M.P. Housing Board and Others vs Smt. Malti Bhadoria

D.K. Paliwal, J.—This first appeal has been preferred u/s 96 of CPC being aggrieved by the judgment and decree passed in Civil Suit No. 2-A/2000 on 15th September, 2010 by 4th Additional Judge to First Additional District Judge, Gwalior, whereby the suit filed for granting decree of declaration, specific performance and perpetual injunction against the appellants/defendants No. 1 to 3 has been decreed and appellants have been directed to execute the sale-deed in favour of the plaintiff/respondent on payment of Rs. 8,37,266/- and lease amount from the year 2005 onwards along with interest at the rate of 8% per annum from 5.6.2006 till the date of execution of the sale-deed/transfer deed. The relevant facts in brief are that respondent/plaintiff filed the suit pleading that she is the owner and in possession of the house constructed on plot No. 180 situated at Tansen Nagar, Gwalior. A plot bearing No. 178 situated at Tansen Nagar was allotted to her father, namely Shri Babu Singh Kushwah, on 5th June, 1968. In the year 1970, her father Babu Singh Kushwah constructed a room in plot No. 180. In the year 1974, the plaintiff was married and father of the plaintiff has given the room constructed on plot No. 180 for the residence of plaintiff and her husband. Since then, the plaintiff is residing in the said room. Possession of the Plaintiff was hostile and uninterrupted for more than twelve years, therefore, on the basis of adverse possession, plaintiff has perfected her title. It is further averred that on 26.11.1986 Executive Engineer informed the plaintiff that her father is an encroacher. Again on 14.9.2000 the competent authority of the M.P. Housing Board considered the matter and called husband of the plaintiff who disclosed that house is constructed on plot No. 180. Executive Engineer informed him that the plot belongs to M.P. Housing Board. Thereafter, plaintiff submitted an application for the allotment of the disputed plot in her favour. On consideration of the application, the Estate Officer, M.P. Housing Board, informed the plaintiff that the disputed plot admeasuring 1980 square feet can be purchased by the plaintiff at the rate of Rs. 178.50 per square feet. Again on 28.11.2000 vide letter No. 13463, plaintiff was informed that on payment of Rs. 3,72,300 the disputed plot can be allotted to the plaintiff. The plaintiff approached the office of the defendants for depositing the aforesaid amount, but the defendants refused to accept the aforesaid amount and when plaintiff asked to give the same in writing, vide letter No. 39 Sa.Aa./Gwalior dated 2.1.2001, she was informed that till further orders she should not deposit the aforesaid amount. Thereafter, vide letter No. 12521/Sa Aa/03 dated 18.9.2003, the plaintiff was informed to deposit Rs. 5,86,678 within 30 days. Plaintiff submitted that she was ready to deposit the amount at the rate of Rs. 180/- per square feet but the same was not accepted and now she is asked to deposit Rs. 5,86,678, hence, it is prayed that she be directed to deposit the amount as demanded earlier. However, the prayer of the plaintiff was not considered and vide letter dated 31.5.2006 defendant No. 2 informed the defendant No. 3 that allotment of the disputed plot is revived with the condition that plaintiff should deposit the amount along with interest by 15.6.2006, otherwise allotment order shall stand automatically cancelled. In compliance of the order, defendant No. 3 vide letter dated 5.6.2006 asked the plaintiff to deposit the amount of Rs. 8,37,266 by 15.6.2006, failing which the allotment order shall stand cancelled. The plaintiff prayed for review of the order, but the same was not considered and vide letter dated 29.9.2006 the allotment of the plot to the plaintiff has been cancelled. By amendment it is averred that plaintiff is ready and willing to deposit the amount of Rs. 3,72,300 in pursuance of the order dated 14.9.2000 and 28.11.2000. The plaintiff is also ready and willing to deposit the amount of Rs. 8,37,266/- It is prayed that it be declared that plaintiff has acquired the title of the disputed property as she is in possession of the property since 1974 and has acquired the title by adverse possession. Alternatively it has been prayed that defendants be directed to execute the sale-deed of the disputed plot in her favour and if the defendants fail to execute the sale-deed, the same be executed by the Court.

The appellants/defendants in their written statement denied the averment that plaintiff is owner and in possession of the disputed plot No. 180. It is admitted that plot No. 178 was allotted to the plaintiff''s father and possession was handed over. It is admitted that notice for encroachment was given by the Executive Engineer to father of the plaintiff. The plaintiff has not deposited the amount as directed by the competent authority, therefore, the allotment in favour of the plaintiff has been cancelled. It is denied that plaintiff had approached the office of the defendants several times to deposit the amount, but they refused to accept the same. It is further denied that plaintiff was ready and willing to deposit the amount as per letter dated 15.6.2006. It is stated that plaintiff is still not ready and willing to deposit the amount of Rs. 8.37,266. The relief claimed by the plaintiff during the pendency of the suit is time barred. It is prayed that suit be dismissed.

Learned Trial Court after considering the material and evidence on record, held that possession of the plaintiff over the suit land was permissible since 1986 and she was mere a licensee, and therefore, cannot claim title on the strength of adverse possession. It is further held that cancellation of allotment was illegal, arbitrary, capricious and ultra vires. Learned Trial Court also recorded a finding that plaintiff was ready and willing to perform her part of contract. On the basis of the findings, the suit has been decreed partly. Being dissatisfied with the judgment and decree, appellants/defendants have preferred this appeal.

It is submitted by Shri Harish Dixit, learned counsel for the appellants, that learned Trial Court has not rightly and properly appreciated the evidence on record. It is further contended that the respondent/plaintiff has failed to deposit the amount within time and failed to prove that she was ever ready and willing to deposit the amount and, therefore, allotment was validly cancelled. It is further contended that the suit for specific performance is hopelessly time barred. It is prayed that the judgment and decree be set aside and the suit of the plaintiff be dismissed.

Shri Sarvesh Sharma, learned counsel for the respondent, supported the findings recorded by the learned Trial Court and prayed for dismissal of this appeal.

In view of the rival submissions of the learned counsel for the parties, we have closely scrutinized the record of the Trial Court.

It is not disputed that plot No. 180 situated at Tansen Nagar, Gwalior, belongs to appellants/M.P. Housing Board and appellants/defendants have made an offer to the plaintiff/respondent that she can purchase the disputed plot at the rate of Rs. 178.50 per square feet by 31.8.2000. It is also not disputed that defendants/appellants vide letter No. 13463 dated 28.11.2000 have allotted the plot at the rate of Rs. 180 per square feet asking the plaintiff to deposit the total amount of Rs. 3,72,300 by 31.12.2000, failing which this allotment shall stand cancelled. It is also not disputed that vide letter No. 12521/Sa Aa/03 dated 18.9.2003, plaintiff was asked to deposit the amount of Rs. 5,86,678 within 30 days and complete the formalities of lease deed. Vide letter dated 5.6.2006 the plaintiff was asked to deposit the amount of Rs. 8,37,266 by 15.6.2006 otherwise the allotment shall stand cancelled.

From the perusal of the record, it appears that suit was filed on 20.6.2007 for declaration, permanent injunction and mandatory injunction. The plea of specific performance has been introduced vide amendment dated 19.2.10. The learned counsel for the appellants submits that the limitation prescribed under the Limitation Act for instituting a suit for specific performance of the contract is three years under Article 54 of the Limitation Act. The appellants/defendants have cancelled the allotment vide letter dated 29.9.2006 and the plea of specific performance has been introduced vide order dated 19.2.2010 after about 3 years and 4 months. The learned counsel for the appellants placing reliance on J. Samuel and Others Vs. Gattu Mahesh and Others, urged that this amendment should not have been allowed by the learned Trial Court being prejudicial to the appellants. The learned counsel for the respondent submits that appellants have not challenged the order allowing the amendment, therefore, the submission of learned counsel for the appellants is devoid of merits.

It is useful to refer to Order 16 Rule 17 CPC which reads as under:-

Amendment of pleadings.- The court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trail has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

The said provision was omitted by the CPC (Amendment) Act, 1999.

After stiff resistance by the litigants and the member of the Bar, again Order 6 Rule 17 was reintroduced with proviso appended therein. As per the said proviso, no application for amendment shall be allowed after the trial has commenced. However, there is an exception to the said Rule i.e. if the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial, such application for amendment may be allowed.

Before proceedings further, it is also useful to refer to Section 16(c) of the Specific Relief Act, which reads as under:-

Personals bars to relief.- Specific performance of a contract cannot be enforced in favour of a person.-

(a)-(b) * * * *

(c) who fails to aver and prove that he has preformed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.

Explanation.- For the purposes of clause (c),-

(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;

(ii) the plaintiff must ever performance of, or readiness and willingness to perform, the contract according to its true construction.

It is clear that in a suit for specific performance of a contract, unless there is a specific pleading that he has performed or has always been ready and willing to perform the essential terms of the contract, the suit filed by him is liable to be dismissed. In other words, in the absence of the above said claim that he is always ready and willing to perform his part of the contract, the decree for specific performance cannot be granted by the court.

In the present case, the application for amendment under Order 6 Rule 17 CPC was filed on 8.2.2010. As noticed earlier, Section 16(c) of the Specific Relief Act contemplates that specific pleading have to be made in the plaint by the plaintiff that he has performed and has always been willing to perform the essential terms of the contract which have to be performed by him. This is an essential ingredient of Section 16(c) of the Specific Relief Act. The proviso inserted in Rule 17 clearly provides that no amendment shall be allowed after the trial has commenced except when the courts comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. On proper interpretation of the proviso to Rule 17 of Order 6, the party has to satisfy the court that it could not have discovered that ground which was pleaded by amendment, in spite of due diligence. Learned counsel for the respondent is not able to point out that in spite of due diligence the ground which was pleaded by amendment could not have been discovered. The court''s discretion to grant permission for a party to amend his pleading lies on two conditions, first, no injustice must be done to the other side and secondly, the amendment must be necessary for the purpose of determining the real question in controversy between the parties. In the given facts of the case, learned counsel for the respondent is not able to show that plaintiff/respondent had exercised due diligence. In fact, a suit for specific performance could have been easily filed much prior because in our opinion, the respondent had the cause of action to sue for specific performance on 29.9.2006, but the respondent/plaintiff omitted to do so. Having done that, she should not be allowed to sue on that cause of action which she omitted to include when she filed the suit. This Court may consider plaintiff''s omission to include the relief of specific performance in the suit which she filed when she had cause of action to sue for specific performance as relinquishment of that part of the claim. The suit filed by the respondent/plaintiff, therefore, is hit by the provisions of Order 2 Rule 2 of CPC.

In the case of Vishwambhar and Others Vs. Laxminarayana (Dead) through L.Rs. and Another, , it has been held by the Apex Court that "if as a result of allowing the amendment, the basis of the suit is changed, such amendment even though allowed, cannot related back to the date of filing the suit to cure the defect of limitation." Again in K. Raheja Constructions Ltd. Vs. Alliance Ministries and others, it has been held by the Apex Court that an application for amendment filed 7 years after the filing the suit to include the plea of specific performance, would not defeat the valuable rights of limitation accruing to the other side.

Thus, the amendment introduced by the respondent/plaintiff is clearly barred by limitation under Article 54 of the Limitation Act. The Hon''ble Apex Court in Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit (Regd.) Vs. Ramesh Chander and Others, wherein appellant, a Co-operative Housing Society, entered into agreement to sell with respondent vendor and no date was fixed for performance in the agreement for sale entered between the parties, has held that omission to claim relief of specific performance of agreement to sell amounts to relinquishment of that part of claim. Subsequent inclusion of plea of specific performance by way of amendment after 11 years of filing of suit cannot be allowed being barred by limitation under Article 54 of the Limitation Act.

The present case is squarely covered by the principle laid down in Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit (Regd.) Vs. Ramesh Chander and Others, , therefore we are of the opinion that the submission of the learned counsel for the appellants that plaintiff''s suit is barred by limitation has merits and deserves to be accepted.

The learned counsel for the appellants has submitted that plaintiff/respondent failed to prove the essential ingredients of specific performance of the contract i.e. readiness and willingness to perform her part of contract. Reliance has been placed in Faquir Chand and Another Vs. Sudesh Kumari, . To appreciate the submission, it would be proper to refer the provision of Section 16(c) of the Specific Relief Act which reads as follows:-

Personals bars to relief.- * * * (a) - (b)

* * *

(c) who fails to aver and prove that he has preformed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.

Explanation.- For the purposes of clause (c),-

(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;

(ii) the plaintiff must ever performance of, or readiness and willingness to perform, the contract according to its true construction.

Thus the language u/s 16(c) of the Specific Relief Act requires that readiness and willingness has to be in spirit and substance and not in letter and form.

Now we have to examine whether the plaintiff/respondent is able to establish her readiness and willingness to perform her part of contract in spirit and substance.

Smt. Malti Bhadauria (PW-1) in her affidavit filed before the plea of specific performance was introduced, has stated that she always remained ready to deposit the amount of Rs. 3,72,300. In view of letter (Ex. P/2), she visited the office of the defendants so many times, but the officers of the defendants refused to receive the deposit. When she asked defendant No. 3 to give the same in writing, a letter (Ex. P/3) was issued on 2.1.2001. She further stated that vide letter (Ex. P/4) she was asked to deposit Rs. 5,86,678. She stated that thereafter she requested the defendants that she remained ready from the beginning and they themselves did not accept the deposit, but the defendants have not paid any heed to her request and asked her to deposit Rs. 8,37.266 upto 15.6.2006 vide Ex. P/6. She remained ready to deposit the amount as per Ex. P/2, but her allotment has been cancelled. After amendment, the plaintiff has submitted another affidavit under Order 18 Rule 4 CPC and stated that defendants informed her vide Ex. P/6 to deposit Rs. 8,37,266. She was ready and willing to deposit the same and is still ready. She further states that defendants are increasing the rates of the plot time and again, whereas as per Ex. P/1 the rates were fixed at the rate of Rs. 178.50 per square feet. She further stated that she approached the office of the defendants several times, but she was not permitted to deposit the amount. Shankar Singh Bhadauria (PW-2), who is the husband of the plaintiff, has supported the statement of Smt. Malti Bhadauria (P.W. 1).

Malti Bhadauria (PW-1) in para 20 has stated that in compliance of letter dated 28.11.2000, she went to the office of Housing Board to deposit the amount of Rs. 3,72,300, but the officers of the defendants told her that when the documents will be available, the amount will be deposited. It is necessary to mention here that nowhere in the pleading the plaintiff/respondent has stated that for the want of documents, the officers of the Housing Board refused to accept the amount. Thus, she has improved her version before the Court.

In para 20, Malti Bhadauria (P.W. 1) admits that there is a bank adjacent to the office of Housing Board. She is well aware that amount can be deposited in the bank. Had this witness really keen to deposit the amount and the officers of the Housing Board refused to accept the same, she could deposit the amount in the bank, but she has not done that. No explanation has been given by her for the same in her statement.

In para 21, Smt. Malti Bhadauria (P.W. 1) says that she does not know what is written in the plaint, her husband knows about it. She further states in para 22 that whatever has been written in her affidavit is also in the knowledge of her husband. Thus, Smt. Malti Bhadauria herself falsifies her statement that she visited so many times to the office of Housing Board to deposit the amount but the officers of the defendants refused to receive the deposit.

In para 2 of her cross-examination, Malti Bhadauria (P.W. 1) says that when she went to the office of Housing Board to deposit Rs. 8,37,266/-, she did not have any application. She admits that she has not filed any application that she is ready to deposit the amount of Rs. 8,37,266/-.

Shankar Singh Bhadauria (PW-2) has admitted in para 18 of his cross-examination that the amount demanded by the Housing Board since 2000 regarding the disputed plot has not been deposited. He says that he went to the office of the defendants so many times to deposit the amount, but they refused to accept the same. This witness is unable to specify the months and dates of his visit to the office of Housing Board. He admits that till 31.12.2000 his wife has not submitted any application for depositing the amount of consideration. He says that he cannot say why the application has not been submitted to deposit the amount. In para 20 he has admitted the signature of Malti Bhadauria on Ex. P/11 and Ex. P/12. He further admits that in these applications Malti Bhdauria has requested to extend the time for depositing the amount of consideration. In para 17, he had categorically admitted that he knows that the amount regarding the plot belonging to M.P. Housing Board is to be deposited through Challan in the Union Bank. It is profitable to mention that this witness has admitted in para 25 that he has deposited Rs. 20,000 vide Challan (Ex. P/8). He has admitted that no one has asked him in writing to deposit the amount vide Ex. P/8. Thus, it is clear from the statement of Shankar Bhadauria that he is fully aware that the amount to be paid to the Housing Board can be deposited through the Challan in Union Bank. We fail to understand that when this witness had deposited Rs. 20,000/- on account of disputed plot in the bank, why the amount of Rs. 8,37,266/ asked by the defendants vide letter dated 5.6.2006 could not be deposited in the bank if the officers of the Housing Board had refused to accept the same. We also fail to understand that when the plaintiff/respondent was ready and willing to deposit the amount as demanded by the defendants, then why she sought extension of time vide Ex. P/11 and Ex. P/12. On the one hand plaintiff wants us to believe that she was ready and willing to deposit the amount and the officers of the defendants refused to accept it and on the other, she sought extension of time for depositing the amount. The plaintiff cannot be allowed to blow hot and cold together.

In view of above analysis we find that the testimony of Malti Bhadauria (PW-1) and Shankar Bhadauria (PW-2) does not inspire confidence of the Court. Plaintiff was never ready and willing to deposit the amount as demanded by the defendants for making allotment of the disputed plot in favour of the plaintiff. If the plaintiff was really ready and willing to deposit the amount, no one prevented her to deposit the same in the bank through Challan which is situated adjacent to the office of defendants/appellant, but the plaintiff did not deposit the amount in the bank. No explanation has been given for the same. The plaintiff has also not filed any application in writing requesting defendants to receive the amount. Had really plaintiff visited the office of the defendants and wanted to make the payment, then on refusal by the defendants to accept the same, she could have filed an application to show her bona fide but no such application has been filed, nor the amount has been deposited in the bank through challan. Therefore, we are of the opinion that the plaintiff was not at all ready and willing to deposit the amount.

In view of the above discussion, we hold that it is not proved that plaintiff was ready and willing to deposit the amount of consideration and further the suit for specific performance of contract is barred by limitation. The finding of the learned trial court that respondent /plaintiff was ready and willing to deposit the amount as demanded by the appellants and thus was ready and willing to perform her part of contract and that cancellation of allotment was illegal, arbitrary, capricious and ultra vires and the suit is within limitation is perverse inasmuch as the same is based on improper appreciation of evidence available on record, unfounded assumptions and pure conjectures. Therefore the judgment and decree passed by the trial court is liable to be set aside. Resultantly, F.A. No. 05/2011 is allowed. The judgment and decree passed by the trail court is set aside and the suit filed by the respondent/plaintiff is dismissed. The respondent shall bear her cost as well as of appellants/defendants. Advocate fee as per schedule.

Decree be drawn up accordingly.