In Re: Nagarapur Kanakaiah

G. Radhakrishna Rao, J.—Plaintiff filed a suit for specific performance of agreement of a sale, dated 27.2.1984 executed by the 1st Defendant on behalf of his minor son D-2 for Rs. 1,31,250 in respect of the plaint schedule property or in the alternative for recovery of damages for Rs. 1,00,000. The Subordinate Judge after having felt that many fictitious, false and vexatious suits for specific performance of contracts are being filed as a counter-blast to some other cases pending in some other courts, directed the Plaintiff to deposit the balance of consideration of about Rs. 1,25,000. The counsel for the Plaintiff also conceded before the Subordinate Judge that it is the discretion of the court to direct deposit of the balance of sale consideration into court at any stage. Against that order directing the Plaintiff to deposit the balance of the sale-consideration, the Plaintiff filed the present revision petition.

Sri Kanyaka Prasad, learned Counsel for the Petitioner contended that the stage for directing the Plaintiff to deposit the balance of consideration will raise only in the event of the Defendant’s objection that the Plaintiff has no capacity to pay the amount. Prior to the amendment, the law was that there must be an allegation in the plaint that the Plaintiff was ready and willing to perform his part of the contract. In view of the legal position that has been emerged from the decisions of the various High Courts and the Supreme Court. Section 16 of the Specific Relief Act has been amended.

Section 16(c) of the Specific Relief Act makes it obligatory for the Plaintiff to aver in the plaint and also to prove that he has performed or has always been ready to perform the essential terms of the contract which are to be performed by him.

In G. Shivayya v. Shivappa Basappa AIR 1978 Kar 98, the learned Judge took the view that the plaint, however, need not be followed by the actual deposit when a contract involves such payment, but there must be proper averments in the plaint regarding the Plaintiff’s willingness to perform his part of the contract followed by the evidence to prove it. It was further observed that the conduct of the Plaintiff should not be anything other than learned Judge considered the averments that have been made in the plaint. After the amendment, it is common that in all the suits for specific performance, the allegations are to the effect that they are ready and willing to deposit that amount.

In the case on hand, notice has been issued before filing the suit. That is not the stage for the Defendant to raise objection about the incapacity of the Plaintiff to pay the balance of the amount. The learned Judge further observed in the above cited case:

The fact that he has deposited the balance amount on 5th June, 1970 is admitted, but it cannot be weight in favour of the Plaintiff since the deposit was made after about four and half years from the date of Ex.P-1. Ex.P-1 prescribed a period of one year for performing the contract.

Ramaswamy, J., in United Poineer Society v. Chand Beebi 1986 (2) APLJ 79, considered the effect of raising the pleas with regard to averments in the plaint itself. It is well-established that, in the absence of specific plea about the readiness for the performance of the contract, the suit is liable to be dismissed.

Now we are concerned in this case about the direction given by the Subordinate Judge for depositing the amount. The Plaintiff alleged that he has got bank balance of about Rs. 1,50,000 and he produced a certificate to that effect. The latest trend in filing false and vexatious suits for specific performance has been experienced by the Subordinate Judge. The court has got ample power in spite of the averments contained in the plaint to direct the party to deposit the money in the event of entertaining a doubt about the bonafide nature of the plea that has been set up by the Plaintiff in the plaint. The mere fact that averments have been made as contemplate u/s 16(c) of the Specific Relief Act, it cannot be said that the court has no power to order deposit of the amount. It has been notice in many cases that where consideration is about Rs. 1,00,000 the parties are producing a specific agreement of sale with a condition that they have paid only Rs. 5,000 or Rs. 10,000 as advance. The agreement of sale need not be registered and it can easily be brought into existence at any time with the active connivance of the scribe and the attestors. Where the consideration amount is on high side and the amount of advance paid is low, it is desirable to put a check on the suitors in preventing them from filing false and vexatious suits: Section 16 of the Specific Relief Act contemplates the past, present and future conduct of the Plaintiff about his readiness in deposing the balance amount of consideration. The burden is on the Plaintiff to prove that he is ready and willing to perform the terms of the contract before filing the suit or at the time of filing the suit or subsequent to the filing of the suit. The agreement with regard to payment of balance amount as per agreement has already been over. When the Plaintiff was having bank balance, nothing prevented him to deposit the same to prove his bona fides. On the date of the filing of the suit, he may be having bank balance, but there is no guarantee whether he will not withdraw the same. When there is no guarantee about not withdrawing the amount and the court at the time of registering the plaint cannot pass an order not to withdraw the amount the only alternative that is available to the judicial officer is to give a direction to deposit that amount into court. After the Defendant has put in his appearance, the Plaintiff cannot ask for refund of the money with a direction to deposit the same as and when required by the court. Similarly in a case were fifty per cent of the consideration has already been paid, the court need not generally insist on the deposit of the balance amount as substantial amount has already been paid as advance. With experience, it is the duty of the subordinate judicial officers to consider whether in a given case a direction can be given to deposit the balance to find out the truth or otherwise of the allegation that has been made in the plaint about the readiness of the Plaintiff to perform his part of the contract. When the Subordinate Judge with experience found that false and vaxatious suits are being filed, he is certainly at liberty to ask for deposit of money. When the discretion has been exercised by the judicial officer in a given set of circumstances, it is not open to the party to approach the High Court and invoke Section 115, Code of Civil procedure, to revise that order. By giving a direction, we cannot say that the officer has committed any illegality or the order that has been passed by him is without jurisdiction. The High Court must be conscious of the fact about the revisionable powers conferred u/s 115, CPC This Court found that in rent control cases, the tenants are protracting litigation for years together and when ultimately they failed in the High Court they are filing suits for specific performance by showing that a party amount has been paid as advance. Such type of litigations should not be encouraged. The courts are meant for better administration of justice to the satisfaction of the needy litigant public and they are not meant for unscrupulous and undesirable clients coming to courts with unclean hands. In the case of registration of suit for specific performance, ample discretion is left with the judicial officer to direct the deposit of money or without direction to register the case if he is satisfied about the averments that have been made in the plaint are in conformity with Section 16 of the Specific Relief Act. It is also often observed that false documents are being filed with a view to achieve the objects. This opinion might have been gained under an impression that even if forged documents are filed, the courts generally will not order prosecution.

The discretion exercised by the Subordinate Judge at the time of registering the plaint by applying his judicial conscience either for deposit or for not deposit of the balance of consideration should not ordinarily be interfered with by the High Court under the guise of the powers conferred u/s 115 Code of Civil procedure.

In the result, the revision is dismissed. The Petitioner is, however given one month's time for depositing the balance amount.