1 2025:CGHC:19581-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 326 of 2016  Devendra Nagar Pujya Sindhi Panchayat Through President Sunderdas Jadwani, S/o Late Shri Popatmal Jadwani, R/o Devendra Nagar, Raipur, Tahsil And District Raipur, Chhattisgarh ...............(Plaintiff) ... Appellant versus 1. Smt. Pushpa Shukla, W/o Late Shri Mrityunjay Shukla, R/o Near Sindhi Gurudwara, E.W.S. 267/2, Sector-3, Devendra Nagar, Raipur, Tahsil And District Raipur, Chhattisgarh. 2. Shantanu Shukla, S/o Late Shri Mrityunjay Shukla, R/o Near Sindhi Gurudwara, E.W.S. 267/2, Sector-3, Devendra Nagar, Raipur, Tahsil And District Raipur, Chhattisgarh ................Defendants ... Respondent(s) For Appellant : Mr. Anurag Dayal Shrivastava, Advocate. For Respondents : Mr. Rakesh Kumar Thakur, Advocate. Hon'ble Smt Justice Rajani Dubey & Hon’ble Shri Justice Sachin Singh Rajput Judgment on Board Per Rajani Dubey, J 30.04.2025 1. The Plaintiff/appellant herein has preferred this first appeal being aggrieved by the judgment and decree dated 2 20.06.2016 passed by 9th Additional District Judge, Raipur, District Raipur (C.G.), in Civil Suit No.95-A/2011, whereby the suit filed by the plaintiff/appellant for specific performance of contract dated 24.07.2009 and permanent injunction, was dismissed. The parties to this appeal shall be referred herein as per their description before the learned trial Court. 2. Brief facts of the case, as per the plaint averments, are that plaintiff Pujya Sindhi Panchayat is a registered society situated at 268, 269, Sector-3, Devendra Raipur. The defendants owned and possessed the suit property situated at Devendra Nagar Sector -3 being House No. EWS 267/3. On 14.07.2009, the defendants executed an agreement with plaintiff to sell the suit property for consideration of Rs.11,00,000/- and received earnest amount of Rs.21,000/- through cheque No. 695980 of Andhra Bank and it was agreed to pay the balance consideration at the time of execution of sale deed. It was pleaded in the plaint that it was the condition of the agreement dated 24.07.2009 that defendants would obtain the permission to sell the suit property in favour of the plaintiff from the Raipur Development Authority at their own cost before 30.10.2009 and would inform the plaintiff accordingly but defendants have violated the said condition of the agreement. It was also pleaded in the plaint that the plaintiff on many 3 occasions said the defendants to obtain necessary permission from the RDA but defendants did not show any interest and kept wasting time by procrastinating. Thereafter, on 22.10.2009, plaintiff send a legal notice to defendants through his advocate for execution of sale deed of suit property before 30.10.2009 after obtaining due permission from the RDA within 30 days from the date of notice. The defendants replied to the notice through their advocate denying such execution of agreement to sell stated that they are not interested in selling the suit property, upon which the suit was filed by the plaintiff against the defendants for specific performance of the contract. 3. In written statement, defendant No.1 denied the plaint averments and stated that the suit property has been granted on lease to her husband Late Mrutunjay Shukla for 30 years and the legal heirs of Late Mrutunjay Shukal are residing in the suit property. The plaintiff is very well know about the fact that she along cannot execute the agreement to sale being not authorize to sell the suit property. It has also been stated that written proceeding was drawn up by the plaintiff with regard to giving of Rs.21,000/- and signature of the defendant No.1 was obtained on agreement to sale of suit property fraudulently. The agreement in question is a fabricated and fraud one and she had never 4 entered into an agreement to sale with the plaintiff being not the sole owner of the suit property. The plaintiff has filed the suit on the basis of fabricated documents which is not maintainable. Therefore, the suit of the plaintiff is liable to be dismissed. 4. In written statement, defendant No.2 has also denied the plaint averments and stated that the suit property is not in sole ownership of the defendant and the same is in ownership of defendant No.2 and her sister Ku. Shivalika. The defendant No.1 is co-owner of the suit property and she has not entered into any agreement to sale of the suit property with the plaintiff and therefore, the plaintiff is not free to execute the sale deed of the suit property from the Court. It has been also stated that the defendant has not executed any agreement to sale of the suit property on 26.10.2009 or any other date. The suit property has been purchased by husband of defendant No.1 and father of defendant No.2. Therefore, the suit of the plaintiff is liable to be rejected. 5. The learned trial Court, after appreciating the oral and documentary evidence, partly allowed the suit of the plaintiff holding that the plaintiff-society has failed to prove its case against defendants and the society held entitled to receive advance of Rs.21,000/- from defendant No.1, which was given to her. Hence, this first appeal filed by the 5 plaintiff/appellant. 6. Learned counsel for the appellant/plaintiff submits that the impugned judgment and decree passed by the learned trial Court is bad in law as well as facts on record. The learned trial Court has erred in law as well as in fact in dismissing the suit for specific performance of the contract. Learned counsel for the appellant/plaintiff has also stated that in absence of pleading and proof, the learned Court below has erred in holding that the appellant was not willing and ready to perform his part of contract. The learned trial Court did not appreciate this fact that both the issues were decided in favour of the appellant/plaintiff but the learned trial Court dismissed the suit of the plaintiff on the ground of readiness and willingness & the issue in this regard was not framed by the learned trail Court at all. Thus, the impugned judgment and decree is liable to be set aside. Alternate submission of learned counsel for the appellant/plaintiff is that the matter may be remanded to the learned trial Court with direction to first frame issue with regard to readiness and willingness and then decide the suit afresh. Reliance has been placed on the decision of this Court dated 03.07.2012 passed in F.A. No. 89/2005 in the matter of Bhagirathi Devangan Vs. Jhaduram & Ors. and decision of Hon’ble Apex Court dated 09.11.2022 in the matter of 6 V.S. Ramakrishnan Vs. P.M. Muhammed Ali [Civil Appeal Nos. 8050-8051 of 2022]. 7. On the other hand, learned counsel for respondents/defendants supporting the impugned judgment and decree submits that the learned trial Court minutely appreciated oral and documentary evidence and rightly dismissed the suit as is evident that the plaintiff has utterly failed to prove readiness and willingness to perform his part of contract. The learned trial Court has rightly dismissed the suit for specific performance, as such, the appeal being without any merit is liable to be dismissed. 8. We have heard learned counsel for the parties and perused the material available on record. 9. It is apparent from the record of the learned trial Court that the plaintiff filed a suit for specific performance of contract against defendants. The learned trial Court, on the basis of pleadings of the parties, framed 03 issues, which are as under :- dz- okn&iz’u fu”d”kZ 1- D;k oknh us oknxzLr edku dks izfroknh ls 11]00]000@& #i;s esa dz; djus dk lkSnk djds fnukad 14-07-2009 dks 21]000@& #i;s vfxze jkf’k c;kuk crkSj psd ds ek/;e izfrokfnuh dks nsdj bdjkjukek fu”ikfnr fd;k \ izekf.kr 2- D;k oknh us izfrokfnuh dks 21]000@& #i;s nsdj cgkuk cukdj Ny&diViwoZd >wBk bdjkjukek rS;kj fd;k \ ugha 3- lgk;rk ,oa okn O;; \ gka 7 10. It is apparent from the impugned judgment that the aforesaid issues framed by the learned trial Court have been decided in favour of the plaintiff, however, in para 23 to 33, the learned trial Court elaborately discussed and decided the issue whether the plaintiff was ready and willing to perform his part of contract. 11. The main objection of plaintiff is that the learned trial Court without framing issue with regard to readiness and willingness, decided the same and dismissed the suit of the plaintiff, which is against the settled principle and guidelines of Hon’ble Apex Court as also this Court. 12. This Court in the matter of Bhagirathi (supra), held in para 13, 14 and 15 as under :- 13. It is, therefore, clear on mere perusal of Section 16 (c) read with Form No.47 sin quo non for the plaintiff in case of claiming specific performance of a contract is to plead and prove that he has performed or has always been ready and willing to perform the essential terms of the contract on which he has filed a suit and which entitles him to claim decree for specific performance of a contract. In the absence of these material pleadings and evidence, issue and lastly the findings, the suit cannot either be dismissed or decreed or rather it cannot proceed. 14. We are constrained to observe that the learned trial judge though dealt with the issue, but didi not give any importance nor took note of 8 these basis requirements of specific performance of a contract specified in Section 16 (c) of the Specific Relief Act coupled with Form No.47 contained in the Code of Civil Procedure. What was more distressing to note is that the learned trial judge did not care to frame issues which were required to be framed being the only material issue for deciding the rights of the parties keeping in view the requirement of Section 16 (c) read with order 14 C.P.C. 15. In substance, in our view, the trial of suit was totally unsatisfactory. We cannot countenance conducting of a trial, which contains inherent defects causing prejudice to the rights of the parties, because, the very object of framing issues is to allow the parties to know what they have to prove and what they have to disprove. If there was no issue perhaps there can be no finding. This is what has happened in this case. It is for these aforementioned reasons, we are of the considered view that this is a fit case for allowing the appeal, setting aside of the impugned judgment and decree and then to remand the case to the trial Court with a direction to allow the parties to amend the pleadings making proper a averments, in case, if they so wish, keeping in view our observations and then, to frame specific issues as are required for deciding the suit for specific performance of a contract on the issue of readiness and willingness and then, commission of breach of terms of conditions and who has committed and also grant of alternative relief as provided in 9 Section 22 of the Specific Relief Act and then, again, allow the parties to lead evidence on such issues, which are framed and then, decide the suit on merits.” 13. The Hon’ble Apex Court in the matter of V.S. Ramakrishnan (supra) held in para 4.1 as under :- “4.1 Now the findings and the reasoning given by the learned Trial Court refusing to pass a decree for specific performance is concerned it appears that though there was no specific issue framed by the learned Trial Court on readiness and willingness on the part of the plaintiff, the Trial Court has given the findings on the same and has non- suited the plaintiff by observing that the plaintiff was not having sufficient funds to make the full balance consideration on or before 12.01.2006. Such a finding could not have been given by the learned Trial Court without putting the plaintiff to notice and without framing a specific issue on the readiness and willingness on the part of the plaintiff. There must be a specific issue framed on readiness and willingness on the part of the plaintiff in a suit for specific performance and before giving any specific finding, the parties must be put to notice. The object and purpose of framing the issue is so that the parties to the suit can lead the specific evidence on the same. On the aforesaid ground the judgment and order passed by the learned Trial Court 10 dismissing the suit and refusing to pass the decree for specific performance of the agreement to sell confirmed by the High Court deserves to be quashed and set aside and the matter is to be remanded to the learned Trial Court to frame the specific issue with respect to the readiness and willingness on the part of the plaintiff. On remand the parties be permitted to lead the evidence on the readiness and willingness on the part of the plaintiff to perform his part of the contract, more particularly, whether the plaintiff was ready and willing to pay the full consideration and whether the plaintiff was having sufficient funds and/or could have managed the balance sale consideration.” 14. In the light of aforesaid guidelines, it is clear that, the learned trial Court while adjudicating the suit of plaintiff for specific performance of contract, did not frame issue regarding readiness and willingness. It is also clear that that the learned trial Court decided issue Nos. 1 and 2 in favour of plaintiff and in para 23 to 27 elaborately discussing recorded its finding that the plaintiff was not having sufficient money to pay balance consideration & he was not ready and willing to perform his part of contract. This finding recorded by the learned trial Court without framing specific issue in this regard is not sustainable in the eye of law. Further, according to the aforesaid guidelines of Hon’ble Apex Court, the object and purpose of framing issue is so 11 that the parties to the suit can lead the specific evidence on the same but the learned trial Court without framing specific issue partly allowed the suit of the plaintiff entitling him to receive advance amount of Rs.21,000/- from the defendant No.1. Thus, the issues framed in the suit filed by the plaintiff for specific performance of contract by the learned trial Court, are not in accordance with the guidelines of Hon’ble Apex Court and not in accordance with the opinion of this Court & not according to the facts and circumstances of the present case. 15. In view of the aforesaid discussion and in the light of guidelines of this Court in Bhagirathi (supra) as also Hon’ble Apex Court in the matter of V.S. Ramakrishnan (supra), the impugned judgment and decree dated 20.06.2016 are set aside. The matter is remitted back to the trial Court concerned to decide and dispose of the suit in accordance with law on merits after framing a specific issue on the readiness and willingness on the part of the plaintiff to perform his part of contract and allowing the parties to lead evidence on this issue. Needless to mention that the parties may amend their pleadings, if they so desire. 16. Considering the facts and circumstances of the case, in particular the fact that the parties are contesting for the last more than 09 years, the learned trial Court is directed to decide the proceedings expeditiously by recording plaintiff’s 12 evidence within three months and defendants’ evidence in next three months and thereafter dispose of the suit in next two months. 17. Both the parties are directed to appear before the trial Court concerned on 01.07.2025. 18. This Court has not expressed anything on merit and the trial Court shall decide the suit in accordance with the provision of specific performance of contract without being influenced by the observation made by this Court. 19. The appeal is accordingly allowed to the aforesaid extent. There shall be no order as to costs. Sd/- Sd/- (Rajani Dubey) (Sachin Singh Rajput) Judge Judge pekde Digitally signed by VIJAY BHARATRAO PEKDE