# Smt. Tarawati v. Ram Murti Lal Gangwar

- **Citation:** (2015) 3 ILRA 1298
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-11-24
- **Case number:** Second Appeal No. 918 of 2015
- **Bench:** Pramod Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-tarawati-v-ram-murti-lal-gangwar-43311
- **Pages:** 6

## Headnote

Specific Relief Act-Section 16 (1)-Suit for
specific performance-decreed by Courts
below-ground
of
non
pleading
of
readiness and willingness in plaint-not
taken before first appellate court-can not
be heard in Second Appeal-otherwise
specific issue framed and concurrent
3 All] Smt. Tarawati Vs. Ram Murti Lal Gangwar
1299
findings of court below about readiness
and
willingness-already
there-no
substantial question of law involvedSecond Appeal dismissed.
Held: Para-14
As discussed above, in non-payment of
requisite mandatory legal court fees the
pleading of defendant could not be accepted
as formal counter-claim. In his written
statement and counter-claim the defendant
had sought relief of cancellation of registered
agreement to sell dated 12.2.2009 in light of
relief sought by plaint and in alleged counterclaim several issues were framed including
the issue no. 1 to the effect that whether
registered
agreement
dated
12.2.2009
between the parties was legally executed,
and issue no. 2 that whether plaintiff has
always been ready and willing to perform his
part of contract. These two issues cover the
pleadings and relief sought in alleged
counter-claim
of
defendant-appellant.
Therefore, contention of learned counsel for
the appellant on this point is non-acceptable.
Case Law discussed:
AIR 1967 SC 868; (2014) 11 SCC 605.

## Text

1298
 INDIAN LAW REPORTS ALLAHABAD SERIES
were said to be the minor sons of the
victim.
9. Although affidavit in evidence
was indeed filed by the guardian/next
friend of the claimants on 16.04.2013 and
hence he cannot be considered totally
negligent in prosecuting the matter but, if
at all the Tribunal found him wanting in
attending on his duties and in prosecuting
the matter, alternative arrangements could
have been always ordered, rather ought to
have been ordered, by the Tribunal for
protection of the rights of the claimants
who are shown to be the persons with
disabilities.
10.
It appears that in its haste for
disposal, the Tribunal altogether failed to
consider that the matter related to the
claimants who were shown to be the
persons under disabilities including minors;
and if at all their next friend was found not
doing his duties for prosecution of the
matter, the next friend could have been
removed and guardian ad-litem could have
been appointed for the claimants on the
principles referable to Order XXXII of the
Code of Civil Procedure. The manner of
disposal of the present claim application by
the Tribunal without regard to all the facts
and circumstances has only resulted in
failure of justice and this manner of disposal
cannot be endorsed.
11. In the totality of circumstances
of the present case, we are clearly of the
view that the interest of justice demands a
merit hearing of the claim application,
after reasonable opportunity of evidence
to the claimants.
12. Accordingly and in view of the
above, this appeal is allowed in the
manner and to the extent that the
impugned Award dated 24.05.2013 as
passed in M.A.C.P. No.124 of 2012 is set
aside. M.A.C.P. No.124 of 2012 shall
stand restored for consideration by the
Tribunal afresh.
13. The parties through their counsel
shall stand at notice to appear before the
Tribunal concerned on 21.12.2015. It
shall also be required of the next
friend/guardian of claimants, who has
filed affidavit in evidence to remain
present before the Tribunal concerned on
the date of appearance. The Tribunal shall
thereafter proceed with the matter in
accordance with law keeping in view the
observations foregoing.
14. The record of the Tribunal
concerned be sent back immediately with
a copy of this order. No costs.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.11.2015
BEFORE
THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.
Second Appeal No. 918 of 2015
Smt. Tarawati
Appellant
Versus
Ram Murti Lal Gangwar
...Respondent
Counsel for the Appellant:
Sri Ram Krishna Koli
Counsel for the Respondent:
Sri Ajay Kumar
Specific Relief Act-Section 16 (1)-Suit for
specific performance-decreed by Courts
below-ground
of
non
pleading
of
readiness and willingness in plaint-not
taken before first appellate court-can not
be heard in Second Appeal-otherwise
specific issue framed and concurrent
3 All] Smt. Tarawati Vs. Ram Murti Lal Gangwar
1299
findings of court below about readiness
and
willingness-already
there-no
substantial question of law involvedSecond Appeal dismissed.
Held: Para-14
As discussed above, in non-payment of
requisite mandatory legal court fees the
pleading of defendant could not be accepted
as formal counter-claim. In his written
statement and counter-claim the defendant
had sought relief of cancellation of registered
agreement to sell dated 12.2.2009 in light of
relief sought by plaint and in alleged counterclaim several issues were framed including
the issue no. 1 to the effect that whether
registered
agreement
dated
12.2.2009
between the parties was legally executed,
and issue no. 2 that whether plaintiff has
always been ready and willing to perform his
part of contract. These two issues cover the
pleadings and relief sought in alleged
counter-claim
of
defendant-appellant.
Therefore, contention of learned counsel for
the appellant on this point is non-acceptable.
Case Law discussed:
AIR 1967 SC 868; (2014) 11 SCC 605.
(Delivered by Hon'ble Pramod Kumar
Srivastava, J.)
1. Original Suit No. 79 of 2010,
Rammurti Lal v. Smt. Tarawati, was filed
for the relief of specific performance of
contract. The plaint case in brief was that
parties had executed registered agreement
to sell dated 12.2.2009 for sale of
property of defendant to plaintiff for
consideration of Rs. 1 lakh; and at the
time of execution of this contract
defendant had received Rs. 50,000/- as
advance consideration and promised to
execute sale deed within one year. But in
spite of repeated reminders and legal
notices of plaintiff, she had not executed
sale deed. Therefore, plaintiff had filed
suit for specific performance of said
contract.
2. Defendant (present appellant) had
filed written-statement in original suit
with pleading that she was in need of
money, so on the persuasion of plaintiff
for executing the documents of loan she
had gone to Tehsil Pilibhit, where she was
persuaded to place thumb impressions on
several documents, after which she was
given Rs. 5,000/- as loan. She was not
read
and
explained
the
document,
therefore, the registered agreement to sell
in question was result of fraud played
upon her by plaintiff. Defendant (present
appellant) had also filed counter-claim
alongwith her written-statement with
prayer that the registered agreement to
sell dated 12.2.2009 executed on her
behalf in favour of plaintiff be cancelled.
But during proceedings of the case
defendant-appellant had not deposited
requisite court-fees for relief sought by
her as counter-claim, so her pleading was
not accepted as counter-claim.
3. After affording opportunity of
hearing to parties and accepting their
evidences the court of Civil Judge (Senior
Division), Pilibhit had passed judgment
dated 6.3.2014, by which suit of plaintiff
for specific performance of contract was
decreed with direction to defendant to
receive
Rs.
50,000/-
as
remaining
consideration and execute sale deed of
property agreed between the parties
through
registered
deed
as
above.
Aggrieved
by
this,
defendant
had
preferred civil appeal no. 10/ 2014, which
was heard and dismissed by the court of
Additional District Judge, Court No. 1,
Pilibhit on 7.8.2015 with specific finding
that registered agreement to sell dated
12.2.2009 was properly executed by the
parties,
and
defendant-appellant
had
failed to prove that there was any fraud or
deception in its execution, and also that
1300
 INDIAN LAW REPORTS ALLAHABAD SERIES
plaintiff had been ready and willing to
perform his part of contract. Against the
judgment of the two courts below, present
second appeal has been preferred by
defendant of the original suit.
4. The first argument of learned
counsel for the appellant side was that the
counter-claim of defendant-appellant was
not considered by the two courts below.
This argument is unacceptable. A counterclaim is accepted as plaint with all the
formalities of a plaint. Since defendantappellant had not paid required court fees
for counter-claim, therefore, it could not
be accepted as a formal counter-claim.
There is no illegality or impropriety in it.
5. Learned counsel for the appellant
contended that no evidence was furnished
by plaintiff-respondent to prove that he
had amount of Rs. 50,000/- in his account
for being paid as consideration of sale
deed
to
be
executed
in
specific
performance of contract. This argument is
also not acceptable in light of evidences
available before the two courts below.
Firstly, there is specific evidence on part
of plaintiff-respondent before trial court
that amount of Rs. 50,000/- is deposited
in account in lieu of consideration for
proposed sale deed. Secondly, there is
concurrent finding of fact of the two
courts below that plaintiff-respondent had
been ready and willing to perform his part
of contract. These findings are based on
available evidences and passed after
application of mind. This finding is
apparently acceptable. Such finding of
fact cannot be interfered in second appeal.
6. The main contention of learned
counsel for the appellant was that there is
no mention of plaintiff's readiness and
willingness to perform his part of contract
in plaint. He contended that in absence of
such specific averment of readiness and
willingness for performance of contract,
the suit is barred by Section 16 (c) of
Specific Relief Act.
7. In Gomathinayagam Pillai and
others v. Palaniswami Nadar, AIR 1967
SC 868 the Hon'ble Apex Court had held
as under:
"Before he could be awarded a
decree for specific performance, the
respondent had to prove his readiness and
willingness continuously from the date of
the contract till the date of hearing of the
suit and if he failed in that, his suit was
liable to fail."
8. In N.P. Thirugnanam v. R. Jagan
Mohan Rao (Dr), (1995) 5 SCC 115 the
Apex Court had held:
"5. It is settled law that remedy for
specific performance is an equitable
remedy and is in the discretion of the
court, which discretion requires to be
exercised according to settled principles
of law and not arbitrarily as adumbrated
under Section 20 of the Specific Relief
Act, 1963 (for short "the Act"). Under
Section 20, the court is not bound to grant
the relief just because there was a valid
agreement of sale. Section 16(c) of the Act
envisages that plaintiff must plead and
prove that he had performed or has
always been ready and willing to perform
the essential terms of the contract which
are to be performed by him, other than
those terms the performance of which has
been
prevented
or
waived
by
the
defendant. The continuous readiness and
willingness on the part of the plaintiff is a
condition precedent to grant the relief of
specific performance. This circumstance
3 All] Smt. Tarawati Vs. Ram Murti Lal Gangwar
1301
is material and relevant and is required to
be considered by the court while granting
or refusing to grant the relief. If the
plaintiff fails to either aver or prove the
same, he must fail. To adjudge whether
the plaintiff is ready and willing to
perform his part of the contract, the court
must take into consideration the conduct
of the plaintiff prior and subsequent to the
filing of the suit along with other
attending circumstances. The amount of
consideration which he has to pay to the
defendant must of necessity be proved to
be available. Right from the date of the
execution till date of the decree he must
prove that he is ready and has always
been willing to perform his part of the
contract. As stated, the factum of his
readiness and willingness to perform his
part of the contract is to be adjudged with
reference to the conduct of the party and
the attending circumstances. The court
may
infer
from
the
facts
and
circumstances whether the plaintiff was
ready and was always ready and willing
to perform his part of the contract."
9. In Biswanath Ghosh v. Gobinda
Ghosh, (2014) 11 SCC 605 the Supreme
Court had held:
"22. It is a 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 with
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. --"
28. 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
fulfil his obligation and accept the
performance
when
the
time
for
performance arrives."
10. A perusal of pleadings reveal
that although this specific words of
plaintiff being always ready and willing to
perform his part of contract in question is
not mentioned in specific words but after
considering the total averment of plaint, it
is explicitly clear that such intention is
evident from plaint when plaintiff has
mentioned
that
on
his
insistence
defendant had agreed to execute sale
deed, and when he reached to office of
Sub Registrar, then defendant absented
herself so he had again reminded her and
then sent registered legal notice through
counsel for execution of sale deed in
compliance of said registered contract.
The over all reading of plaint makes it
clear that plaintiff had all along being
ready and willing to perform his part of
contract in question. On the basis of
pleadings of the parties, trial court had
framed specific issue no. 1 regarding
registered agreement to sell being legally
executed, and issue no. 2 that whether
plaintiff had always being ready and
willing to perform his part of contract.
Parties had given evidences on these
points, therefore, there is likelihood of
any infringement of legal right of
defendant-appellant as no prejudice has
been caused to her. It is also pertinent to
mention here that the defence case of
1302
 INDIAN LAW REPORTS ALLAHABAD SERIES
written
statement
about
registered
agreement to sell or its pleading for
cancellation of registered agreement to
sell dated 12.2.2009 had not been proved
by defendant-appellant side. It is also
pertinent to mention that even first
appellate court had given specific finding
of fact that plaintiff had been ready and
willing to perform his part of contract
dated 12.2.2009 for which he had gone to
office of Sub Registrar, Pilibhit and got
his presence noted in said office but
defendant-appellant absented, due to
which sale deed could not be executed.
There is specific finding of fact by first
appellate court about continuous readiness
and willingness of plaintiff-respondent to
perform his part of registered agreement
to sell in question.
11. From the aforementioned
sequence of facts and events, it can be
safely inferred that the respondentplaintiff was always ready and willing to
discharge his obligation and perform his
part of the agreement. In my considered
opinion, the undisputed facts and events
referred to hereinabove shall amount to
sufficient
compliance
with
the
requirements of Section 16(c) of the
Specific
Relief
Act.
Taking
into
consideration
the
entire
facts
and
circumstances of the case and the law
discussed hereinabove, in my considered
opinion the impugned judgments passed
by the trial Court as well as the first
appellate Court are not erroneous on this
point of law.
12. The judgment of trial court for
decreeing
the
plaintiff's
suit
was
challenged in first appeal no. 10 of 2014,
Smt. Tarawati V. Rammurti Lal Gangwar.
This appeal was dismissed by first
appellate court on 7.8.2015, against which
present second appeal has been preferred.
Thus, this appeal is preferred against
judgment passed in first civil appeal no.
10 of 2014 before first appellate court
under Order XLI C.P.C. The provisions of
Rule 2 of Order XLI reads as under:-
"2. Grounds which may be taken in
appeal.- The appellant shall not, except
by leave of the court, urge or be heard in
support of any ground of objection not set
forth in the memorandum of appeal; but
the Appellate Court, in deciding the
appeal, shall not be confined to the
grounds of objection set forth in the
memorandum of appeal or taken by leave
of the court under this rule:
Provided that the court shall not rest
its decision on any other ground unless
the party who may be affected thereby has
had a sufficient opportunity of contesting
the case on that ground."
13. The Rule 2 as above is
mandatory in nature for any appellant,
who except the permission of the Court,
shall not be heard on any ground of
objection not set forth in his memo of
appeal. In present case the memo of first
appeal makes it clear that no ground was
taken
on
behalf
of
appellant
that
defendant-respondent was not always
ready and willing to perform this part of
contract. Since this ground had not been
taken in first appeal, therefore, it is
inappropriate for appellant to raise this
ground in second appeal, especially when
first appellate court had given specific
finding of fact that plaintiff had always
been ready and willing to perform his part
of
contract
in
question.
Therefore,
argument of learned counsel for the
appellant on this point in light of Section
16(c) of the Specific Relief Act is non
sustainable. One important argument on
3 All] Badri Prasad Yadav [objection filed] Vs. Director Rajya Sabha Utpadan Mandi Parishad UP Lko 1303
behalf of appellant was that issues were
not framed on counter-claim, therefore, in
such circumstance judgment and decree
of trial court is not sustainable in eye of
law.
14.
As discussed above, in nonpayment of requisite mandatory legal court
fees the pleading of defendant could not be
accepted as formal counter-claim. In his
written statement and counter-claim the
defendant had sought relief of cancellation of
registered agreement to sell dated 12.2.2009
in light of relief sought by plaint and in
alleged counter-claim several issues were
framed including the issue no. 1 to the effect
that whether registered agreement dated
12.2.2009 between the parties was legally
executed, and issue no. 2 that whether
plaintiff has always been ready and willing to
perform his part of contract. These two issues
cover the pleadings and relief sought in
alleged counter-claim of defendant-appellant.
Therefore, contention of learned counsel for
the appellant on this point is non-acceptable.
15. So far as decision on point of
substantial question of law is concerned,
there appears none in this matter. The
only dispute between the parties is as to
whether registered deed of agreement to
sell dated 12.2.2009 between the parties is
executable or not and whether plaintiff
has been ready and willing to perform his
part of contract or not. The trial court had
framed specific issues on these points and
the
two
courts
below
have
given
concurrent finding of fact on these points.
16.

On
examination
of
the
reasonings recorded by the trial court,
which are affirmed by the learned first
appellate court in first appeal, I am of the
view that the judgments of the trial court
as well as the first appellate court are well
reasoned, based upon proper appreciation
of the entire evidence on record. No
question of law much less a substantial
question of law was involved in this case
before the High Court. No perversity or
infirmity is found in the concurrent
findings of fact recorded by the trial court
that has been affirmed by the first
appellate court to warrant interference in
this appeal. None of the contentions of the
learned
counsel
for
the
appellantdefendant can be sustained.
17. In view of the above, this Court
finds that no substantial question of law
arises in this appeal. The second appeal is
dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.11.2015
BEFORE
THE HON'BLE DEVENDRA KUMAR ARORA, J.
Service Single No. 4366 of 2009
Badri Prasad Yadav [Objection Filed]
 ...Petitioner
Versus
Director Rajya Sabha Utpadan Mandi
Parishad UP Lko.
.......Respondent
Counsel for the Petitioner:
RBS Rathore
Counsel for the Respondents:
N C Mehrotra, Brijesh Kr. Chaudhary
Constitution of India, Art.-226-Principle of
Natural Justice-non compliance-order not
sustainable-consequential direction given.
Held: Para-12
Fundamental requirement of law is that
the doctrine of natural justice should be
complied with and has, as a matter of
fact, turned out to be an integral part of