned by the defendants for their
own admission. In Mohammedan Law even
a deceased sister's son was an interested
party with whom the right to represent the
estate
i.e.
the
suit
property
would
intermeddle upon the death of sole plaintiff.
In view of the own admission of the
appellants that Rashid was son of original
plaintiff's sister, the said applicant did not
stand ousted from being recognised a legal
representative
altogether.
''Legal
representative' is a wider term inclusive of
heirs by succession or any person claiming
testamentary rights. Mohammedan Law
does not recognise the concept of adoption,
therefore, the plea as to whether Rashid
was the son of original plaintiff late Nazir
Baksh or not seems to have been pressed,
as if disproving the said fact would
frustrate the suit proceedings altogether but
such is not the consequence insofar as the
case at hand is concerned. A legal
representative may have an exclusive right
whether hereditary or testamentary or he
may have a joint hereditary or testamentary
right in the disputed property left behind by
a
deceased
plaintiff.
In
both
the
eventualities, an interested person having a
limited heritable or testamentary claim in
the suit property would have a right to
represent the estate or the suit property and
the right to sue would stand devolved for
the entire relief sought in the plaint. In the
present case, however, the defendants in
any view of the matter were duty bound to
perform the agreement giving rise to the
suit whether pursued by a person having
exclusive right or a limited claim. In either
of the two situations, the promissor in the
present case was bound to perform the
agreement and it is for this reason that the
law permits a legal representative to
continue the proceedings for the entire
relief, irrespective of the extent of share or
interest based on which the right devolves
giving life to the cause. Moreover, the
question as to whether Rashid was the son
of late Nazir Baksh or not had no direct
bearing upon any adversarial hereditary or
testamentary claim between the parties
except for the continuity of proceedings.
This question was concluded between the
parties after due opportunity of leading
evidence which the parties availed of
before the trial court. The trial court as well
as the revisional court concluded the issue
in favour of Rashid after considering the
evidences
in
detail.
The
judgement
rendered by the trial court under Order
XXII Rule 5 CPC attained finality with the
rejecting of civil revision on 23.5.1977.

27. The principle of res judicata
binding between the parties on a question
being tried under Order XXII Rule 5 CPC
is more succinctly dealt with by the apex
court in the case reported in 2010 (1) SCC
277 (Dashrath Rao Kate Vs. Brij Mohan
Srivastava) wherein an order passed
between the parties under Order XXII Rule
5 CPC upon leading of evidence was held
binding and not open to trial between the
same parties. The order of this description,
of course, would not be binding upon a
non-party or a party having a direct
adversarial hereditary or testamentary rival
claim determination whereof may not stand
affected under the principle of res judicata.
This Court would gather that the purpose of
the proviso appended to the Rule embodied
under Order XXII Rule 5 is none other than
to bind the parties for bringing the
proceedings to its logical conclusion.

28. The principle of res judicata has
transcended to serve the object of law from
very old times traceable to a judgement of
9 All. Rahmat Ali Vs. Rashid & Ors.
221
1776 taken note of by the apex court in the
case reported in AIR 1965 SC 1153
(Gulabchand Chotalal Parik v. State of
Gujarat). In para-33 of the apex court
judgement referred supra, the apex court
records as under:

"33. Before discussing the law of
res judicata as laid down in the Code of
Civil Procedure, we may refer to the
opinion of the Judges expressed in 1776 in
the Duches of Kingston's Case(1) to which
reference has been invariably made in most
of the cases to be considered by us. It was
said in that case :

"From the variety of cases
relative to judgments being given in
evidence in civil suits, these two deductions
seem to follow as generally true : first that
judgment of a Court of concurrent
jurisdiction, directly upon the point. is as a
plea, a bar, or as evidence conclusive,
between the same parties, upon the same
matter, directly in question in another
Court; secondly that the judgment of a
Court of exclusive jurisdiction, directly
upon the point, is, in like manner,
conclusive upon the same matter, between
the same parties, coming incidentally in
question in another Court, for a different
purpose. But neither the judgment of a
concurrent or exclusive jurisdiction is
evidence of any matter which came
collaterally in question, though within their
jurisdiction, nor of any matter incidentally
cognizable, nor of any matter to be inferred
by argument from the judgment."
It is
to be noticed that the opinion does not take
into account whether the earlier judgment
was in a suit or any other proceeding and
whether it was used as res judicata in
another suit or proceeding. The emphasis is
that the judgment be of a Court and that it
is relied upon as res judicata in another
Court. Of course, the essential conditions
that the judgment be directly upon the same
point which is for determination in the
subsequent suit and be between the same
parties are also to be satisfied. It is obvious
that the judgment of a Court of exclusive
jurisdiction is to be treated as res judicata
upon the same matter in another Court
which will not be a Court having
jurisdiction over the matter."

29. It cannot be disputed much that
decision
of
a
court/forum
following
summary procedure on an issue involved
directly between the parties is binding upon
the same parties in another proceedings of
the same nature while the courts exercise
exclusive jurisdiction. In the case of
concurrent jurisdiction exercisable equally
under Order XXII Rule 5 CPC, the
procedure available to the litigating parties
or the court is more than one. The parties or
the court may allow the question of
substitution
for
the
continuity
of
proceedings settle summarily between
parties or allow the same to be tried on the
basis of full fledged opportunity to lead
evidence. The purpose is to ascertain as to
whether the right to sue has devolved upon
an applicant or not besides survival of
cause.

30. Once the option of objections is
exercised by a party and the court protects
the opportunity of leading evidence, then in
that case, the same evidence or opportunity
to lead further evidence on the issue of
continuity of proceedings between the same
parties, the question must stand closed in
the exercise of concurrent jurisdiction even
at different stages of the same proceeding.
It is for this purpose alone that a proviso
has come to be appended to the Rule
embodied under Order XXII Rule 5 CPC.
Treating
the
proceedings
on
legal
representation under Order XXII Rule 5
222 INDIAN LAW REPORTS ALLAHABAD SERIES
CPC nevertheless summary between the
same parties would be against the spirit of
law and the very object of public policy
aiming to culminate the rights as final
between the parties. The right to represent
the proceedings once concluded under
Order XXII Rule 5 CPC, therefore, must
operate as res judicata between the same
parties without affecting the extent of the
rival hereditary or the testamentary rights
which does not appear to be the situation at
hand.

31. In the present case, according to
the
own
admission
of
contesting
respondents, Rashid is admitted to be the
son of the original plaintiff's sister
(Bhaghbhari) as such, the right to represent
the estate of late Nazir Baksh in the event
of his death howsoever minimal the claim
of sister's son may be, the same could not
be ruled out altogether. The devolution of
right to sue as son cropped up on the
strength
of
objections
filed
by
the
contesting respondents who failed to prove
their case in the proceedings under Order
XXII Rule 5 CPC. This Court in such a
situation does not find any justifiable fault
in the principle of res judicata as construed
and applied by the trial court simply
because the proceedings drawn under Order
XXII Rule 5 CPC are summary in nature.
This question would have had a relevance
only if the dependence of the continuity of
proceedings was solely dependent on the
determination of Rashid as son of the
original plaintiff and failure to prove the
same would entail a consequence of
abatement or the proceedings becoming
inoperative
for
want
of
a
legal
representative.

32. Once for the own admission of the
contesting defendants, neither of the two
consequences envisaged above follow, the
submission advanced by learned Senior
Counsel that the additional evidence
exhibited on issue no. 11 ought to have
been considered becomes fallacious and the
finality of order passed under Order XXII
Rule 5 CPC remains unquestionable. The
submission urged, therefore, does not hold
any water and is groundless.

33. This Court may note that the issue
as to whether Rashid was the son of
original plaintiff ought not to have arisen
once he was admitted by the appellants to
be the son of original plaintiff's sister and
for this admission too, the suit would not
abate. Secondly, the appellants had failed to
prove their case in the proceedings drawn
under Order XXII Rule 5 CPC and lastly
the said question did not have a direct
bearing on the heritable or testamentary
rights of any rival claimant.

34. This Court in the light of resultant
position as aforesaid may fruitfully refer to
Order XX Rule 5 CPC which reads as
under:

"5. Court to state its decision on
each issue.-- In suits in which issues have
been framed, the Court shall state its
finding or decision, with the reasons
therefor, upon each separate issue unless
the finding upon any one or more of the
issue is sufficient for the decision of the
suit."

35. The rule reproduced above clearly
provides for a discretion which a court is
permitted to exercise for deciding more
than one issue collectively once the
decision on a particular issue is sufficient
for the decision of suit. The trial court
having rightly construed and applied the
principle of res judicata in the present case
while deciding issue no. 12, was thus not
9 All. Rahmat Ali Vs. Rashid & Ors.
223
bound to record independent findings on
issue no. 11 taking note of the additional
evidences which stood barred by the
principle of res judicata. The exhibition of
the additional evidence on issue no. 11 was
thus of no avail to the appellants. The
decision on issue no. 12 within its sweep
rendered
the
requirement
of
any
independent findings on issue no. 11 as
nugatory. The observation is necessary for
the reason that the findings recorded on
issue no. 12 were good enough to continue
with the conclusion of suit proceedings. It
is for this reason that Order XIV Rule 2
CPC also supports the determination of a
legal issue before embarking on a factual
issue. In the present case the legal issue
once determined finally has rightly been
held binding between the parties.

36.

The
first
two
points
of
determination in view of what has been
observed
hereinabove
are
accordingly
decided against the appellants and in favour
of the respondent-plaintiffs. The findings
recorded by the trial court on the
construction
and
application
of
the
principle of res judicata are hereby
affirmed.

37. The second limb of arguments
relates to the aspect of plaintiffs having
failed to aver and prove the readiness and
willingness on their part to perform the
agreement. The submission put forth
proceeds on the premise of a question put
to
Rashid
(plaintiff)
during
cross
examination where he stated not to have
inherited any bank account or financial
status on the death of original plaintiff viz.
Late Nazir Baksh. There is no doubt that a
plaintiff in the case of an oral or written
contract while seeking a remedy of specific
performance of contract is bound to aver
and prove the readiness and willingness on
his part to perform the contract and the
legal position is fortified by virtue of
Section 16 of Specific Relief Act and
interpretation thereof in a catena of
judgements. Moreover, the question of
readiness and willingness to perform the
contract is a question of fact and law but
which must be pleaded by the plaintiff so as
to give rise to an issue in the light of
conduct of parties and the reply filed.

38. It is a settled position of law that
both the ingredients have to be satisfied by
a plaintiff while seeking remedy for the
specific performance of contract against a
promissor. In the present case, however,
when the notice for specific performance of
oral contract was sent on 18.3.1971 to the
predecessor in interest of appellant no. 1/1
and 1/2, namely, late Ashraf and his wife
late
Smt. Ahmadi,
they
denied
the
execution of any such oral contract with the
original plaintiff late Nazir Baksh and in
response to the legal notice proceeded to
set up a different case altogether. The very
existence of contract within the scope of
Section 10 of the Indian Contract Act, 1872
was denied and for this reason, the
aggrieved plaintiff instituted the suit
immediately
thereafter
on
31.5.1971.
Insofar as the willingness and readiness to
perform the contract is concerned, there
was a definite plea made in paragraph-9 of
the plaint to which there was a formal
denial in the background of a different
story pleaded in the additional pleas.

39. The case at hand involved rather a
peculiar situation where the promissors
denied the very fact of having entered into
an oral contract. The contesting defendants
stuck to the stand of denial in the written
statement without raising any counter claim
on the basis of reply to the legal notice. In
such a situation, the burden on the part of
224 INDIAN LAW REPORTS ALLAHABAD SERIES
the plaintiff was rather heavy to prove the
agreement of which the readiness and
willingness to perform though pleaded
remained unquestioned at all by the
defendants while replying to the legal notice
or in the written statements filed. Once the
very existence of agreement was denied by
the promissors in their written statement, the
issues that were vitally necessary for the
decision of the suit were rightly framed as to
the existence of contract between the parties
and its part performance. The readiness and
willingness to perform the contract at no
point of time was factually questioned or
doubted on the part of promissee who had
advanced more than half of the amount and
the same was proved on the basis of credible
evidence. The financial capacity for rest of
the part being it a small transaction could not
be doubted much, therefore, there was no
such prayer ever made by the appellantdefendants for framing of issues relating to
willingness and readiness on the part of the
plaintiff who had specifically pleaded the
same and to which there was a bald denial.
Issues no. 1 and 2 being the foundation of
dispute were accordingly framed between the
parties as under:

1. Whether plaintiff entered into
an oral agreement with defendants under
which the defendant agreed to sell the
property
in
suit
to
plaintiff
for
consideration of Rs. 12000/- as alleged?

2. Whether the plaintiff in part
performance of the contract paid Rs. 4000/-
as earnest money to defendant and paid off
the debt of Rs. 2400/- to Sri Narain, due to
Sri Narain from defendants no. 1 and 2 and
returned the mortgage deed to defendants
after obtaining the endorsement of full
satisfaction, as alleged?

40. Once the oral contract within the
meaning of Section 10 of the Indian
Contract Act, 1872, by itself was denied by
the contesting defendants, the question of
failure to frame an issue regarding the
readiness and willingness to perform the
contract would also not arise once the suit
was instituted soon after the legal notice
pleading the necessary facts. The question
of readiness and willingness to perform the
contract may have arisen when there was a
delay on the part of the promissee to
approach the court or when there was no
such plea on his part in the plaint. After the
death of original plaintiff, the successor in
interest viz. Rashid entered the witness box
and deposed his willingness and readiness
to perform the contract. The conduct on the
part of plaintiff was clear to meet the
ingredients of Section 16 of the Specific
Relief Act. To say that the trial court ought
to have framed the issue as regards the
willingness and readiness on the part of
promisee at this stage without there being
any protest during the course of trial
reflects an evasive tactics on the part of the
appellants throughout to prolong the
proceedings. On the aspect of willingness
and readiness to perform the contract was
rather proved by Rashid who entered the
witness box for implementation of the
agreement even after the death of late Nazir
Baksh (original plaintiff). Therefore, the
statement that Rashid did not inherit any
financial support from his father was
inconsequential. Rashid in his statement
has nowhere accepted that his own
financial condition was poor, as such, his
readiness to perform the contract cannot be
disbelieved on the premise of what is
argued by the learned counsel for the
appellants at this stage. None of the
witnesses who were produced by the
contesting appellant-defendants denied the
existence
of
contract,
therefore,
the
proceedings would not stand vitiated on the
premise a ground which is no more than
9 All. Rahmat Ali Vs. Rashid & Ors.
225
technical. The submission put forth that the
relevant issues were not framed by the trial
court does not merit and is rejected.

41. The trial court in order to
adjudicate upon the issues aforesaid has
fully
adhered
to
the
procedure
of
opportunity being granted to the parties for
leading evidence. The plaintiff in order to
establish the existence of contract proved
the fact of house property being released
from mortgage and in pursuance of the
agreement of sale, the part payment of Rs.
6400/- to the promissor was fully proved on
the basis of credible evidence. The
witnesses Shiv Narain and Mohd. Akbar
Raza have proved the contents of receipt
which witnessed the release of property
from mortgage and payment of advance
money in pursuance of the sale agreement
relating to the disputed house which was
agreed to be sold for a total sum of Rs.
12000/-. Both the contesting defendants
took a stand in reply to legal notice that no
such agreement took place rather some
signed paper was handed over to Mohd.
Akbar Raza from whom the promissors
pleaded to have borrowed the deficient
money for the release of mortgaged
property. This fact was not proved by the
promissors (Ashraf and Smt. Ahmadi) on
the basis of any evidence whatsoever nor
did they succeed in fishing out any doubt in
the statement of Akbar Raza or Shiv Narain
during cross examination. That apart Smt.
Ahmadi who herself was surviving at the
stage of evidence even did not choose to
enter the witness box to prove her own
case, therefore, the evidence of witnesses
relied upon by the respondent-plaintiffs
assumed a higher degree of credibility.