TMI Blog2014 (3) TMI 1166X X X X Extracts X X X X X X X X Extracts X X X X ..... on seeking performance means that the person claiming performance has kept the contract subsisting with preparedness to fulfill his obligation and accept the performance when the time for performance arrive. The plaintiffs-appellants were always ready and willing to discharge their obligation and perform their part of the agreement. In our considered opinion, the undisputed facts and events referred, shall amount to sufficient compliance of the requirements of Section 16(c) of the Specific Relief Act - the impugned judgment passed by the High Court cannot be sustained in law. Appeal allowed. - Civil Appeal No.3672 Of 2007 - - - Dated:- 14-3-2014 - Jagdish Singh Khehar And M.Y. Eqbal, JJ. JUDGMENT M.Y. Eqbal, 1. This appeal is directed against the judgment and order dated 28.3.2005 passed by Calcutta High Court in S.A. No.244 of 1987 whereby the judgment and decree passed by the Trial Court as also the Appellate Court has been reversed and the suit was dismissed holding that the suit itself was barred by limitation and lack of relevant pleading and evidence disentitle the plaintiff-appellant to get a decree for specific performance and for re-conveyance of the suit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his appeal by special leave by the plaintiff-appellants. 6. From the impugned judgment passed by the High Court it appears that the High Court formulated the following substantial questions of law and considered the same while allowing the appeal: 1) Whether the Learned Courts below erred in law in granting a decree for specific performance of contract notwithstanding the fact that the necessary averment as required by the provisions of the Specific Relief Act were absent in the plaint. 2)Whether from the materials on records both the learned Courts below ought to have held that the plaintiffs had failed to plead and prove that they were ready and willing to perform their part of contract. 3)Whether the prayer for specific performance of contract in the instant case is barred by limitation. 4)Whether the amendment as prayed for was rightly allowed and whether on the basis of the said amendment both the Courts below rightly decreed the suit. 7. Before we proceed with the matter, it would be proper to first go through the judgment of remand passed by the Additional District Judge in first round of appeal being Title Appeal No.350 of 1974, which was preferred agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rayer of the plaintiffs is for restoration of the land in terms of the agreement either by reopening the transaction or by specific performance of contract. Considering all these, I for the ends of justice remand the suit for giving the plaintiffs an opportunity to amend the plaint in the light of observation made above in my judgment. The result the appeal succeeds. Memo of appeal is correctly stamped. Hence, ORDERED that the appeal be allowed on contest without costs. The judgment and decree of the learned Munsif are hereby set aside. The suit be remanded to the trial court for allowing the plaintiff an opportunity to amend the plaint for making a prayer for specific performance of contract. The plaintiff shall pay a cost of ₹ 30/- (Rupees Thirty) to the defendants for making such amendment. The defendants shall get opportunity to file additional written statement. The amendment shall be effected within two months from the receipt of record of this suit. In default, the plaintiffs suit shall stands dismissed. After the amendment the learned Munsif shall decide the suit on taking further evidence if the parties like to adduce and on the basis of evidence on record in te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cter of the suit was changed and such amendments have been wrongly allowed in favour of the plaintiffs-appellants. 15. Mr. S.B. Sanyal, learned senior counsel appearing for the appellant, vehemently contended that the impugned judgment of the High Court is vitiated in law for not following the mandatory requirements of Section 100 of the Code of Civil Procedure (in short Code ). As a matter of fact, the High Court has adopted wrong procedure in dealing with the second appeal. 16. Mr. Sanyal further contended that the High Court while entertaining the appeal for admission has to formulate substantial question of law involved in the said appeal for consideration and only after giving notice to the respondents an opportunity of hearing on those substantial questions of law, shall finally decide the appeal. In this connection, learned senior counsel relied upon the decision of this Court in the cases of Sasikumar Ors vs. Kunnath Chellappan Nair Ors., (2005) 12 SCC 588 and Gurdev Kaur Ors.vs. Kaki Ors., (2007) 1 SCC 546. We find force in the submission of Mr. Sanyal. 17. Section 100 of the Code lays down the provision with regard to second appeal which reads as under:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s any memorandum, it shall record the reasons for such rejection. (3) Where a memorandum of appeal is amended, the Judge, or such officer as he appoints in this behalf, shall sign or initial the amendment. 20. It is, therefore, clear that if a memorandum of appeal arising out from an appellate decree is not drawn up in the manner provided in the Code, the Court may reject the memorandum of appeal or return the same for the purposes of being amended within the time fixed by the Court. 21. In the instant case what the High Court has done is evident from its order dated 13.1.1987. The order reads as under:- This appeal will be heard on all the grounds and issue a Rule and stay as prayed for 22. The aforesaid order shows that the High Court while admitting the appeal has not formulated any substantial question of law and it was only after the arguments were concluded some questions of law were formulated and the appeal was decided by passing the impugned judgment. 23. The law is well settled by catena of decisions of this Court that jurisdiction of the High Court to entertain a second appeal is confined only to such appeals which involves substantial question of la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of the specific words in the plaint would not result in dismissal of the suit if sufficient fact and evidence are brought on record to satisfy the court the readiness and willingness to perform his part of the contract. In the case of Kedar Lal Seal Anr. vs. Hari Lal Seal, AIR (39) 1952 SC 47, this Court has held that the Court would be slow to throw out the claim on mere technicality of the pleading. The Court observed: 51. I would be slow to throw out a claim on a mere technicality of pleading when the substance of the thing is there and no prejudice is caused to the other side, however clumsily or inartistically the plaint may be worded. In any event, it is always open to a court to give a plaintiff such general or other relief as it deems just to the same extent as if it had been asked for, provided that occasions no prejudice to the other side beyond what can be compensated for in costs. 27. In the case of Syed Dastagir vs. T.R. Gopalakrishna Setty, (1999) 6 SCC 337, this Court dealing with a similar issue observed: 9. So the whole gamut of the issue raised is, how to construe a plea specially with reference to Section 16(c) and what are the obligations wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal, when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible. One drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence. 18. If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 31. In the case of Cort and Gee vs. The Ambergate, Nottingham and Boston and Eastern Junction Railway Company, (1851) 17 Queen's Bench Reports 127, the Court observed that In common sense the meaning of such an averment of readiness and willingness must be that the non-completion of the contract was not the fault of the plaintiffs, and that they were disposed and able to complete it if it had not been renounced by the defendants. What more can reasonably be required by the parties for whom the goods are to be manufactured? If, having accepted a part, they are unable to pay for the residue, and have resolved not to accept them, no benefit can accrue to them from a useless waste of materials and labour, which might possibly enhance the amount of damages to be awarded against them. 32. In sum and substance, in our con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent my clients are ready to execute and register the sale deed in favour of you at our own cost after acknowledged receipt of the said amount of ₹ 3000/- from my clients within ensuring month of Bhadra after harvesting the said paddy dated 29.4.68. Sd/- Rabindra Nath Dutta Advocate 29.4.68 v) The plaintiffs again sent a notice on 6.6.1968 referring the reply dated 29.4.1968 and requesting the defendants to execute the sale deed after harvesting the paddy. The said letter is also extracted hereinbelow: From: NirendraNath Basu, Advocate, Bongaon, P.O. Dt. 24 Parganas To, 1 .Sri Narendra Nath Ghosh) Sons of Late Hazari Lai Ghosh 2. Sri Harendra Nath Ghosh) Residents of Village Narikela, P.O. Gaighata, Dt. 24 Parganas, Dated at Bongaon on the 6th day of June, 1968. Sir, In pursuance of the letter dated 29/4/1968 sent on behalf of your Advocate Rabindra Nath Dutta under instruction of my clients Sri Biswanath Ghosh, Sri Gurupada Ghosh, Sri Tarak Basi Ghosh. You are informed that after harvest the 'Aush Paddy' within the month of Bhadra and within the said month acknowledged receipt a sum of ₹ 3000/- in cash from my client and execute and register a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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