# Smt. Vidyawati v. Smt. Raj Dei And Others

- **Citation:** (2013) 2 ILRA 589
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-05-21
- **Case number:** J. First Appeal No. 47 of 1978
- **Bench:** Saeed-Uz-Zaman Siddiqi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-vidyawati-v-smt-raj-dei-and-others-42591
- **Pages:** 5

## Headnote

Specfic Relief Act 1963-Section 16(a)-
Suit
for
specific
performance-decreed
without framing issue regarding readiness
and
willingness-held-judgment
became
perverse in eye of law-matter remitted
590 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
back-Trail Court to frame specific issue
give opportunity to lead evidence to the
parties-decide suit itself withing time
bound period.

Held: Para-11
In view of the law as discussed above,
non framing of issues on the point
regarding compliance of Section 16 (a)
and Section 16 (c) of Specific Relief Act,
the judgment becomes perverse in the
eyes of law and, as such, the issue to the
effect that whether the plaintiff has
always been ready and is ready and
willing to perform his part of contract
must
be
framed.
Consequent
upon
framing of this issue the parties shall
have to be given a right to lead evidence
on that issue. Regarding compliance of
Section 16 (a) of Specific Relief Act,
detailed findings have to be made under
issue no.5 in which learned Trial Court
has to consider as to whether the ends of
justice would successfully meet if the
plaintiff is compensated by refunding the
amount of earnest money paid by him
along with interest, if any. No further
issue is required to be made on this point
as the Court has to deal with this aspect
under issue no.5.

Case Law discussed:
AIR 1928 PC 208; AIR 1983 Madras 169

## Text

2 All] Smt. Vidyawati Vs.Smt. Raj Dei and Others
589
has misread the law and dismissed the
amendment as well as entire case on
conjectures
and
surmises.
By
the
impugned order the learned Appellate
Court has summarily thrown out the
landlord in a surreptitious manner by
applying its own whims. It is well known
that
Judges
must
administer
law
according to the provisions of law. It is
the bounden duty of Judges to discern
legislative intention in the process of
adjudication.
Justice
administered
according to individual's whim, desire,
inclination and notion of justice would
lead to confusion, disorder and chaos.
Since such tendency is in its primary
stage it is giving rise to indiscriminate and
frequent petitions before this Court and is
leading this Court to colossal delay in
administration of justice, in civil cases, in
out country. I am bound to mention that
the misinterpretation of law by the learned
Appellate Court is gross of inexcusable
error.

13. In either case the impugned
order passed by the learned appellate
court is capricious and unreasonable by
which he has turned hostile from law or
true law as laid down by the legislature
and incorporated by various court and the
Hon'ble Apex Court.

14. Original application for release
was filed in the year 2007 which deserves
to be decided within two months as
prescribed under rule 15(3) of the Rules
framed under U.P. Rent Act No. XIII of
1972 but for the last 6 years it could not
be decided and at this stage the delay has
been caused due to the miss-application of
law and wrong judgment by the learned
appellate court. The impugned application
of the petitioners should be allowed and is
accordingly
allowed.
The
learned
appellate court shall decide the appeal
within two months from the date of
production of certified copy of this order
on merits by applying its judicial mind.

15. In result, the writ petition
succeeds and the impugned order dated
08.02.2012, passed by opposite party no.1
is hereby quashed.

16. Let the copy of this order be sent
to the learned District Judge, Unnao who
may, in turn recall the appeal to its own
diary, if not possible then transfer it to
some other competent court, without
delay.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.05.2013

BEFORE
THE HON'BLE SAEED-UZ-ZAMAN SIDDIQI,
J.

First Appeal No. 47 of 1978

Smt. Vidyawati ...Appellant
Versus
Smt. Raj Dei And Others ...Respondents

Counsel for the Petitioner:
Sri Harguru Charan, Sri A.K. Bajpai
Sri A.R. Khan, Sri Amar Nath Singh
Sri Apurva Kumar, Sri Ashok Bajpai
Sri G.P. Mishra, Sri H.G. Upadhyay
Sri Jai Shree Net, Sri R.B. Tiwari
Sri R.L. Ojha, Sri S.C. Tewari

Counsel for the Respondents:
Sri S.C. Mishra, Sri Dev Kumar Tripathi
Sri R.B. Tewari

Specfic Relief Act 1963-Section 16(a)-
Suit
for
specific
performance-decreed
without framing issue regarding readiness
and
willingness-held-judgment
became
perverse in eye of law-matter remitted
590 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
back-Trail Court to frame specific issue
give opportunity to lead evidence to the
parties-decide suit itself withing time
bound period.

Held: Para-11
In view of the law as discussed above,
non framing of issues on the point
regarding compliance of Section 16 (a)
and Section 16 (c) of Specific Relief Act,
the judgment becomes perverse in the
eyes of law and, as such, the issue to the
effect that whether the plaintiff has
always been ready and is ready and
willing to perform his part of contract
must
be
framed.
Consequent
upon
framing of this issue the parties shall
have to be given a right to lead evidence
on that issue. Regarding compliance of
Section 16 (a) of Specific Relief Act,
detailed findings have to be made under
issue no.5 in which learned Trial Court
has to consider as to whether the ends of
justice would successfully meet if the
plaintiff is compensated by refunding the
amount of earnest money paid by him
along with interest, if any. No further
issue is required to be made on this point
as the Court has to deal with this aspect
under issue no.5.

Case Law discussed:
AIR 1928 PC 208; AIR 1983 Madras 169

(Delivered by Hon'ble Saeed-Uz-Zaman
Siddqi, J.)

1. Heard learned counsel for the
parties and perused the records.

2. This appeal was admitted vide
order dated 10.05.1998 without framing
of any point of determination. As soon as
this Court proceeded on to hear so as to
frame point of determination, it was found
that the only point of determination, at the
beginning of the arguments, involved is to
the effect; whether the learned Trial
Court, who has not framed any issue
regarding compliance of Section 16 (c) of
Specific Relief Act, the judgment and
decree passed by the learned Trial Court
is perverse or not?

3. The instant appeal has arisen out
of judgment and decree dated 16.03.1978,
passed by Second Additional District
Judge, Pratapgarh in Original Suit No.44
of 1975 by which the suit for specific
performance of agreement to sell has been
decreed and the plaintiff has been directed
to deposit a sum of Rs.5,000/- within two
months. The defendant no.1/1 and 1/2
were directed to execute sale deed in
favour of the plaintiff within next two
months. It was further directed that
defendant no.2 Smt. Vidyawati shall also
join that sale. In default, the sale deed
would be executed by the Court on their
behalf.

4. Brief facts of the case are that an
unregistered agreement to sell was
executed on 31.12.1974 and a sum of
Rs.5,000/- was paid as earnest money as
recited in the agreement. The sale was
agreed at Rs.10,000/-. The executant of
the
agreement
Surajpal
obtained
permission to sell from Settlement Officer
Concolidation on 12.01.1975. During the
period two registered sale deeds were
executed regarding said land.

5. Upon consideration of the
pleadings of parties learned Trial Court
framed as well as 5 issues which runs as
follows:-

"1. Whether Suraj Pal original
defendant no.1 had agreed to sell the
plots in dispute to the plaintiff for
Rs.10,000/-?

2. Whether the agreement dated 31.12.74
was executed by him (Suraj Pal)?
2 All] Smt. Vidyawati Vs.Smt. Raj Dei and Others
591

3. Whether he was paid Rs.5,000/- by
the plaintiff as earnest money at that time
(execution of the agreement)?

4. Whether the defendant no.2 is
bonafide purchaser for value without
notice?

5. To what relief, if any, is the
plaintiff entitled?"\

6.

The
learned
Trial
Court
proceeded on to decide issue no.1 to 3
together and all the issues have been
decided in favour of plaintiff. Issue no.5
relate to the relief. The learned Trial
Court did not make any discussion
regarding requirement of law as embodied
in Section 16 (a) of Specific Relief Act,
1963 and decided the issue no.5 with
following observations:-

"In view of the decision of issue no.1
to 3 in the affirmative and defendant not
being found to be a purchaser for value, it
is hereby held that plaintiff is entitled to
the relief claimed."

7. Learned Trial Court has also not
framed any issue to the effect that
'whether the plaintiff has always been
ready and willing to perform the essential
terms of contract which are to be
performed by him, other than terms the
performance of which has been prevented
or waived by the defendant?. This is the
mandatory provision of law which must
be averred by the plaintiff in his plaint
and he has to prove the same. But, learned
Trial Court did not enter into this
requirement of law. Since there has been
subsequent purchases of land the learned
Trial Court was bound to have considered
the same and have entered into deciding
the dispute as to whether the plaintiff can
be compensated in terms of money or
specific performance has to be decreed by
directing to execute the sale deed, which
is also mandatory under Section 16 (a) of
Specific Relief Act, 1963.

8. It is well settled that Section 16 of
Specific Relief Act, 1963 corresponds to
Section 24 of Specific Relief Act, 1877.

In Ardeshir v. Flora Sassoon, AIR
1928, PC 208, Lord Blanesburg observed
thus:-

"In a suit for specific performance
the plaintiff has to allege, and if the fact is
traversed, he is required to prove a
continuous readiness and willingness
from the date of the contract to the time of
the hearing, the perform the contract on
his part. Failure to make good that
averment brought with it the inevitable
dismissal of his suit."

This was approved by the Supreme
Court in Gomathinayagam Pillai v.
Palanisami Nadar, AIR 1967 SC 868,
Shah, J. speaking for the court observed
as follows (at p. 872)-

"The respondent (plaintiff) must in a
suit for specific performance of an
agreement plead and prove that he was
ready and willing to perform his part of
the contract continuously between the
date of the contract and the date of
hearing of the suit."

Again in Premraj v. D. L. F. Ltd.,
(1968) 3 SCR 648: (AIR 1968 SC 1355)
Ramaswami, J. peaking for the Bench
observed thus (at p. 1357)-

"It is well settled that in a suit for
specific performance, the plaintiff should
allege that he is ready and willing to
perform his part of the contract."
592 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

10. In H.G. Krishna Reddi and Co.
v. M.M. Thimmiah and another, AIR
1983 Madras 169, Division Bench of
Madras High Court made following
observations:

"Section 16(c) of the Specific Relief
Act 1963 is prohibitory and that a duty is
cast on courts by a public statute that a
specific performance of a contract cannot
be granted in favour of a person unless he
avers and proves his readiness and
willingness to perform his part of the
contract. That being the nature of the
statute, it would be the duty of the court to
see whether the person who seeks to
enforce
the
contract
satisfies
the
mandatory provisions of S. 16 of the
Specific Relief Act, 1963. The Privy
Council and the Supreme Court have
interpreted the section to mean that if the
conditions are not satisfied, the court is
bound to dismiss the suit. Though no
precedent is necessary to support this
conclusion of ours we shall refer to two
decisions in this context. The first one is
shiba Prasad Singh v. Srish Chandra, AIR
1949 PC 297 wherein the Privy Council
was called upon to interpret the meaning
to be given to the word `mistake' in S. 72
of the Contract Act. The question was not
raised, nor evidently argued before the
Subordinate Judge and the High Court,
and therefore the respondent raised an
objection that no argument could be
advanced before the Privy Council based
on S. 72. However, their Lordships
negatived the objections stating that they
were unable to exclude from their
consideration the provisions of the public
statute.

In Surajmull Nagoremull v. Triton
Insurance Co. Ltd., (1925) 49 Mad LJ 136
: (AIR 1925 PC 83), the question was
whether a contract for sea insurance was
valid even though it was not expressed in a
sea policy as provided under S. 7 of the
Stamp Act 1899. The section had not been
pleaded by the defendant in the suit. It was
only during the hearing of the appeal before
the Privy Council it was discovered that
that S. 7 of the Stamp Act provided that no
contract of sea insurance would be valid
unless the same was expressed in policies of
sea insurance. It was argued by the plaintiff
that it was too late to plead as an answer to
the plaintiff's claim. Lord Sumner observed
thus-

"The suggestion may be at once
dismissed that is too late now to raise the
section as an answer to the claim. No
court can enforce as valid, that which
competent enactments have declared shall
not be valid, nor is obedience to such an
enactments have declared shall not be
valid, nor is obedience to such an
enactment a thing from which a court can
be dispense by a consent of the parties or
by a failure to plead or to argue the point
at the outset (Nixon v. Albion Marine
(1867) LR 2 Exc 338). The enactment is
prohibitory. It is not confined to affording
a party a protection, of which he may
avail himself or not as he pleases. It is not
framed solely for the protection of the
revenue and to be enforced solely at the
instance of the revenue officials, nor is the
prohibition limited to case, for which a
penalty is eligible. The expression of an
agreement for sea insurance, otherwise
than in a policy, is a thing forbidden in
the public interest, and the statutory
insistence on a policy is no mere
collateral requirement or prescription of
the proper way of making such an
agreement. To allow the suit to proceed in
defiance of S. 7 would defeat the
provisions of the law laid down therein."
2 All] Oriental Insurance Company Ltd. Vs. Rajendra Kumar Jain and Ors.
593

11. In view of the law as discussed
above, non framing of issues on the point
regarding compliance of Section 16 (a)
and Section 16 (c) of Specific Relief Act,
the judgment becomes perverse in the
eyes of law and, as such, the issue to the
effect that whether the plaintiff has
always been ready and is ready and
willing to perform his part of contract
must
be
framed.
Consequent
upon
framing of this issue the parties shall have
to be given a right to lead evidence on
that issue. Regarding compliance of
Section 16 (a) of Specific Relief Act,
detailed findings have to be made under
issue no.5 in which learned Trial Court
has to consider as to whether the ends of
justice would successfully meet if the
plaintiff is compensated by refunding the
amount of earnest money paid by him
along with interest, if any. No further
issue is required to be made on this point
as the Court has to deal with this aspect
under issue no.5.

12. Since the matter is very old as
the suit was filed on 29.11.1975, I am
reluctant to remand the case but I can't
help as after framing of issues the parties
shall be given right to lead evidence on
that score alone which cannot be done at
the ends of this Court as it would snatch
away the right of appeal, I am bound to
remand back the case.

13. On the basis of discussions as
made above, the impugned judgment and
decree is set aside, appeal is allowed and
the case is remanded back for fresh trial
after framing issue no.6 within the
requirement of Section 16 (c) of Specific
Relief
Act.
Since
the
pecuniary
jurisdiction of the Civil Judge (Junior
Division)
and
Civil
Judge
(Senior
Division) has been enhanced the file is
remitted back to learned District Judge,
Pratapgrah who is requested to entrust the
case having pecuniary jurisdiction to try
the suits up to valuation of Rs.10,000/-.
The said Court shall immediately frame
issue no.6 and shall afford the parties
opportunity to lead evidence on that score
alone and shall proceed on with the case
on day to day basis as far as possible and
shall try to dispose of the suit within two
months from the framing of additional
issue.

14. Parties shall bear their own
costs. The Registry of this Court shall
immediately send back the Lower Court
Record
to
learned
District
Judge,
Pratapgarh through Special Messenger
within one week from today.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.05.2013

BEFORE
THE HON'BLE RAJES KUMAR, J.

First Appeal From Order No. 151 of 1987

Oriental Insurance Company Ltd.

 ...Appellant
Versus
Rajendra Kumar and Ors. ...Respondents

Counsel for the Petitioner:
Sri A.B. Saran, Sri Arun Kumar Shukla

Counsel for the Respondents:
Sri R.K. Jain

Motor Vehicle Act 1939- Section 95
(2)(b)(ii)- Liability of Insurance companyvehicle attached with U.P.S.R.T.C met an
accident-caused
death
of
certain
passengers-tribunal awarded27000/- with
interest-appeal
on
ground
insurance
company having limited liability of Rs.
5000/-on each-can not be fastened with