1 Reserved on 06.01.2025 Pronounced on 08.05.2025 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 65 of 2010 Smt. Sarvjeet Pathak W/o Ajay Pathak R/o Qr. No.24/B, Avenue B, Sector 1, Bhilai, Tehsil & District- Durg (CG) ... Appellant versus Surendra Kumar Jain S/o Sona Pal Jain R/o Azmera Treders, Shop No. 306, 307, Zonal Market, Sector 10, Bhilai Nagar, Tehsil & District- Durg (CG) ... Respondent For Appellant : Mr. Uttam Pandey, Advocate along with Mr. V. K. Pandey, Ms. Pooja Sinha, Advocates For Respondent(s) : Mr. Vivek Tripathi, Advocate (Hon’ble Shri Justice Sachin Singh Rajput) CAV JUDGMENT For convenience the plaintiff-purchaser would be referred to as the appellant and the dependent-seller as the respondent. 2. Challenge in this appeal filed under Section 96 of Code of Civil Procedure, 1908 (for short ‘CPC’) is to the judgment dated 23.02.2010 and decree dated 03.03.2010 passed in Civil Suit No.47-A/09 passed by the Additional District Judge (FTC) District Durg C.G (for short ‘Trial Court’). By the impugned judgment and decree, the trial Court has dismissed the suit filed by the appellant for specific performance of agreement. 3. Facts of the case in nutshell are that the appellant filed a suit for specific performance of agreement against the respondent. It was pleaded in the plaint that the respondent and the appellant know each other. The respondent entered into an 2 agreement (Ex.P/1) with the appellant to sell his property comprising of Plot No.40/d/10 area 1000 sq. ft. situated at Bhilai District Durg for a consideration of Rs.2,35,000/-. In this respect, an agreement was executed on 15.03.2007 and an advance amount of Rs.35,000/- was paid by the appellant to the respondent. It was further pleaded that the rest of the amount was to be paid at the time of registration of sale deed after the No Objection Certificate being obtained by the respondent. 4. The appellant requested the respondent to obtain NOC and get the sale deed executed. However, the respondent neither obtained the NOC nor executed the registered sale deed in favour of the appellant. Since the respondent avoided the execution of the sale deed in spite of being insisted upon time and again, the appellant through his Advocate sent a registered notice on 24.08.2007 (Ex.P/2) and requested to obtain the NOC and also get the sale deed executed but despite receipt of registered notice, the respondent did not execute the sale deed. The reply dated 28.09.2007 to the said notice was sent and it was stated in the reply that if the appellant did not remain present within 15 days therefrom at Municipal Council - Bhilai-Charauda, the agreement for sale would stand canceled and the advance money would be liable for forfeiture. Thereafter, the suit for specific performance of the agreement was filed on 04.02.2008. 5. Summons of the suit was served upon the respondent but he did not appear before the trial Court and remained ex-parte. 6. To prove the pleadings, the appellant examined herself as PW-01. Trial Court on the basis of evidence brought on record dismissed the suit filed by the appellant vide its impugned judgment and decree which is assailed before this Court by way of this appeal. 7. Mr. Uttam Pandey, learned counsel for the appellant submits that the trial Court has committed an error of law by dismissing the suit of the appellant. He further submits that the respondent remained ex parte before the trial Court; no 3 written statement was filed and no cross-examination of the appellant or her witnesses was undertaken, therefore, the un-controverted evidence ought to have been considered by the trial Court while dismissing the suit of the appellant and decree of specific performance of agreement ought to have been granted in her favour. He would further submit that the appellant was always ready and willing to perform her part of contract whereas the respondent avoided to execute the sale deed. He goes on to submit that in order to get the sale deed executed also the NOC was required from the Municipal Corporation, Durg which is a mandatory requirement, however, the respondent did not do the necessary formalities to perform his part of contract. He submits that during the pendency of this appeal, the respondent had sold the suit property to Amtiyaj Hussain S/o late Hassaian & Irfan Alam S/o Mohd. Iltiyaj both residents of Koka Bhilai. Mr. Pandey submits that he has filed an application under Order 1 Rule 10(2) CPC, an application under Order 6 Rule 17 read with Order 1 Rule 10(1) of CPC to implead the subsequent purchaser as a necessary party. This Court vide its order dated 02.03.2016 rejected the applications. It was however observed that by virtue of the principle of lis pendence, the sale or purchase if any would be subject to final outcome of the litigation. He further submits that the appeal may be allowed and the impugned judgment and decree may be set aside granting the relief as claimed in the civil suit. He further submits that even if there is no pleadings mentioned in the plaint for readiness and willingness, the conduct of the parties and the dispute germane between them has to be looked into and after the cumulative assessment of the pleadings as well as the evidence, the readiness and willingness has to be gathered, and the technical plea should not stand to the rescue of the respondent. To buttress his submissions he relied upon the upon several judgments of Supreme Court in the matter of Syed Dastagir vs T.R. Gopalakrishnasetty reported in (1999) 6 SCC 337; in the matter of Sughar Singh vs Hari Singh (Dead) Through Lrs. reported in AIR 2021 SC 5581, the judgment 4 of Kerala High Court and in the matter of Asha Joseph Vs. Babu C. George reported in 2022 3 KLT 208 , Ghanshyam Tiwari vs Rajdeep Arora reported in AIR 2024 CG 14, in the matter of M. Venkataramana Hebbar (Dead) by Lrs. Vs. M. Rajagopal Hebbar & Ors. reported in 2007 6 SCC 401 and Rajesh Kumar vs Anand Kumar passed in Civil Appeal No.7840 of 2023 decided on 17th of May, 2024. 8. Opposing the submissions of learned counsel for the appellant, Mr. Tripathi submits that respondent remained ex-parte before the learned trial Court as no proper service was effected upon him. He further submits that apart from this learned trial Court has considered all aspects of the matter and evidence brought before it and has rightly dismissed the civil suit and no illegality or irregularity was committed by the learned trial Court in doing so. 9. Heard learned counsel for the parties and perused the record. 10. In the evidence of the appellant (PW-1) she has stated that she knows the respondent as he is the friend of her husband. According to her, the respondent claiming himself to be owner of the disputed property had agreed to sell the same to her for a consideration of Rs. 02,35,000/-. The agreement to this effect was executed between them and an amount of Rs.35,000/- was also given to him in cash as advance money. The sale agreement was entered into between them on 15.03.2007 (Ex.P/1.) She has stated that her husband on several occasions requested the respondent to ensure the execution of the sale deed or to return the advance money but he refused for the same. In August, 2007 the appellant is stated to have sent a legal notice also to the respondent through the Advocate but the respondent did not come forward to ensure the execution of the sale deed and refused to return the advance amount. However, in paragraph No. 4 of her evidence she has stated that when she was not provided the NOC and the papers of the suit property by the respondent till 31.03.2007, she did not make any communication with the respondent showing her 5 readiness and willingness for execution of the sale deed. She has denied that on 23.03.2007 the respondent had telephonically informed her about the NOC being unnecessary and insisted her to get the registered sale deed executed. She has further denied about any notice being sent to her by the respondent through Advocate dated 04.04.2007 in respect of execution of the sale deed and the refusal on her part to accept the same. 11. From perusal of agreement of sale (Ex.P-1), it is apparent that it was executed on a stamp of Rs.50/-. The respondent and the appellant both have put their signatures on it. Two witnesses namely Manish Verma and Saurabh have also put their signatures on it, though not examined during trial. The recital of the agreement also makes it clear that the suit property was agreed to be sold for a consideration of Rs.2,35,000/- and Rs.35,000/- was paid by the appellant to the respondent as advance, and the remaining amount was to be paid by her to him at the time of execution of the sale deed. Ex.P-2 is the registered notice which was sent by the appellant through advocate to the respondent categorically stating that the respondent was asked to issue the NOC in favour of the appellant within 01 month therefrom and to get the registered sale deed executed in her favour within the said period after taking remaining amount of Rs.2,00,000/- as per the agreement. The legal notice also says that if the NOC is not issued in favour of the appellant and the sale deed is not executed, the appellant shall institute the legal proceedings against the respondent. From the plaint averments, the appellant appears to have made several requests to the respondent for execution of the sale deed and getting the NOC issued, but the respondent did not show his interest in doing so and eventually he took the stand that the sale agreement was ex-parte and he was not the party to it. 12. The reply to the legal notice given by the respondent which is marked as Ex- P/5 shows that the respondent observed due diligence for obtaining the NOC and in this connection he had approached the concerned authority at Bhilai where he came 6 to know that there was no requirement of any such NOC and for ensuring the execution of the sale deed both the parties were required to remain present and after depositing the requisite fee for that, the sale deed could be executed. The said reply also shows that this fact was intimated by the respondent with a request that the appellant may contact him for execution of the sale deed at Municipal Council- Bhilai-Charauda but she did not turn up. The most important fact in this case is that the suit land is said to have been sold by the respondent to some third party but it is surprising to this Court that the appellant did not opt to array the subsequent purchaser as party at an appropriate stage. Though he filed an application for the said purpose before this Court, as it was not the appropriate occasion for doing so, the said application has been rejected. 13. Taking this Court through several decisions of this Court referred to above, counsel for the appellant submits that the requirement of the Section 16(c) of the Specific Relief Act has to be interpreted as to the obligations which the appellant has to comply with in reference to her plea. He submits that while construing a plea in any pleading the courts must keep in mind that a plea is not an expression of art and science but an expression through words to place facts and law of one’s case for a relief. His main emphasis laid is on the constructive interpretation of the phrase “readiness and willingness” may be either pointed, precise, or sometimes even vague but still from the surrounding circumstances and depending upon the plea taken, the requirement of “readiness and willingness” can be put to test. However, the test whether the appellant has indeed performed her obligation, has to be seen in pith and substance and not in letter and in form and the same cannot be constricted to a particular nomenclature, phrase, or word. Not only this, the further submission made by the counsel for the appellant is that in a case where the pleadings and evidence give rise to two interpretations so as to demonstrate the performance of the part of the agreement, the one which defeats justice should be rejected and the one which 7 subserves to justice should be accepted. 14. The relevant portion of the decision of the Supreme Court in the matter of Syed Dastagir Vs. T.R. Gopalakrishna Setty (supra) which has subsequently been followed in number of cases including the latest one in the matter of Sughar Singh Vs. Hari Singh (supra) reads as under: “9. So whole gamut of issue raised is, how to construe a plea specially with reference to Section 16(c) and what are the obligations which the plaintiff has to comply with 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 ones case for a relief. Such an expression may be pointed, precise, some times vague but still could be gathered what he wants to convey through only by reading the whole pleading, depends on the person drafting a plea. In India most of the pleas are drafted by counsels hence aforesaid difference of pleas which inevitably differ from one to 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. 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 statute specifically require for 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 mechanical production of the exact words of an statute is to insist for the form rather than essence. So absence of form cannot dissolve an essence if already pleaded.” 15. This Court has taken note of the pleadings, evidence and the judgment impugned as also the decisions which learned counsel for the appellant took this Court through with great deal of industry. At the cost of repetition, this Court traversed through the evidence of the appellant who has examined herself as PW-1. Though on the one hand she has stated that on various occasions she called upon the respondent either to get the execution of the sale deed executed or return the advance amount given to him but he refused for the same, but on the other hand she has stated 8 that the respondent did not even reply to the notice sent by her through the Advocate. However, in the latter part of the evidence she has stated that when the respondent did not provide her the NOC or the documents of the suit property, she did not make any communication in writing showing her readiness and willingness to get the sale deed executed. She now has taken a somersault and stated that the reply to the notice which is marked as Ex.P/5 had come to her but she did not go through the same. Subsequently, in paragraph No. 5 of her deposition she has stated that she has read the reply to notice of Ex.P/5 but denied its content. The agreement does not even show the date and time within which the execution of the sale deed was to take place. As is apparent from the reply to notice dated 28.09.2007 the respondent had sent a notice to the appellant on 04.04.2007 asking her that if she did not ensure the execution of the sale deed within 15 days therefrom then the advance amount of Rs. 35,000/- would be forfeited which the appellant claims not to have received. Even assuming the statement of non-receipt of the notice dated 04.04.2007 to be correct yet after going through the reply dated 28.09.2007 it had very well come within her knowledge about the intend of the respondent. However, there is nothing on record to show that she had made any efforts even after 28.09.2007 to contact the respondent for execution of the sale deed. At least after the receipt of the reply dated 28.09.2007 she could have furthered the performance of her obligation in pursuance of the agreement Ex.P/1. Unfortunately she did not do anything and chose to institute the suit on 04.02.2008. There is not even a remote suggestion in the pleadings of the appellant that she had performed or has always been ready and willing to perform her part of the contract. Even in the appellant’s testimony as PW-1, it is difficult to find a categorical assertion that she had performed or has always been ready and willing to perform her part of the contract, either expressly or otherwise. The testimony of the appellant as PW-1 is essentially directed towards the existence and validity of the alleged agreement and the surrounding dealings of the parties; but is lacking in those 9 material assertions on readiness and willingness on her part, which remain essential for grant of the relief of the specific performance. The facts of the cases relied upon by the counsel for the appellant referred to above being on an altogether different analogy, are not applicable to the case in hand to be of any help to the appellant. 16. Having thus gone through the pleadings, evidence and the judgment impugned in depth, this Court does not find force in the arguments of the counsel for the appellant that the appellant had performed her obligation to culminate in execution of the sale deed, either expressly or impliedly. Even her equivocating stand in asserting a particular fact and then turning her back thereto speaks in volumes about her failure in demonstrating the readiness and willingness on her part. 17. In the above set of factual and legal backdrop, this Court finds itself unable to lay its hand on any fault in the findings of the trial Court that the appellant has failed to aver and prove her continuous readiness and willingness to perform her part of the contract. The suit was bound to fail on this ground alone. 18. However, the respondent in his reply to the notice of plaintiff has admitted that he has received Rs. 35,000/- as advance. Therefore, this Court is inclined to order refund of the advance money. Thus appeal is allowed in part and respondent is directed to refund Rs. 35,000/- to the appellant/plaintiff with 6% interest from the date of suit till realization. The respondent to bear the cost of this appeal. Decree be drawn accordingly. Sd/- (Sachin Singh Rajput) Judge Jyotishi/ Saxena