TaxTMI 
TaxTMI 
2014 (3) TMI 1166
X X X X Extracts X X X X
X X X X Extracts X X X X
....he appellants to the respondents. 4. In the year 1970, the appellants filed a suit being Title Suit No.215 of 1970 against the defendants before the Sub-Divisional Munsif, Bangaon under Section 36 of the Bengal Money Lenders Act, 1940. The said suit was resisted by the defendants-respondents, stating therein that the aforesaid sale deed executed by the plaintiffs was out an out-sale of the suit property and possession was also delivered to the respondents. The learned Munsif in terms of the judgment dated 20.12.1973 dismissed the suit. The plaintiffs then filed appeal against the said judgment being Title Appeal No.350 of 1974. The learned Additional District Judge, upon hearing the parties, allowed the appeal and remanded the matter back to the Trial Court with a direction to the Trial Court to allow the plaintiffs-appellants an opportunity for amending the plaint and to add prayer for specific performance of the contract and to pass fresh judgment in accordance with law. 5. Consequent upon the remand, the appellants amended the plaint by filing application on 1.3.1975 adding prayer for specific performance of contract to transfer the suit property in terms of the agreement ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dants-respondents in the reply letter expressed their willingness to reconvey the land but after harvest of aushpaddy on the suit land. Thereafter, the plaintiff issued another letter dated 6.6.1968 agreeing to have conveyance of the suit land after harvest on payment of Rs. 3000/-(Exhibit 'B2'). The defendant also replied to such letter (Exhibit 'B3') agreeing to reconvey the suit land after the harvest. 8. On the basis of these exchanges of letters and in the facts and circumstances of the case, the Appellate Court held that the plaintiff-appellants should be given opportunity to have specific performance of contract in terms of the agreement. The relevant portion of the finding and the order passed in the appeal is extracted hereinbelow: "The learned advocate for the plaintiffs- appellants submits in view of the facts and circumstances the plaintiffs should be given an opportunity to have a specific performance of contract in terms of an agreement (ext.1). Under the law time is not essence of contract in case of sale of land. The parties mutually extended the time as the letters passed between them indicate. The evidence on record does not speak for the fact....
X X X X Extracts X X X X
X X X X Extracts X X X X
....opportunity to the defendants-respondents for filing additional written statement. 10. In terms of the aforesaid judgment, the plaint was amended and a relief for a decree of specific performance was added in the said suit. The learned Munsif, after framing additional issue and considering the facts and evidence on record, decreed the suit for specific performance holding that the suit was not barred by limitation. While passing the decree, the plaintiff-appellant was directed to deposit consideration amount of Rs. 3,000/-. 11. Learned Munsif held that after the amendment was allowed and relief for decree of specific performance was added, it should be deemed that the suit for specific performance was filed on the date of institution of the suit i.e. 7.5.1970. 12. Aggrieved by the said judgment and decree passed by the Munsif, the defendants-respondents preferred an appeal being Title Appeal No.836 of 1983. The said appeal was heard and finally dismissed by the First Appellate Court holding that the suit was well within the period of limitation and it was not barred by limitation inasmuch as the amendment of the plaint related back to the date of the presentation of the pl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tial question of law. (2) An appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question." 18. From bare reading of the aforesaid provision it is manifestly clear that an appeal shall lie to the High Court from an appellate decree only if the High Court is satisfied that the case involves a substantial question of law. It further mandates that the memorandum of appeal precisely states the substantial quest....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Since the same has not been done, the impugned judgment is vitiated in law. 24. On the question of readiness and willingness, the High Court after relying upon some decisions of this Court allowed the appeal and set aside the judgment and decree of the Trial Court and the First Appellate Court. The only finding recorded by the High Court is extracted hereinbelow:- "In my view, both the Courts below totally neglected and failed to consider the point of readiness and willingness which must be continuous and both the Courts below also failed to consider that this readiness and willingness have not been averred and/ or not been proved. The Learned Appellate Court below without scanning the judgment and decree passed by the Learned Trial Judge wrongly dittoed the judgment and decree passed by the Learned Trial Judge and failed to perform its statutory obligations and/ or duties. In view of the discussions made above and in view of the decisions of the Hon'ble Apex Court referred to above, both the judgments and decrees passed by the Learned Trial Judge as well as the Learned Appellate Court are set aside. The suit is therefore, dismissed. Let a decree ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to be pleaded that he has performed or has always been ready and is willing to perform his part of the contract. In construing a plea in any pleading, courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one's case for a relief. Such an expression may be pointed, precise, sometimes vague but still it could be gathered what he wants to convey through only by reading the whole pleading, depending on the person drafting a plea. In India most of the pleas are drafted by counsel hence the aforesaid difference of pleas which inevitably differ from one to the other. Thus, to gather true spirit behind a plea it should be read as a whole. This does not distract one from performing his obligations as required under a statute. But to test whether he has performed his obligations, one has to see the pith and substance of a plea. Where a statute requires any fact to be pleaded then that has to be pleaded maybe in any form. The same plea may be stated by different persons through different words; then how could it be constricted to be only in any particular nomenclature or word. Unless a statute specifically requir....
X X X X Extracts X X X X
X X X X Extracts X X X X
....econd appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India vs. Ramkrishna Govind Morey, AIR 1976 SC 830, held that whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference." 29. In the case of Ardeshir Mama vs. Flora Sassoon, 55 IA (PC) 360, their Lordships of the Judicial Committee observed that "Where the injured party sued at law for a breach, going, as in the present case, to the root of the contract, he thereby elected to treat the contract as at an end and himself as discharged from his obligations. No further performance by him was....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s obligation and accept the performance when the time for performance arrive. 33. In the background of the principles discussed hereinbefore, we shall now consider the conduct of the plaintiffs-appellants and the act done by them in performance of their part of obligations. These may be summarized as under: i) Admittedly on 1.12.1964, two documents were executed viz. the sale deed in favour of the defendants on payment of Rs. 3,000/-. ii) An agreement of re-conveyance was also executed on the same day whereby the defendants agreed to return back the property within the stipulated time; iii) Before the expiry of the time stipulated in the deed of re-conveyance, the plaintiffs send a notice through a lawyer informing the defendants that as per the terms of the agreement of re-conveyance the plaintiffs tendered the amount of Rs. 3,000/- and requested them to execute the sale deed. The defendants deferred the date and time on one pretext or another. In the same notice, the plaintiffs reminded the defendants to execute the sale deed after receiving the aforesaid amount. iv) The defendants-respondents on 29.4.1968 sent reply to the plaintiffs' notic....
X X X X Extracts X X X X
X X X X Extracts X X X X
....iable for all costs and damages dated 6.6.68. Sd/- Narendra Nath Basu Advocate, Bongaon Dated 6.6.68 Schedule P.S. Gaighata, Mouza-Narikela Settlement Plot No. 189 of .46 decimals. Settlement Plot No. 566 of .42 decimals out of .84 dec. Settlement Plot No. 416 of .14 decimals Settlement 413 of. 15 decimals. Total 1.17 acre of land. Sd/- vi) In spite of assurance, when the defendants failed to execute the sale deed, the plaintiffs filed the suit on 7.5.1970 before the Munsif, Bongaon stating therein that the plaintiffs have every right to reconvey and to take possession of the suit land.....