P L D 1964 Supreme Court 381 (PLP)

HAMOODUR RAHMAN, J.

‑This is a certificated appeal from the High Court of East Pakistan. The certificate was granted under Article 158 of the late Constitution read with the Laws (Continuance in Force) Order, 1958, on the ground that the value of the subject‑matter in dispute in the appeal in the High Court was above Rs. 15,

000. The appeal in the High Court arose out of a suit for specific performance of an agreement for the sale of a plot of land, bearing No. 227, at Mauza Mag Bazar and abutting on the Now Eskatan Road, Dacca. One Omar Sardar, the predecessor‑in -interest of the present appellants, agreed to sell the said plot of land to the respondent herein for the sum of Rs. 23,000 and executed a deed of agreement or Bainanama, Exh. 2 (a), on the 5th of August 1955, on receipt of a sum of Rs. 1,001 by way of earnest money. In this document it was recited that "the area of the homestead and lands is approximately 34 decimals" and that the vendor Omar Sardar had "decided to sell out the homestead and lands" to the respondent. The deed went on to further declare that "this homestead and its attached lands were not sold or leased out to anybody", and the price agreed upon was stated to be Rs. 22,000 per bigha. There was, furthermore, an express stipulation that the conveyance will be executed and registered within 76 days from the date of execution of the deed of agreement, that is to say, by the 30th of October 1955, and possession will also be delivered by that date. Upon the failure of the vendor to do so the deed went on to provide that the purchaser would be entitled to "have the homestead and its land possessed through Court." On the other hand, if the purchaser failed to complete the transaction by the aforementioned date, the vendor was given the right to re‑sell the "said homestead and its land" after giving proper notice to the purchaser and in such event the earnest money already paid was also to stand forfeited. Some 20 days thereafter the vendor received a further advance of Rs. 2,000 from out of the consideration money and duly endorsed a receipt to that effect on the deed of agreement itself on the 26th of August 1955. In the beginning of the month of October 1955, the purchaser by registered letter dated the 1st of October 1955 (Exh. 4) gave notice to the vendor that as there were houses which were also being sold along with the land, Income‑tax Clearance Certificate would be necessary to enable the deed to be registered and, therefore, the vendor should take timely steps to obtain the same. There was also a threat in this letter that 9f the transaction was not completed within the stipulated time the purchaser would claim damages of Rs. 1,200 per month. This letter was returned to the sender marked "refused". On the 12th of October 1955, however, the purchaser at the request of the vendor agreed to extend the time of perfor mance from the 30th of October 1955 to the 31st of March 1956. On this occasion too a deed for extension of time was drawn up (vide. Exh. 2) which recited that the extension of time was being granted at the request of the vendor to enable him "to harvest the present grown crops and to change the residence." In this recital it was also mentioned that the executant of the deed, namely, the vendor, had earlier executed a Bainanama on the 5th of August 1955, "with an agreement to sell my own possessed land within District Dacca." But in the last sentence of the operative portion of this document it was provided that "all other terms and conditions except the date of execution and registration of the sale‑deed which is extended from 30.10‑55 to 31‑3‑56 A. D. will hold good." After this extension the purchaser on the 14th of February 1956, again caused notice to be given by registered post through his Pleader complaining that "it is reported that In spite of informations you are not doing the needful to keep up your promises," and called upon the vendor to see the purchaser within seven days of the receipt of the said notice, to hand over documents in this connection and to fix up a date for the execution and registration of the deed of sale. This letter again was returned to the sender with the endorsement "refused." Thereafter, since nothing was done by the vendor to complete the transaction within the stipulated date, namely, the 31st of March 1956, in spite of the verbal requests of the purchaser, the present suit was filed on the 19th of April 1956. The vendor in his written statement admitted the execution of the two documents but denied that the agreement included the sale of the structures, namely, 5 thatched buts, 5 tin sheds, a latrine and a cow shed which were standing on the land. According to the vendor, the agreement was only for the sale of the land and not the structures thereon. It was also denied that the extension had been granted at the request of the vendor. The vendor did not admit that any registered letters had been sent by the purchaser and charged that the contract could not be performed due to the default of the purchaser himself, who was not in a position to pay up the entire balance of the consideration and, therefore, be was not entitled to the refund of the moneys already paid either by way of earnest money or as part payment of the consideration. The vendor further claimed that he had himself suffered loss for which he should be compensated. Some general pleas were also taken in the written statement to the effect that the suit was not maintainable and that the plaintiff had no cause of action but there was no specific plea in bar taken on the ground that the plaint nowhere averred that the plaintiff was all along ready and willing to perform his part of the contract. It may be stated here that what the plaint actually stated was to the following effect :‑ "That on 1st October 1955, the plaintiff sent a Registered (A/D) letter to the defendant asking him to be ready to execute the Deed of Sale by the stipulated date, namely, 30th October, 1955, but the letter was refused by the defendant, and so it came back to the plaintiff, the sender. Again, on the 14th February 1956, the plaintiff sent another notice to the defendant through his lawyer Mr. A. H. Aftabuddin Khan, Advocate, asking the defendant to come forward to execute the Deed of Sale on receipt of the balance of the price by the stipulated date, namely, 31st March 1956, but this letter too was refused by the defendant, and so it came back to the plaintiff's said lawyer. Both the letters are filed herewith. Besides, the plaintiff verbally requested the defendant to execute the sale‑deed and have it registered, but no effect. Although the registered letter of the 1st October was refused by the defendant, the defendant came to the plaintiff and requested for extension of time as detailed in para. 3 above." On these pleadings the following issues were raised :‑ (1) Is the suit maintainable in its present form? (2) Is the suit barn‑d by limitation? (3) Has the plaintiff failed to perform his part of the contract for the completion of the transaction within the stipulated time? (4) Has the money advanced by the plaintiff' been forfeited according to the terms of the contract? (5) Is the plaintiff entitled to specific performance of contrite; and to have the deed of conveyance executed and registered ? (6) IS the prayer for recovery of possession of the property maintainable without payment of ad valorem Court‑fee ? (7) What relief, if any, is the plaintiff entitled to? In support of his case the plaintiff' examined himself and four other witnesses. In his examination‑in‑chief the plaintiff maintained that the defendant had never requested him to have the conveyance executed by payment of the balance money. He asserted, on the other hand, that he "was always ready to pay money and have the execution of the kobala." This evidence was objected to on behalf of the defendant on the ground that as there was no averment in the plaint of the readiness and willingness of the plaintiff, this evidence could riot be led. The trial Court admitted the evidence after recording the objection. The plaintiff thereupon reiterated that "it is not correct that I was not ready with money to purchase the land as agreed. I am yet, ready to pay the balance money." He was cross‑examined with regard to his ability to perform his part of the contract but nothing to his discredit could be elicited from him. All that was discovered was that he was out of the country for some three months from the 2nd of October 1955, but he maintained that even during this period he had authorised his wife to withdraw moneys from the bank for completing the transaction. The other witnesses of the plaintiff also supported his case. As against this the vendor Omar Sardar examined himself and one other witness, in whose presence he claimed that lie had demanded from the plaintiff the balance of the purchase money and the completion of the transaction. He admitted, however, in cross‑examination that he never gave any notice through any lawyer to the plaintiff on account of such alleged default. He denied that the plaintiff ever asked him to take the money and execute the kobala. He was, however, not ready to sell the land any more to the purchaser even if the balance of the purchase price was paid. The defendant also asserted that the agreement did not contemplate the sale of the structures on the land. But all that his witness could say was that at one stage the plaintiff asked the vendor to take away his house and then only he would register the deed. He could not also support the defendant's statement that the transaction could not be completed, as the plaintiff was not in a position to pay the balance of the purchase money. All that he could say was that there was possibly some difference of opinion between the parties, because, the vendor and his pleader met the plaintiff's lawyer but after some discussion between the lawyers of both sides the second agreement for extension of dine vas drawn up. This witness is a close relation of the defendant himself and he was also an attesting witness to the deed for extension of time. The documents, namely, the two deeds and the two letters that were sent by registered post to the defendant by the plaintiff, have also been exhibited in the case. Upon a consideration of this evidence the trial Court came to the conclusion that the plaintiff had satisfactorily established his case and the defendant's allegation that the failure was due to default on the part of the plaintiff himself was absolutely baseless and frivolous. Hence no question of forfeiture of either the earnest money or the part payment already made arose for consideration. The trial Court also held that the agreement was for the sale of the land as well as the homestead on the land. No argument appears to have been advanced in the trial Court with regard to the legal question, namely, as to whether in the absence of any specific averment in the plaint to the effect that the plaintiff was all along ready and willing to perform his part of the contract, the suit was bound to fail. In the appeal in the High Court only two grounds were urged, namely, (1) that the agreement, Exh. 2 (a) was for the sale of the land only and not the huts thereon, and (2) that in so far as the plaintiff had neither averred in the plaint nor proved by evidence that he was all along willing to perform his part of the contract by paying the balance of the money to the defendant, the suit was bound to fail. The learned Judges of the High Court, after examining the deeds, Exhs. 2 and 2 (a), held that the document, Exh. 2 (a), clearly provided for the sale of the homestead as well as the lands. The word "homestead" A which appears to be the translation for the vernacular word "basatbari" is clearly not an accurate translation, for, the original vernacular word could mean nothing else but a "dwelling house" or a "residential house." The contention that Exh. 2 namely, the deed of extension, had altered the contract and, therefore, amounted to a novation of the original contract, because, therein it was recited that only the lands were being sold, was also repelled. We are of the opinion that this was rightly rejected. Exh. 2 in its operative portion clearly mentions that the other terms and conditions of the original document remained unaltered. The user, therefore, of the words that the executant had executed the earlier document "to sell my own possessed land within District Dacca" in the recital portion could not control the operative portion of the document, particularly, since the original document, Exh. 2 (a), itself clearly referred to both the land and the "basatbari" thereon. So far as the next contention is concerned, the learned Judges of the High Court have held after examining various decisions cited before them that there was no rule of law that the plaintiff must plead his readiness and willingness in the plaint, but that it was sufficient if the readiness and willingness to carry out his obligations was established upon the evidence in the case. In any event, the learned Judges were inclined to take the view that paragraph 4 of the plaint, which has been quoted earlier in this judgment, was "a clear and definite averment, in substance, to the effect that the plaintiff had been and has been and is all along ready and willing to perform his part of the contract". Upon the evidence also it was found that the plaintiff had satisfactorily proved this fact. Learned counsel appearing in support of the appeal has pressed this appeal on the same two grounds. So far as the first) ground is concerned, we are in full agreement with the High Court that the two documents, Exhs. 2 and 2 (a), read together leave no room for doubt that what was agreed to be sold was the land as well as the "basatbari" standing thereon. The failure C on the part of the vendor to mention "basatbari" also in the recital portion of the second agreement, Exh. 2, did not amount to a novation of the original contract, for, the operative portion of the contract clearly stipulated that all other terms and con ditions of the original agreement were to remain unchanged. Coming now to the second point the learned counsel has relied upon the following observation of their Lordships of the Judicial Committee in the case of Ardeshir Mama v. Flora Seassoon (55 I A (P C) 360) :‑ "Where the injured party sued at law for a breach, going, as in the present case, to the roof of the contract, he thereby elected to treat the contract as at an end and himself as discharged from his obligations. No further performance by him was either contemplated or had to be tendered. In a suit for specific performance, on the other hand, he treated and was required by the Court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness, from the date of the contract to the time of the hearing, to perform the contract on his part. Failure to make good that averment brought with it the inevitable dismissal of his suit." The above observation culled out of its context may appear at first sight to support the contention advanced by the learned counsel, but a more careful examination of the facts of the case will reveal that their Lordships were not laying down any rule that the failure to make such an averment would result in "inevitable dismissal" of the suit. All that their Lordships said was that failure to make good that averment brought with it the inevitable dismissal of the suit. This, in our opinion, meant that the failure on the part of the plaintiff to prove such readiness and willingness from the date of the contract to the time of the hearing of the suit to perform his part of the contract would render the suit liable to dismissal. The suit, out of which the appeal before their Lordships arose, was a suit for specific performance of a contract for the sale of certain lands in Bombay. In the plaint in this suit there was an averment that the plaintiff had throughout been ready and willing to perform his part of the contract, but nine months before the trial the plaintiff's solicitor notified the defendant in the suit to the effect that the plaintiff had decided to abandon his claim for specific performance and would instead only claim damages for the breach of the contract. No application was made for amendment of the pleadings until an objection way raised at the trial itself that it was not open to the plaintiff to so change his case. The amendment was permitted to be made even at that stage and the suit was converted into one for damages simpliciter. The trial Court awarded to the plaintiff damages as claimed by him. On appeal, the High Court found in favour of the defendant on the ground that his agent, who was alleged to have entered into the contract, had not been shown to have had the necessary authority to bind the defendant by the contract. Therefore, the suit was dismissed. The Learned Chief Justice of the Bombay High Court, who presided over the Bench hearing the appeal, it appears, had posed the question that the award of damages was liable to be set aside even for the reason that the plaintiff had during the pendency of the suit and before the trial expressed that he was no longer ready and willing to perform the contract on his part. The view was taken that from that very moment he became disentitled to specific performance and, therefore, was as a consequence not entitled even to damages which was only an alternative to specific performance in certain circumstances. This question was given prominence and argued before the Judicial Committee, and in dealing with this aspect of the case their Lordships, after considering the provisions of the Specific Relief Act, pointed out that "in relation to a contract to which the equitable form of relief was applicable, a party thereto had two remedies open to him in the event of the other party refusing or omitting to perform his part of the bargain. He might either institute a suit in equity for specific performance, or he might bring an action at law for the breach. But

and this is the basic fact to be remembered throughout the present discussion

his attitude towards the contract and towards the defendant differed fundamentally according to his choice. It was not necessary for their Lordships in this case to decide as to whether the suit, from which the appeal before them arose, was bound to fail for the failure of such an averment, for, as pointed out by their Lordships themselves, the plaintiff in the suit had in paragraph 9 of his plaint made the necessary averment as to his readiness and willingness. Their Lordships were merely pointing out that damages were granted in a suit for specific performance in equity in certain cases where it became "obviously expedient" that the plaintiff should not be pushed to a Court of common law to claim damages for breach of contract separately. In such cases the Court of Equity awarded damages in lieu of awarding specific performance where but for these special circumstances the relief by way of specific performance would have been available in equity. The attitude referred to by their Lordships bad relevance, therefore, to this, namely, that from the initial stage the plaintiff in the suit was to make up his mind, for, different consequences would flow from his choice. If he preferred to file a suit in Chancery for specific performance, there would be one set of consequences. On the other hand, if he chooses to file a suit in common law for M damages for breach of contract, then different consequences will follow. We are unable, therefore, to read into these observations of their Lordships of the Judicial Committee any intention to lay down any rule of law to the effect that the absence of an averment in the plaint of the readiness and willingness all along on the part of the plaintiff to perform his part of the contract would be fatal to the suit itself. This view appears to find support also from a subsequent decision of the Judicial Committee itself in the case of Abdullah Bey Chedid and others v. Tenenbaum (A I R 1934 PC 91). Although this case was from Turkey, their Lordships took the view that, in the absence of any provision in th8'Turkish Law or any local Ordinance on the question as to whether in an action to recover damages for breach of contract the plaintiff was bound to establish his readiness and willingness to perform his part, the case should be decided upon the basis of the English Law applicable in the case of concurrent obligations, and then observed : "Readiness and willingness to carry out his obligation has always been a condition precedent to the plaintiff's right to recover damages in respect of breach of one of two concurrent obligations. It is true that today in England it need not be expressly pleaded, but the onus of proving it is nevertheless on the plaintiff. That onus, in the absence of any evidence to the contrary adduced by the defendant, may be easily discharged, nor is a tender of money necessary in the case of an obligation to pay money. Evidence of inability to discharge the obligation adduced by the defendant may however render it necessary for the plaintiff to satisfy the Court that he was at the material moment in a position to discharge the obligation." This seems to indicate that even in 1934 it was not necessary in England to expressly plead this. There is nothing in the Specific Relief Act which would indicate that there must be an express averment in the plaint to this effect. It cannot, therefore, be said that failure to make such an averment must necessarily be fatal. The nearest provision in this behalf that can be found in the Specific Relief Act is in section 24 (b) which reads as follows "

24. Specific performance of a contract cannot be enforced in favour of a person :‑ (a) (b) who has become incapable of performing or violates, any essential terms of the contract that on his part remains to be performed. (c) (d) This again merely indicates that the onus is on the plaintiff to show only that he has not become incapable of performing any essential terms of the contract which on his part still remains to be performed. This is not quite the same as proving even his "continuous readiness and willingness from the date of the contract to the time of the hearing." The Judicial Committee imposed this burden on a plaintiff in a suit in the Indian Courts, because, in their view the Indian and English requirements in this matter were the same. Whether this is really so is a question which we, with the utmost respect, think merits re‑examination. So far as the question of making any express averment in the pleading of such readiness and willingness is concerned, we are of the view that although there can be no doubt that this is the invariable practice of pleading, and if we may say so, a desirable practice, designed to give a clear and express notice to the opponent of the case sought to be made out, it cannot be said that this is a rule of law which would render the structure of the suit itself defective or that without it a proper cause of action would not appear on the plaint. We are, therefore, unable to accept the contention of the learned counsel that the present suit was bound to fail in the absence of such an averment. Now so far as the question of what exactly the plaintiff must still prove ; namely, as to whether he must prove his readiness from the date of the contract to the date of hearing, is concerned ; we express no final opinion, for, full arguments have not been advanced before us on this aspect of the question, as on the evidence in this case it has been held by all Courts below that even such readiness and willingness had in fact been established. The evidence in this case, to which we have already adverted, indicates that the plaintiff maintained throughout that he was ready and willing to perform his contract and nothing could be elicited in cross‑examination which would show that there was, at any stage, anything to suggest that the plaintiff was not ready and willing to perform his obligations. Again, in paragraph 4 of the plaint (quoted earlier) although it has not been said in so many words that the plaintiff was and has always been ready and willing to perform his part of the contract, yet substantially what the plaintiff has stated is that he has in fact performed all his obligations under the contract and there is nothing more for him to do. Once he had pleaded that he has performed all his part of the contract it would be wholly unnecessary for him, nevertheless, to add a formal averment that he is ready and willing to perform his part of the contract, even though he has stated that he has already performed the same. Even the rule of equity referred to in the case of Ardeshir Mama v. Flors Sassoon only required the plaintiff to aver and prove that he has performed or has been ready and willing to perform his part of the contract. For these reasons we are of the view that there is no substance in this appeal and the same is, accordingly, dismissed with costs. A. H. Appeal dismissed.