ORDER
Rajesh Tandon, J.
1. Heard Sri M.S. Tyagi, counsel for the appellant and Sri Lok Pal Songh, counsel for the respondent.
2. Present second appeal has been filed against the judgment and decree dated 24-8-2002 passed by II-FTC/Addl. District Judge, Haridwar in Civil Appeal No. 2/2000 Harbhajan Singh v. Mahindra Singh against the judgment dated 22-1-2000 and decree dated 27-1-2000 passed by the Civil Judge (Sr. Division), Haridwar, whereby the appeal has been dismissed and decree has been confirmed.
3. Present appeal was admitted on the following question of law:
Whether the respondents/plaintiff has been ready and willing to get the sale deed executed in his favour in accordance with the agreement to sell dated 20-8-1993.
4. Briefly stated a suit was filed by the plaintiff praying for a decree for specific performance in pursuance of the agreement to sell dated 20-3-1993 after the payment of Rs. 27,000/- to the extent of 1/3rd share.
5. According lo the case of the plaintiff, the defendant is the owner/bhumidhar with transferable rights and he has 1/3rd share for which he has agreed to sell to the plaintiff on a sum or Rs. 45,000/- on 20-3-1993 by executing the agreement. A sum of Rs. 18,000/- was given as earnest money in pursuance of the aforesaid agreement. The case of the plaintiff was that in pursuance of the agreement dated 20-3-1993, he was always ready and willing to get the sale deed executed after the payment of the balance amount of Rs. 27,000/- but despite various reminders, the defendant has failed to get the sale deed executed.
6. The plaintiff has sent a notice on 26-2-1994 and ultimately, on 19-3-1994, he was present before the sub-Registrar for getting the sale deed executed and ready money of Rs. 27,000/- was having with him but the defendant has failed to get the deed executed.
7. A written statement was filed by the defendant by which the averments were denied. However, so far as the agreement dated 20-3-1993 is concerned, the same was admitted by the defendant, but it has been stated that the defendant has not been made aware about the said deed. However, he has stated that the value of the land is not less than Rs. 25,000/- per Kachcha Bigha.
8. As will appear from the record, the plaintiff has sent a notice arid he was always ready and willing to execute the part performance of the contract. So far as the payment of Rs. 6,000/- to the defendant is concerned, the same was denied by the plaintiff and the findings have been recorded that the same were never given by the plaintiff. However, this fact was originally not available in the written statement but subsequently by an afterthought the same has been amended.
9. Trial Court has framed as many as six issues. So far as issues No. 1 and 4 are concerned, the same were decided together and the finding was recorded that an agreement was executed on 20-3-1993 on a sum of Rs. 45,000/- to the extent of 1/3rd share of the defendant so far as it relates to Khasra Nos. 161 and 162.
10. So far as issues No.2 and 6 are concerned, the same related to earnest money having been paid to the plaintiff and it has come on the record that the plaintiff was always willing and ready to get the sale deed executed and the earnest money was paid for the said deed. It was also observed that a sum of Rs. 6,000/- was never paid by the plaintiff to the defendant.
11. The trial Court on 22-1-2000 has passed the order to the following effect:
(Vernacular matter omitted)
12. The aforesaid order passed by the trial Court has been confirmed by the appellate Court after recording the finding to the following effect:
(Vernacular matter omitted)
13. Counsel for the appellant has referred Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Kuruvila's Son and Ors. MANU/SC/0173/1987 : AIR1987SC2328 on the ground that in case of specific performance, it has to seen that the Court should see that the litigation Is not used as an instrument of oppression to have unfair advantage to the plaintiff.
14. Counsel for the appellant has referred All Hasan v. Matiullah and Ors. MANU/UP/0167/1988 : AIR1988All57 where the question of presumption has been dealt with. The decision is not applicable in the present case.
15. Counsel for the appellant has further referred Ashok Kumar v. Basantilal and Ors. MANU/MP/0032/1985 : AIR1985MP179 , which relates to interference of the appellate Court.
16. Counsel for the appellant has mainly argued on the readiness and willingness to get the sale deed executed.
17. So far as the willingness and readiness are concerned, the statement of the plaintiff as PW 1 Mahendra, PW 2 Babu Ram Singh, Agreement to Sell and the receipts for attendance of the plaintiff 24-A-l, 25, 26-Ga are sufficient to prove that the plaintiff was ready and willing to perform his part of the contract. The evidence on the record is sufficient to prove the said fact.
18. After examining the judgment of the two Courts below, it is evident that the plaintiff was always willing to perform his part of the contract and was always ready to execute the same and as such it cannot be said that the judgments of the Courts below are erroneous.
19. Counsel for the respondents has referred Sukhbir Singh and Ors. v. Brijpal Singh and Ors. (Allahabad High Court) 1996 (28) ALR 268, where it has been observed as under:
Coming to the next point namely, noncompliance of Section 16 of Specific Relief Act, I again do not find any force in this contention. There is evidence on the point from the side of the plaintiffs, which was rightly accepted by the lower appellate Court. It was contended that no notice was given to the defendants for executing the sale deed and in the absence of notice, the suit could not be decreed. Written notice to the defendants is not required. All that is required; is that the defendants should have notice, written or otherwise that the plaintiffs intended to get the sale deed executed after paying balance money within the stipulated time.
20. Further the counsel for the respondents has referred Sarswati Devi Gupta v. Hartoarayan Johari and Ors. 2006(1) SCC 729, where it has been observed as under:
4. 'Both the trial Court and the lower appellate Court after dealing with the facts and circumstances of the case, came to the conclusion regarding the various facts leading to the readiness and willingness to perform the contract. The lower appellate Court decreed the suit. The High Court did not consider the finding of fact and placed reliance on the decision where it has been held that the plaintiff must allege and prove the readiness and willingness to the lower appellate Court and dismissed the suit for specific performance filed by the plaintiff. The learned Judge of the High Court did not consider any other question apparently because no other question was raised as is also clear from the judgment of the High Court itself as it is stated that this was the only question raised by the present respondent before the High Court. In view of the facts discussed above, the High Court was wrong in coming to the conclusion that the readiness and willingness to perform his part of the contract was not pleaded and proved.
21. In H.P. Pyarejan v. Dasappa MANU/SC/0951/2006 : AIR2006SC1144 , the Apex Court has observed as under:
11. The requirements to be fulfilled for bringing in compliance of the Section 16(c) of the act have been delineated by this Court in several judgments. While examining the requirement of Section 16(c) this Court in Syed Dastagir v. T.R. Gopalakrishna Setty MANU/SC/0471/1999 : AIR1999SC3029 noted as follows:So the whole gamut of the issue raised is, how to construe a plea specifically with reference to Section 16(c) and what are the obligations which the plaintiff has to comply with in reference to his plea and whether the plea of the plaintiff could not be construed to conform to the requirement of the aforesaid section, or does this section require specific words to be pleaded that he has performed or has always been ready and is willing to perform his part of the contract. In construing a plea in any pleading, Courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one's case for a relief. Such an expression may be pointed, precise, sometimes vague but still it could be gathered what he wants to convey through only by reading the whole pleading, depending on the person drafting a plea. In India most of the pleas are drafted by counsel hence the aforesaid difference of pleas which inevitably differ from one to the other. Thus, to gather true spirit behind a plea it should be read as a whole. This does not distract one from performing his obligations as required under a statute. But to test whether he has performed his obligations, one has to see the pith and substance of a plea. Where a statute requires any fact to be pleaded then that has to be pleaded may be in any form. The same plea may be stated by different persons through different words; then how could it be constricted to be only in any particular nomenclature or word. Unless a statute specifically requires a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16(c) does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of 'readiness and willingness' has to be in spirit and substance and not in letter and form. So to insist for a mechanical production of the exact words of a statute is to insist for the form rather than the essence. So the absence of form cannot dissolve an essence if already pleaded.
22. In H.P. Pyarejan v. Dasappa MANU/SC/0951/2006 : AIR2006SC1144 , the Apex Court has observed as under:
Under Section 100 of the Code (as amended in 1976) the jurisdiction of the High Court to interfere with the judgments of the Courts below is confined to hearing on substantial questions of law. Interference with findings of fact by the High Court is not warranted if it involves re-appreciation of evidence.
23. The Courts below have recorded a categorical finding of fact with regard to readiness and willingness to execute the sale-deed executed and as such no substantial question of law arises so as to interfere under Section 100 of the Code of Civil Procedure.
24. In view of the above, I find no substantial question of law so as to interfere in the judgment passed by the trial Court as well as confirmed by the appellate Court, however, the appeal deserves to be dismissed.
25. Accordingly the second appeal is dismissed. No order as to costs.