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Judgment
Prafulla C. Pant, J.—This appeal, preferred u/s 100 of Code of Civil Procedure, 1908, is directed against the judgment and decree dated 27.03.1993, passed by first appellate court (Civil Judge, Roorkee), in civil appeal No. 16 of 1984, whereby said court, has set aside the judgment and decree dated 23.01.1984, passed by the trial court (Munsif, Roorkee) in suit No. 127 of 1973, and decreed the suit, filed by the plaintiff/respondent.
Heard learned Counsel for the appellant and perused the lower court record.
This Second Appeal was admitted on following substantial questions of law, after it is received from Allahabad High Court, where it was filed in the year 1993:
Whether the suit is not maintainable in civil court, in view of the provisions of U.P. Act 13 of 1972?
Whether the suit cannot be decreed for relief sought under the Specific Relief Act, 1963, for the reason that the plaintiff himself has not complied with the terms of the compromise contract, relied by him?
Brief facts of the case are that defendant/appellants are the owners and the landlord of the property in suit, situated at Chowk Bazar, Roorkee. In said house earlier plaintiff-Vishwamitra Agarwal, was the tenant. It appears that the landlord-Om Prakash, instituted suit in the year 1959, for eviction of the present plaintiff from the property in suit by filing suits No. 269 of 1959 and 270 of 1959. Said suits were decreed in terms of compromise dated 12.03.1962, and the present plaintiff agreed to vacate the house in question on the condition that whenever owner/landlord constructs a room on the roof of the house, the same shall be let out to the present plaintiff on rent, fixed by present defendant No. 2 Jagmohan Lal. In the year 1972, owner/landlord (present defendant/appellant) appears to have constructed the new room. The present plaintiff instituted suit on 05.03.1973, for specific performance of compromise contract between the parties, mentioned above. Present defendant/appellant contested the suit, before the trial court and pleaded that no rent was got fixed by the present plaintiff, as such, since the terms of the compromise agreement were not fulfilled, the present plaintiff cannot get the decree of specific performance of contract. The defendant/appellant also took other pleas in the written statement.
The trial court framed as many as 12 issues, and after recording the evidence and hearing the parties, dismissed the suit, holding that the plaintiff failed to get the rent fixed in terms of compromise decree. Aggrieved by said judgment and decree dated 23.01.1984, passed by the trial court (Munsif, Roorkee), first appeal was filed by the present plaintiff, before the first appellate court, which was registered as civil appeal No. 16 of 1984. Learned Civil Judge, Roorkee, to whom said appeal was transferred for disposal, after hearing the parties, allowed the appeal and decreed the suit. Hence this second appeal was filed by the defendant owner, before the Allahabad High Court, on 17.05.1993, from where it is received by transfer to this Court for its disposal. Notices were issued by this Court to the parties concerned but the plaintiff/respondents have not turned up to contest the appeal.
Answer on substantial question of law No. 1: Section 11 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, provides that no person shall let out any building except in pursuance to the allotment order, issued u/s 16 of the Act. Learned Counsel for the appellant contended that the landlord could not have been compelled to let out the building in violation of said section. In the facts and circumstances of the present case, this Court is of the view that submission, advanced on behalf of the appellant is misconceived, for the reason that the room in question, which was an independent tenement itself was constructed in the year 1972, and the aforesaid Act was inapplicable to it on the date of institution of the suit. Only the buildings, which were ten years old on the date of enforcement of the aforesaid Act, were covered under it. Therefore, the substantial question of law No. 1 stands answered against the appellant. 7. Answer to substantial question No. 2: Learned Counsel for the appellant contended that the suit for specific performance of contract, filed by the plaintiff/respondents, was based on a compromise decree, passed in suit No. 269 of 1959 and suit No. 270 of 1959, which were filed against the present plaintiff for his eviction from the house in question, and the plaintiff himself failed to fulfill the terms, as per the compromise decree, to entitle him letting out of the newly constructed room on the roof of the house in suit. And as such, the lower appellate court has erred in law in allowing the appeal and decreeing the suit filed by the present plaintiff/respondent.
Admittedly, the plaintiff/respondent Vishwamitra Agarwal, was earlier tenant in the house in suit, and defendant/appellant Om Prakash Jain, was the owner/landlord of the house in suit. It is also not disputed that landlord Om Prakash Jain, instituted suit No. 269 of 1959 and suit No. 270 of 1959, for eviction of the defendant-Vishwamitra Agarwal, and said suits were decided in terms of compromise between the parties entered on 12.03.1962. It is also not disputed that tenant in said suit agreed to vacate the house in suit on the condition that whenever new room is constructed on the roof of the house, the same shall be let out by the landlord to the original tenant Vishwamitra Agarwal on the rent, as fixed by one Jagmohan Lal. In fact, this compromise deed itself is the basis of the present suit, wherein the present plaintiff Vishwamitra Agarwal sought specific performance of contract that since new room on the roof of the house has been constructed, the landlord should be directed to let it out to the present plaintiff. One of the grounds on which the landlord Om Prakash Jain, contested the suit was that, after the room was constructed, present plaintiff, never got rent fixed by Jag Mohan Lal, as such, present plaintiff himself has violated the terms of agreement and the suit is liable to be dismissed. Section 16 of The Specific Relief Act, 1963, reads as under:
Personal bars to relief- Specific performance of a contract cannot be enforced in favour of a person-
a) Who would not be entitled to recover compensation for its breach, or
b) Who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or willfully acts at variance with, or in subversion of, the relation intended to be established by the contract, or
c) Who fails to aver and prove that he has performed 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 of 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 aver performance of, or readiness and willingness to perform, the contract according to its true construction.
In view of the above provision of law, the plaintiff was required to prove that he has fulfilled the terms of compromise deed dated 12.03.1962, entered between the parties. It has been found proved by the trial court after recording evidence that no rent was ever got fixed from Jagmohan Lal and as such, the landlord was not bound to permit the petitioner to enter in the room, constructed as a tenant. Jagmohan Lal, who was also a party in the suit, in the written statement, has denied that he was ever requested by the plaintiff to get fixed the rent. However, from the record, it appears that on 05.04.1973, the plaintiff Vishwamitra Agarwal, got the rent fixed by Jagmohan Lal. The lower appellate court appears to have allowed the appeal without taking note of the fact that said rent was got fixed only during the pendency of the suit (and not before filing of the suit). The record shows that the suit was instituted on 05.03.1973, while the rent was got fixed on 05.04.1973 i.e. one month after institution of the present suit. That being so, present plaintiff himself has not fulfilled the term, required for specific performance of contract on the part of the defendant/landlord. Therefore, decree of specific performance could not have been passed in view of the bar, provided u/s 16 of The Specific Relief Act, 1963. Accordingly, substantial question of law No. 2, stands answered.
For the reasons as discussed on answer to substantial questions of law No. 2, this appeal deserves to be allowed. The same is allowed. The impugned judgment and decree dated 27.03.1993, passed by first appellate court (Civil Judge, Roorkee), in civil appeal No. 16 of 1984, is set aside. The judgment and decree dated 23.01.1984, passed by the trial court (Munsif, Roorkee), in suit No. 127 of 1973, is restored. No order as to costs.