High Court – Nozrul Islam Chowdhury,J – F.A No.39 of 2007

Present :

Mr. Justice  Nozrul Islam Chowdhury

                                                        And

                                    Mr. Justice K.M Kamrul Kader.

First Appeal No.39 of 2007.

 

Abul Mohsin Chowdhury being dead

his legal heirs

1(a) Syeda Lutfa Begum wife of late Abul Mohsin Chowdhury and others.

….. Appellants.

Vs.

Syed Abul Kalam Azad

Son of  late Syed Abdus Salam and others.

… Respondents.

Mr.Mahmudul Islam with

Mr. A.J. Mohammad Ali

Mr.Shueb Ahmad

Mr.J.N.Deb &

Mr.Chancal Kumar Biswas, Advocates.

………. for the appellants.

Mr.Moudud Ahmed with

Mr.Hbibullah &

Mr.A.K.M Bodrudduza,Advocate.

……. for the respondents.

Heardon:23.11.2011,24.11.2011&30.11.2011.

Judgment on :  07.12.2011 & 08.12.2011.

 

 

 

Nozrul Islam Chowdhury,J:

 

This appeal at the instance of the defendant No.1 as appellant, is directed against the judgment and decree dated 11.10.2006 passed in Title Suit No.303 of 2004 ( re-numbered) by the Additional Court of Joint District Judge, Dhaka.

Facts in a nutshell,  given rise to this appeal are that the respondent No.1, as plaintiff instituted Title Suit No. 151 of 1989 before the Subordinate Judge,3rd Court, Dhaka impleading one Abul Mohsin Chowdhury as main  defendant No.1 and the Government of the People’s Republic of Bangladesh as pro-forma defendant No.2 seeking  a decree for Specific Performance of Contract  stating inter alia  that the suit land was initially leased out in favour of Abul Forhad Mohium Chowdhury  by a registered lease deed dated 28.02.56 ; thereafter upon amicable partition of the encestral property amongst the co-sharers the defendant No.1 became the exclusive owner of the suit land who having been in possession and enjoyment thereof proposed to sell the same whereupon the plaintiff accepted the offer and as a result a bainapatra was executed on 27.05.1987 in between the plaintiff and the defendant No.1, pursuant to  the said deed of agreement for sale permission to transfer the property was obtained from the government  and possession of a part of the suit land was delivered in favour of the plaintiff  purchaser on 21.09.1987; thereafter at the intervention of the well-wishers of both the parties another agreement for sale of the suit land was executed on 01.03.1989 whereupon the previous deed of agreement  for sale dated 27.05.1987 was cancelled amicably by both the parties and in the subsequent deed of agreement for sale dated 01.03.1989  consideration amount was fixed at Taka 47,75,000/00 out of which 3,75,000/00  was paid by the plaintiff to the defendant No.l with a stipulation that the defendant No.1 should obtain Income Tax clearance certificate  and after  obtaining the same the plaintiff would be informed about the same whereupon the plaintiff should make payment of the balance amount of Tk.44,00,000/- and upon receipt of the balance amount  the registered sale deed would be executed. It was also stipulated in the agreement that within three months from execution of the agreement for sale   the registered deed would be executed in favour of the plaintiff and in default the plaintiff would be at liberty to get the kabala registered through court upon depositing the balance amount. Thereafter, the plaintiff went on waiting and on 03.05.1989 the plaintiff issued a notice upon the defendant No.l  to perform his part of the contract in view of the silence of defendant No.1, in the meantime, no reply was received from the defendant No.1, therefore, on 30.05.89 another notice by  registered post was issued  by the plaintiff  in favour of the defendant No.1 asking him to comply with the requirement as per the agreement , yet the defendant No.1 did not take any positive step rather instituted Title Suit No. 229 of 1989 in the 1st Court of Assistant Judge, Dhaka and in the plaint of that suit the defendant  No.1 made an assertion that the plaintiff had failed to perform his part of the contract dated 01.03.1989 and as a result the deed of agreement was repudiated and upon going through the averments made in that suit  the plaintiff found that the defendant No.1 is no longer willing to execute the sale deed in his favour. Accordingly, on 20.06.89 the plaintiff made last offer of the balance amount to the defendant No.1 but with no result, therefore, the suit was instituted seeking a decree for Specific Performance of Contract dated 01.03.89. It may be mentioned here in this connection that the previous deed of agreement for sale was cancelled amicably by both the parties upon entering into a fresh agreement for sale on 01.03.1989. It was also disclosed in the plaint that the plaintiff was always willing to make payment of the balance consideration of Tk. 44,00,000/00  to the defendant No.1 but it is the defendant No.1 who failed to perform his part upon accepting the balance amount. Therefore, the suit was brought for a decree as aforesaid.

The defendant No.1 entered appearance upon filing written statement without denying the material allegations made in the plaint,  stating inter alia that the suit has been brought with a view to harass the defendant No.1 unnecessarily  and the suit is without any cause of action  and  the same has been brought with a malafide intention  of delaying the payment of balance amount of consideration. It was also stated in the written statement that because of non performance of his part of the contract by the plaintiff  the agreement for sale dated 01.03.1989 is liable to be cancelled. In paragraph 8 of the written statement it was disclosed by defendant N0.1 to the effect :- “ weev`xi mijZvi my‡hvM jBqv bvwjkx m¤cwËi Ask we‡kl GB weev`xi fvovwUqv R‰bK Gm,B, Kwe‡ii mwnZ †hvMmvR‡m GKwU mv`v KvM‡R GB weev`xi m¦v¶i Mªnb Kwiqv c~Z© gš¿Yvj‡qi eive‡i n¯ZvšZ‡ii AbygwZ cÖv_©bv Kwiqv `iLv¯Z w`‡eb ewjqv cÖKvk K‡ib| Ges bvwjkx †nvwìs jBqv Gi 131/4 KvVv ev`xi eive‡i I 63/4 KvVv D³ Gm,B, Kwe‡ii GKcyÎ I wZb Kb¨v eive‡i n¯ZvšZ‡ii cÖv_©bv Kiv nq ewjqv cieZ©x‡Z cÖKvk cvq| cÖK…Zc‡¶ D³ Gm,B, Kwe‡ii cyÎ Kb¨v‡`i eive‡i D³ m¤cwË n¯ZvšZ‡ii welqwU m¤c~Y© AmZ¨ Ges `iLv‡¯Z Zvnv‡`i bvg D‡j­L ev`xi AÁv‡Z Kiv nBqv‡Q| cÖK…Zc‡¶ ev`xi mwnZ 131/4 KvVv f~wg weµ‡qi K_vevZ©v PjvKv‡j D³ Gm,B, Kwe‡ii mwnZ bvwjkx c­‡Ui 5 KvVv f~wg †ePv‡Kbvi wm×všZ nBqvwQj| ” It was also disclosed in the written statement with reference to  paragrah 2 of the plaint  that the agreement for sale dated 01.03.89 was made upon repudiation of the previous agreement dated 27.05.87 for sale of the suit land in favour of the plaintiff  by the defendant No.1 at a consideration of Tk. 47,75,000/- upon payment of earnest  money at taka 3,50,000/- was correct and that Income Tax Clearance Certificate and payment of gain tax was stipulated in the agreement to be a task of both the parties jointly and that all the papers necessary for obtaining those certificates  were duly signed by the defendant No.1 and was handed over to the plaintiff at the time of execution of the agreement  for sale on 01.03.1989. It was also disclosed in the written statement had the plaintiff informed the defendant No.1 about the receipt of the necessary clearance, he would have accepted the balance amount of Tk.44 lacs and have registered the necessary sale deed in his favour and there would have been no necessity at all to go for a suit. Specific assertion was also made in the written statement at paragraph 9 thereof to the effect as under :- “GB weev`x ev`xi mwnZ m¤cvw`Z evqbvcÎ m¤c~Y© m¦xKvi Kwiqv AÎ wjwLZ eY©bvq GB g‡g© AsMxKvi Kwi‡Z‡Q †h, ev`x AÎ eY©bv `vwL‡ji GK gv‡mi g‡a¨ A_ev AbwZwej‡¤¦ Av`vj‡Z wba©vwiZ m¦í Kvjxb mg‡qi g‡a¨ GB weev`x eive‡i nv‡Z nv‡Z g~‡j¨i eµx 44 j¶ UvKv bM` cÖ`vb Kwi‡j I †MBb U¨v¯‹ QvocÎ msMªn Kwi‡j GB weev`x I ev`xi eive‡i mvd Kejv `wjj m¤cv`b I †iwRw÷ª Kwiqv w`‡e| GB weev`x †Kvb w`bB ev`xi wbKU nB‡Z Zcwkj ewY©Z m¤c wËi eµx g~j¨ Mªnb Kwi‡Z Ges Zvnvi eive‡i mvd Kejv `wjj m¤cv`b I †iwRw÷ª Kwi‡Z Am¦xK…wZ Ávcb K‡ib bvB weavq AÎ †gvKÏgv †Kvb KvibB D™¢e nq bvB|” In paragraph 11 of the written statement  the defendant No.1 also made a positive assertion  to the effect  as under :-

“ 1Ð3Ð89 Bs Zvwi‡Li m¤cvw`Z evqbv cÎ m¦xKv‡i GB weev`x my¯úó fvlvq e¨³ Kwi‡Z‡Q †h, AÎ †gvKÏgv GB weev`xi m¦xK…Z g‡Z wWµx cÖ`vb GK gv‡mi g‡a¨ evqbvc‡Î D‡j­wLZ g~‡j¨i eµx 44,00,000/Ð UvKv (Pyqvwj­k j¶) bM‡` GB weev`x‡K cÖ`vb Kwi‡j Ges evqbv c‡Îi kZ© g‡Z ev`x Zvnvi wbR Znwej nB‡Z †MBb U¨v¯‹ cÖ`vb Kwi‡j Ges †mB g‡g© QvocÎ msMªn Kwi‡j Ges GB weev`x‡K ÁvZ KivB‡j GB weev`x Zr¶bvr ev`x eive‡i cÖ¯ZvweZ `wjj m¤cv`b Kwiqv w`‡e Ges m¦qs mve †iwRw÷ª Awd‡m Dcw¯nZ _vwKqv D³ `wjj †iwRw÷ª Kwiqv w`‡e| G m¤c‡K© ev`x‡K †Kvb µ‡gB welqwUi wb¯úwˇZ Zvj evnvbv A_ev wejw¤¦Z Kwi‡Z †`Iqv Pwj‡e bv| ”

On a careful scrutiney of the written statement filed by the defendant No.1 , we find that a prayer was also inserted  in the written statement which is unusual though. True, it is that no prayer in a written statement is generally made by any defendant yet it is not something illegal rather permissible and in the written statement the defendant No.1 made the prayer as under :-

“ Dc‡iv³ KviY I Ae¯nvax‡b GB weev`xi webxZ cÖv_©bv GB †h, GB weev`xi m¦xK…Zg‡Z ev`xi †gvKÏgv †nZy GB weev`xi evqbvcÎ m¦xKvi Kwiqv‡Q †m Kvi‡b ev`xi cÖvw_©Z g‡Z †gvKÏgvq wWµx cÖ`vb Kwiqv AbwZwej‡¤¦ g~‡j¨i eµx UvKv GB weev`xi eive‡i nv‡Z nv‡Z cÖ`vb Kwiqv mvd Kejv `wjj m¤cv`b KivBqv evqbvc‡Îi kZ© g‡Z ev`xi Znwej nB‡Z †MBb U¨v¯‹ QvocÎ ev`x‡K msMªn Kwievi wb‡`©k`v‡b D³ `wjj †iwRw÷ª KivBqv jBevi Rb¨ AbygwZ GK gv‡mi mgq `v‡b AÎ †gvKÏgv wb¯úwË Kwi‡Z gwR© nq| ”

In this connection it may be  pointed out that in view of the written statement filed by the defendant No.1 admitting the deed of agreement for sale dated 01.03.1989 in between the plaintiff and the defendant No.1 the instant suit was brought within the purview of Order 12 Rule 1 of the Code of Civil Procedure  and in such view of the matter , the plaintiff  was at liberty to invoke Rule 6 of Order 12 of the Code of Civil Procedure for a decree on admission by the defendant No.1 without waiting for the determination of any other question in between the parties, despite such a position the learned Joint District Judge preferred to go for framing of the issues and after doing so the suit was  proceeded rather dragged  for years together  culminating the  same into a decree about 16 years thereafter i.e on 11.10.2006

After framing of the issues, which are 6 in number, mostly unnecessary except 2 namely, issue number 5 and 6 . The suit was proceeded where the plaintiff examined 2 witnesses in support of his case while the defendant No.1 also examined 2 witnesses and upon conclusion of the trial the learned Joint District Judge decreed the suit as aforesaid by his judgment   and decree dated 11.10.2006.

Challenging the aforesaid judgment and decree it is the defendant No.1 as appellant has brought this appeal.

Mr.Mahmudul Islam, the learned Counsel appearing for the appellant has taken us  through the materials on record and with special reference  to the order sheet submits at the out set  that in the instant case the defendant No.1 having admitted  the claim  of the  plaintiff by way of his written statement , the same ought to have been treated as a notice  as contemplated under Order 12 Rule 1 of the Code of Civil Procedure  and the plaintiff could have obtained the decree immediately after submission of the written statement on 25.02.1990 invoking  Rule 6 of Order 12 of the Code of Civil Procedure  but the plaintiff was, as a matter of fact, not willing to obtain a decree as it appears from his conduct  rather he was  interested in delaying the payment in violation of the terms of the agreement for sale in question , therefore, he made an attempt  to implead defendant No.3-7 and thereafter he had also impleaded defendant No.8 in the suit.

These are attempts by the plaintiff which can be attributed towards causing delay in disposal of the suit although in a suit for specific performance of contract those person were not at all necessary parties.

Pointing out the order sheet the learned Counsel for the appellant submits that the conduct of the plaintiff indicates in clear  terms  that he was not ready and willing to perform his part of contract within a reasonable  time and that the plaintiff has not come with clean hand as such he is not entitled to a decree for specific performance of contract.

Substantiating his submission the learned Counsel placed reliance in the case of Rash Behari Moshalkar Vs. Hiran Bala Debi and another reported in 1985 BLD(AD) 51 . In this connection the learned Counsel appearing for the appellant submits further that the plaintiff must show readiness to do his part of the contract upto the decree, failing which decree for specific performance of contract is not available in his favur. To substantiate his submission the learned Counsel  placed reliance in the case of Ardeshir H.Mama Vs. Flora Sassoon reported in AIR 1928 ( Privy Council) 208.

It is also submitted by the learned Counsel for the appellant that the plaintiff has not come with clean hands therefore he is not entitled to get a decree for specific performance of contract particularly with reference to Section 22 of the Specific Relief Act.

On the other hand, Mr. Moudud Ahmed, the learned Counsel appearing for the plaintiff-respondents submits that the defendant by his own conduct acquiesced his offer made in the written statement, therefore, there is no scope for a decree on admission. It is also submitted by the learned Counsel that the defendant No.1 did not perform his part of the contract, therefore, the plaintiff was compelled to go for a suit. With reference to the order sheet  of the suit the learned Counsel submits that it is the defendant  No.1 who caused the delay in disposal of the suit by way of going for a civil revision being Civil Revision No.4524 of 2001 where the rule was issued  on 30.08.2001 with an order of stay of further  proceedings of the suit and the said rule was however discharged  on 23.05.2005, therefore, it is not the plaintiff alone  to cause the delay but the defendant  No.1 has also contributed to the delay in disposal of the suit for which the plaintiff can not be blamed  alone. It was also pointed out by the learned Counsel that defendant was not diligent rather he took attempts  to frustrate the agreement and in that  view of the matter  the decree passed by the trial court do not call for any interference  by this court.

Lastly, it is submitted by the leaned Counsel for the plaintiff- respondent that in a suit for specific performance of contract main point at issue is whether the agreement is genuine and in view of admission of the defendant No.1 that the agreement was in fact a genuine one under such circumstance there is no other alternative but to grant a decree in the suit.  Therefore, the trial court has rightly did the same which do not in any way call for interference by this court.

Mr.Moudud Ahmed also submits that failure of the plaintiff to assert that he is ready and willing to perform his part of the contract, will not render the suit defective.

In substiating his submission the learned Counsel appearing for the respondent placed reliance in the case of Maksud Ali Vs Eskander Ali reported in 16 DLR(SC) 138. He then submits to the effect that time is not the essence of contract in a suit for specific performance of contract relating to immovable property. The learned Counsel placed reliance in two cases. First in the case of Anwara Begum Vs. Md.Kamrul Haque and others reported in 20 DLR(AD) 187 and the case of Nasima Akhter Vs. Siraj Miah and another reported in 57 DLR (AD) 38 and submits to the effect that in a suit for specific performance of contract when the agreement in question is found to be genuine one and consideration has been passed duly decree for specific performance of contract is warranted under equitable exercise of discretion by the court .The learned Counsel for the respondent, placed reliance in the two other cases on the same point which are Md. Mansur Ali Vs. Mohiuddin Bhuiyan reporter in 2 MLR (AD) 363 and the case of Syed Munsif Ali Vs.Shashanka Mohan Chowdhury reported in 2 MLR 237.

Heard the learned Counsels from both sides and for the purpose of appreciation  of the submissions  made from both sides we feel it proper to go for assessment of the evidence on record including the exhibits placed before this court and in doing so we find that the plaintiff examined two witnesses  in support of his case and the plaintiff himself figured  as P.W.1 and deposed to the effect in support of his plaint upon production of lease deed in favour of the elder brother of defendant  no.1 and marked as Ext.I. He also produced registered deed of partition dated 02.07.65 whereupon the defendant  No.1 acquired exclusive title over the suit land and the same has been marked as Ext.2. The plaintiff also produced the deed of agreement for sale dated 01.03.89 it has been marked as Ext.3. In course of his deposition the plaintiff also produced the papers showing delivery of possession of a part of the suit land in his favour which has been marked as Ext.4 and permission for sale granted by the Ministry of Works was also produced by the plaintiff and marked as Ext.5. The plaintiff also produced two notices asking the defendant No.1 to execute and register the sale deed in his favour one dated 03.05.89 and the other through registered post dated 30.05.89 and the postal receipt which were marked as Ext.6 series.

During cross-examination this witness admitted that on 25.02.90 the defendant No.1 filed written statement asking him to pay Tk. 44 lacs the balance amount of consideration for the  suit  land. This witness denied the suggestion that he did not come forward to file an application for making payment of the balance amount in court. This witness also admitted in his cross-examination that by the subsequent deed of agreement dated 01.03.,89 first agreement dated 27.05.87 was cancelled . He also admitted that the  balance amount was stipulated to be paid within 3(three) months from the date of agreement. P.W.1 also admitted that the gain tax was supposed to be paid by him within three months from the date of the agreement. He also  admitted that he had gone through the written statement filed by the defendant No.l. He also admitted that in paragraph 11 of the written statement the defendant No.l asked for payment of the balance amount of Tk.44 lacs within one month with an undertaking to register the document in favour of the plaintiff on such payment. This witness denied the suggestion that for long 10 years the defendant was being harassed by him by way of pro-longing the agreeent for sale . This witness also denied the suggestion that he was involved in criminal cases.

P.W.2 is Md. Khalil Howlader who appeared to depose that he is a care taker of the suit land which is in possession of the plaintiff.

During cross-examination this witness deposed that the suit land is measuring 13 ¼ katas . This witness also admitted in his cross-examination that he does not know the quantum of vacant land within the suit land and he does not know at present who is in possession of the single storied building. This witness denied the suggestion that he does not know the suit land and he does not know anything about the same.

D.W.1 Hamidul Kibria Chowdhury. He is the son of the defendant No.l  and also an attorney on behalf of the defendant No.1 who produced the power of attorney dated 24.02.1990 marked as Ext.A. He disclosed the area of  the suit land as 13¼ th    khatas . This witness produced the initial agreement for sale dated 27.05.87 marked as Ext.B. This witness also produced the subsequent agreement for sale dated 01.03.1989 which has been marked as Ext.B-1 where the proposed land for sale is 13 ¼  khatas. This witness admitted that his father received taka 3,75,000/00  from the plaintiff . This witness also disclosed that the land was sold by his father with a view to send him abroad for higher studies (this part is not incorporated in the writhen statement) .This witness also disclosed  that his father signed all the necessary papers for income tax clearance certificate  but the plaintiff did not obtain the same nor did he try for the same. This witness admitted in his deposition that his father instituted Title Suit No.229 of 1989 in the court of Assistant Judge,1st Court, Dhaka against the plaintiff  and in the plaint of that suit his father  claimed that the plaintiff was in breach of the terms of the agreement of sale. Therefore, the agreement became ineffective and the earnest money forfeited. The said suit was decreed exparte and a copy of the decree was produced and marked as Ext.C. He also admitted that in paragraph 11 of the written statement his father agreed to receive the balance amount and was ready to register the sale deed within one month despite such assertion  the plaintiff did not make any attempt to pay the balance amount nor did he make any attempt to get the deed registered on such payment. This witness claimed in his deposition that the plaintiff had no capacity to make payment of the balance amount. This witness denied the suggestion that after obtaining permission of sale on 21.09.87 his father handed over possession in part of the suit land. This witness also alleged that the plaintiff having obtained the signature of his father in a plain paper in collusion with the tenant the plaintiff made a joint prayer for permission to transfer the suit land, before the Ministry of Works. This witness also during cross-examination admitted that his father indeed executed the agreement for sale in favour of the plaintiff.

During cross-examination this witness replied further that he was supposed to go for higher studies but he failed for nonpayment of balance, consideration. This witness also denied the suggestion   that his assertion to the effect that it was for his going abroad for the purpose of higher studies the suit land was sold, is not true. He also admitted that in the written statement there is nothing to the effect as above is available. This witness also disclosed that in Title Suit No.229 of 1989 S.I Kabir was defendant No.1 while the plaintiff was defendant No.2. The said suit was for permanent injunction upon the defendant No.1 not to hand over possession of the suit land in favour of the defendant No.2 of that suit. This witness admitted that his father in paragraph 4 of the writhen statement admitted the receipt of the notice send by the plaintiff. This witness also admitted that they have instituted a case being No.16 of 2004 for cancellation of the deed whereby the defendant’s claimed another 6 ¾ khatas in that suit, (beyond the present suit land). This witness also admitted receipt of the earnest money by his father from the plaintiff. This witness also disclosed during cross-examination “Avgvi we‡`‡k hvIqvi UvKv bv cvIqvq D³ cÖ‡qvRb Avi we`¨gvb wQj bv| Avgvi wcZv ev`x‡K †gŠwLKfv‡e ewjqv‡Q Bnv wjwLZ eY©bvq D‡j­L bvB| ” This witness also asserted  in his deposition which was recorded on 13.09.2006 to the effect “ Av`vjZ GLb wb‡`©k w`‡j eZ©gvb mg‡q c~‡e©i g~‡j¨ w`‡Z Avgiv ivwR bvB| This witness denied the suggestion that he is deposing against the intention of his father since the value of the suit land has been multiplied many a time in the meantime.

D.W.2  Anhar Chowdhury is the nephew of defendant No.1 who admits that his uncle executed power of attorney in favour of D.W 1 and he is a witness to that power of attorney ; his signature has been marked as Ext.A-1. He is also an attesting witness in the impugned agreement for sale. This witness also deposed that the land was sold by defendant No.1 with a view to send his elder son abroad. This witness also disclosed that the plaintiff did not pay the balance amount to the defendant No.1 for the last 17-18 years. This witness denied the suggestion that his uncle is mentally weak. This witness denied the suggestion that it is at his behest the power of attorney was executed by his uncle. This witness admits that there are other suits pending with respect to the Dhanmondhi land of his uncle. He also asserted that his uncle is an honest and good man. This witness also asserted that the suit was dragged for such a long time only because of non payment of balance amount by the plaintiff.

These are all about the depositions of the witnesses, in a nutshell, recorded in this case by the learned Joint District Judge.

Turning to the submissions made by the learned Counsel from both sides we find, in the instant case the substantive agreement for sale was entered into between the plaintiff and defendant No. on 01.03.1989 and the suit being Title Suit No.151 of 1989 was instituted on 12.08.89 while the defendant No.1entered appearance on 31.10.89 upon filing power and ultimately on 25.02.1990 he filed written statement. The defendant No.1 also filed a separate application on the same date i.e on 25.02.90 praying for  fixing a date of hearing with a view to early disposal of the suit and this is so because of his clear admission  of the agreement for sale as claimed and part payment made by the plaintiff and the order sheet shows that on 15.11.90 the defendant No.1 filed another application for fixing a date of peremptory  hearing such an attempt by the defendant No.1  shows  that he was very much eager  to  get the suit disposed of on receiving the balance  amount and such an application can safely be termed as one within the ambit of Rule 6 of Order 12. Under such circumstances, we find that there was no obstacle whatsoever either for the plaintiff or for that matter the court to grant a decree on admission directly upon payment of the balance amount by the plff but that was not done in this case. Why? It is not known to us but it is clear that the suit was dragged up to this stage for more then 16 years next.

Now the question comes, who is the person responsible for such delay?

On a careful scrutiney of the order sheet we find that in the meantime the plaintiff  got his plaint amended impleading  persons namely, defendant Nos.3-7, thereafter he also impleaded the defendant No.8 by a subsequent  amendment of the plaint. It is not understood how these added defendants were necessary party in a suit for specific performance of contract  between the two persons only i.e the plaintiff  on the one side and the defendant No.1 on the other, yet that was done, consequent whereupon, as we find these defendant Nos.3-7 took adjournments in the case, 19 times and defendant No.8 took adjournments in the case for 18 times as per the disclosure made by the plaintiff respondent in a separate note sheet submitted before us while the plaintiff went for adjournments for 18 times. We have also noticed that these defendant Nos.3-7 filed written statement  jointly while the defendant No.1 filed his one separately but none of those two  sets  of  defendants

ever appeared before the court at the time of hearing of the suit rendering their appearance and their adjournments in the suit a mere futile exercise. These are the circumstances which unmistakably indicate an attempt by the plaintiff to cause delay in the suit, what for? Answer is nothing but to cause delay in making payment of the balance amount although it could have been done much earlier and on such payment the decree could have been obtained 16-17 years before i.e immediately after filing of the written statement by the defendant No.1. We have also seen that the defendant No.1 is also responsible for the delay to some extent. We have also seen that a Rule was obtained by the defendant No.1 on 13.08.2001 in a civil Revision with an order of stay of further proceedings of the suit but the said rule was however disposed of on 22.03.2005. This is the period of delay which is of course at the behest of the defendant No.1.From a close scrutiney of the materials on record we find that the defendant No.1 went for such a rule from the High Court Division against an order of amendment of the deposition of a witness. We have heard about the amendment of the pleadings of the parties but we have never come across the case of an amendment of deposition of the witness, the circumstances which compelled the defendant No.1, as it appears, to go for a rule before the High Court Division.

In the backdrop the learned Counsel appearing for the appellant submits that when the purpose of the contract was defeated and the plaintiff was not ready and willing to perform his part of the contract within a reasonable time. The trial court ought to have refused the decree for specific performance of contract and in substantiating his submission the learned Counsel placed reliance in the case of Rash Behari Moshalkar Vs.Hiron Bala Debi and another reported in 19(1985) BLD(AD) 51.

Having gone through the said judgment we find that a common question was raised in two appeals before their lordships: as to whether specific performance of contract, though found lawful, were refused by the High Court Division in exercising its discretion were correct or not, upon appreciation of sound judicial principle as referred to in section 22 of the Specific Relief Act,1887. From the facts of those cases it is revealed that two suits for specific performance of contract were heard analogosly by the learned Munsif and the contracts were not challenged by the defendant yet the payment of consideration totally denied. The trial court found on evidence that though the contracts were proved to be lawful no consideration was at all paid. But, nevertheless, the trial court decreed the suit by a common judgment subject to payment of consideration. The defendants challenged  the decrees by filing two separate appeals and on hearing both the appeals were dismissed by the Subordinate Judge by two separate judgment  whereupon  two appeals were filed challenging  the decrees and the High Court Division after hearing those appeals allowed both the same setting aside the decrees passed by the learned Munsif and affirmed by the learned Subordinate Judge while setting aside the concurrent judgment and decrees passed by the courts below the High Court Division observed that the plaintiff not only did not pay a single furthing by way  of consideration but put up a false claim of payment and that they were not ready and willing to perform their part of the contract. This judgment of the High Court Division was challenged before the apex court in Rash Behari’s case and in dealing with the case their lordships dismissed both the appeals enunciating the principles in that case to the effect: specific performance should not be allowed firstly because the purpose for the contract  has been defeated  and secondly because the plaintiff’s were not ready and willing to perform their part of the contract within a reasonable time. In the instant case before us, we find that so far as the transaction is concerned it is admitted but other part of the case i.e the reluctance of the plaintiff to make payment of the balance amount of consideration, early in point of time, clearly indicate that he was not ready and willing to pay the balance amount .Therefore, in our considered opinion, we find that the case of Rash Behari fits in all the fours with the present case before us. In this connection, having gone through the judgment delivered in the said case of 1985 BLD (AD) 51 and the other case of Ardeshir H . Mama Vs. Flora Sasson reported in AIR 1928 (Privy Council) 208 we find that the principles of law laid down in 1985 BLD 51 found its origin from the Judgment by the judicial committee of Privy Council reported in AIR 1928 (PC) 208 where the principle has been laid down by their lordships of the judicial committee in the following language :-

“Although, so far as the Act is concerned, there is no expressed statement that in a suit for specific performance the averment of readiness and willingness on plaintiff’s part up to the date of decree is as necessary as it was always in England, it seems invariably to have been recognized that the Indian and the England requirements in this matter are the same’’

Reference has also been made to the case of Karsandas Vs. Chhotalal  reported in  AIR 1924 (Bom)119.

Turning to the cases referred by Mr. Moudud Ahmed the learned Counsel appearing for the respondents the first case is Maksud Ali and others Vs. Eskandar Ali in this case the Supreme Court of Pakistan enunciated the principle that in a suit for specific performance of contract failure of the plaintiff to assert that he is ready and willing to perform his part of the contract will not render the suit itself defective. From the facts of that case it is revealed that a certificated appeal was before their lordships from the High Court of East Pakistan and the appeal arose before the High Court out of a suit for specific performance  an agreement for sale of a plot of land and the owner agreed to sell the suit land to the respondents  for a sum of Tk.23,000/00 and executed a deed of agreement  or bainanama on August 05,1955. On receipt of Tk. 1001/00 by way of earnest money; the deed of agreement contained an express stipulation  that the conveyance would be executed and registered within 76 days from the date of execution of the deed of agreement, that is to say by 30th October,1955 and possession would also be delivered by that date . Upon failure of the vendor to execute and register the deed, the purchaser as plaintiff went for specific performance of contract and before that the plaintiff’s sent notice repeatedly asking the defendant to receive the balance amount and execute the sale deed but in vain. The trial court decreed the suit but in course of trial of the suit no question was raised as to whether in the absence of specific averments in the plaint to the effect that the plaintiff‘s readiness and willing to perform his part of the contract,  the suit was bound to fail. In the High Court Division the argument was advanced that the plaintiff did  not make any averment in his plaint to the effect that the plaintiff all along was ready and willing  to perform his part of the contract , therefore, the suit was bound to fail. Other question of fact raised in the High Court was of not so much importance for our case, therefore, we skip over. The question raised before the High Court was answered by the learned Judges upon examining various decisions cited before them to the effect that there was no rule of law that the plaintiff must plead his readiness and willingness in the plaint but that it was sufficient if the readiness and willingness to carry out his obligations was established  upon the evidence  in the case. In the said judgment there lordships of the Supreme Court of Pakistan observed in the following way:-

“The evidence in this case, to which we have already adverted, indicates that the plaintiff maintained throughout that he was ready and willing to perform his part of the contract and nothing could be elicited in cross-examination which would show that there was at any stage, any thing to suggest that the plaintiff was not ready and willing to perform his obligation” Therefore, their lordship found no substance in the appeal so dismissed with costs.

In the instant case before us we have already pointed out that the conduct of the plaintiff right from the filling of the written statement by the defendant No.1 upto the decree granted almost 16-17 years later, at no stage the plaintiff ever showed his willingness or readiness to perform his part of the contract i.e to make payment of the balance amount. Therefore, in our opinion, facts of that particular case reported in 16 DLR (SC) is completely discernible.

The next case referred to by the learned Counsel for the  respondents is the case of  Mst.Anwara Begum Vs. Md.Karimul Haque  and others  reported in 20 BLD(AD) 187 wherein a  Petition For Leave To Appeal was dismissed which was brought  challenging the judgment and  decree dated 12.11.1992 passed by the High Court Division in First Appeal No.233 of 1981 whereby the High Court Division  dismissed the appeal upholding the judgment and decree of the trial  court  and the trial court  decreed the suit for specific performance of contract and in the said  judgment  by the apex court , it was found that the trial court as well as the learned Judges of the High Court Division on consideration  of evidence both oral and documentary in detailed judgment found that bainapatra Ext.I was a genuine document and the plaintiff offered  balance consideration money. This finding based on due consideration of evidence  on record hardly can be set aside  by this Division, in a suit for specific performance of contract  relating to immovable property time is not essence of the contract  nor hardship of the defendant is a ground to refuse relief in a suit for specific performance of contract. The High Court Division rightly exercised its power in upholding the findings of the courts below.

It may be mentioned in this connection that two questions were infact mooted in that particular case, the first one was whether time was the essence of the contract and the second one was whether hardship of the defendant is a ground to refuse relief in a suit for specific performance of contract . But in the instant case, none of the two issues as aforesaid is involved, therefore, we do not find that this case in any way comes in aid to the plaintiff respondent before us.

Next case relied by the learned Counsel for the plaintiff – respondent is the case of 57 DLR(AD) 38 . Having gone through the said judgment we find that in a suit for specific performance of contract the defendant No.1 neither submitted any written statement nor contested the suit. The plaintiff examined two witnesses thereafter the learned Subordinate Judge on consideration of the evidence and upon hearing the parties dismissed the suit by his judgment and decree dated 24.03.92.

On appeal before the High Court Division in First Appeal No.222 of 1992 the High Court Division decreed the suit for specific performance of contract in favour of the plaintiff appellant  and directed the plaintiff to pay Taka 4,00,000/- to the defendant No.1 as solatium  and get the deed registered. This judgment of the High Court Division was appealed against before the apex court which after hearing both sides observed :-  it appears that the defendant No.1 neither submitted any written statement nor contested the suit, therefore, the defendant No.l did not  deny  the existence of bnainapatra between the plaintiff  and the defendant No.1. Moreover, it appears that the scribe of the bainapatra has proved the same. Therefore, the High Court Division has rightly held that the bainapatra has been duly proved and this is the foundation upon which the High Court Division has decreed the suit for Specific Performance of Contract.

On a careful scrutiney of the aforesaid judgments we have no doubt that the main point at issue before their lordships in that particular case was as to whether time is the essence of  the contract in case of agreement for sale of immovable  property and  that question was initially answered by the High Court Division in the negative and was affirmed by the Appellate Division. But in the instant case before us we have already pointed out that the same question is not the point at issue before us, therefore, we do not find any manner of application of that particular case in the instant one before us.

Next case referred to by Mr.Moudud Ahmed, the learned Counsel appearing for the respondent is the case of Mosammat Nasima Akhter Vs. Md.Siraj Miah and another reported in   10 MLR (AD) 53. This is the same case as we have discussed above and reported in 20 BLD(AD) 187 , therefore, no further discussion is necessary.        The other case referred to by Mr.Ahmed is the case of  Md.Mansur Ali Vs. Helaluddin Bhuiyan and another reported in 2 MLR (AD) 363.

In the aforesaid judgments we find that there were two suits. Plaintiff-petitioner filed Title Suit No.112 of 1991 for cancellation of exchange deed dated 29.06.85 and for khas possession. The respondent No.1 contested the aforesaid suits while the respondent No.1 as plaintiff filed Title Suit No.113 of 1991 for Specific Performance of Contract impleading the petitioner as defendant No.1 in that suit, both the suits were ultimately disposed of by the learned Subordinate Judge analogously and by analogous judgment and decree dated 29.11.93 the learned Subordinate Judge dismissed the Title Suit No.112 of 1991 for cancellation of exchange deed while Title Suit No.113 of 1991 for Specific Performance of Contract  was decreed and upon hearing both the appeals brought against the aforesaid  two judgments and decrees the High Court Division dismissed both appeals affirming the decrees passed by the trial Court. The High Court Division also disposed of both the aforesaid appeals by analogous judgment which was appealed against before the apex court. Their lordships in deciding those petitions arrived at a finding to the effect as under :-

The learned Judges of the High Court Division by a well written judgment concurred with the findings of the learned Subordinate Judge that the bainapatra, Ext. Ka is a genuine document and there was no agreement for exchanging any property between the parties. From the evidence on record the learned Judges of the High Court Division correctly brought out the truth and found that defendant No.l Helaluddin Bhuiyan could not pay the balance consideration money to plaintiff Monsur Ali so a deed of exchange was made but in reality it was a deed of sale in pursuance  of the bainapatra. On consideration of the facts and circumstances and the materials on record the learned Judges of the High Court Division   correctly decreed the suit of the plaintiff-petitioner with observation that the plaintiff will get Tk.1,50,000/00 against defendant No.1 Halaluddin together with interest @ 10%  per annum from 12.11.86 till realization. The learned Judges having arrived at a correct decision in this case the same calls for no interference by us. Consequently, these two petitions are dismissed.’’

Having regard to the point at issue in the case before us we are unable to find relevancy of that particular case in the one before us. Therefore, the same does not come in aid to the plaintiff respondent.

The next case referred before us b y the respondent is the case of Syed Nunsif Ali Vs.Shashanka Mohan Chowdhry and others  reporte din 2 MLR(AD) 237.

Having gone through the same we find that a Petition For Leave To Appeal was filed by the plaintiff as petitioner against the judgment and decree passed by a Division Bench of the High Court in First Appeal No.9 of 1988 allowing the appeal upon setting aside the judgment and decree dated 29.09.87 passed by the learned Subordinate Judge, Patia in Other Class Suit No.2 of 1985 decreeing the suit. Facts involved in that case in a nutshell was that a suit for Specific Performance of Contract was brought by the petitioner as plaintiff and in that suit the defenants entered appearance upon filing written statement contending inter alia that the plaint case is false one and he did not execute any bainapatra which was a forged one and the plaintiff is a man of no means.

Dealing with that case an observation was made by their lordship to the effect that the material question for consideration in a suit for Specific Performance of Contract is as to whether the agreement is genuine, whether consideration was passed in between the parties and in the pen ultimate decision it was also found by their lordships that the learned Judges dis-believed a part of the plaint case as false. The learned Judges of the High Court Division on proper consideration of the materials on record dismissed the suit and the same calls for no interference. In this connection, it may be mentioned that it is by now a settled law that the material question for consideration in a suit for Specific Performance of Contract is as to whether the agreement is genuine and whether consideration was passed in between the parties. But this question has hardly any bearing in the case before us   because of the fact that in the instant case the defendant is admitting the agreement as genuine one and his grievance is that the plaintiff did not   perform his part of the contract by making payment of balance consideration amount. This was not the question involved in the case of 2 MLR (AD) 237 rather in that case the plea of the defendant was that the bainpatra was a forged one which was on scrutiney by the High Court Division found as forged one, therefore, in our opinion, this case  also in no way come in aid to the plaintiff respondent.

The last case referred to by the learned Counsel for the respondent is Md. Azharul Islam Vs. Md. Idris Ali and others reported in 39 DLR 342 judgment though passed  by the  High Court  Division, having  gone through  the aforesaid judgment  we find that the illuminating judgment of the High Court Division was delivered by Fazle Hossain Mohammad Habibur Rahman ,J centering round the interpretation of Part II of Section 22 of Specific Relief Act and the point at issue before the High Court Division was, whether rise or fall of price of the property after the deed of contract, could be considered to be a  ground to refuse the Specific Performance of Contract by either party or in other words such rise or fall in price of the property can be brought within the ambit of the expression “ some hardship’’  as available  in Part   II of Section 22 of the Specific Relief Act . The High Court Division having considered very many decisions including the one from the Privy Council  i.e Ardeshir H.Mama Vs. Flora Sassoon reported in  AIR 1928 (PC) as we have already noted in the forgoing paragraphs. Having gone through the said Judgment it transpires that on consideration of the facts in that particular case a Division Bench of this Court made the observations to the effect that the plaintiff used to run Star Medical Hall in the suit premises as a tenant under the defendant Idris Ali inspite of repeated demand the defendant No.1 did not execute the required kabala  in favour of the plaintiff. The plaintiff has been always ready with the balance amount of consideration money to be paid to the defendant. In the pen ultimate decision it was held as under :-

“It may be stated here that within the meaning of Part II of Section 22 of the Specific Relief Act subsequent rise or fall in price of immoveable property is not considered to involve “some hardship” on the defendant which he did not foresee, whereas its non performance would involve no hardship on the plaintiff . This is because both the parties are bound by the bargain struck between  the parties in a genuine contract for sale of immovable property and subsequent fluctuation in price, that is  rise or fall in the price  of such property after the date of contract is not considered to be a ground to refuse specific performance by either party.’’

This is precisely not the question before us since we are not dealing with the question of hardship of the defendant because of rise or fall of the price the property. The question involved before us is some thing otherwise which is, whether equitable relief is available to a person whose intention is not honest and when the purpose of the contract was defeated  only because of the fact that the plaintiff was not ready  and willing to perform his part within a reasonable time. Therefore, we are of the opinion that the case reported in 39 DLR 342 dealt with a different principle of law under different sets of facts and circumstances.

It may be pointed out that each case is to be decided by its own merit under the facts and circumstances involved in that particular case and in the case before us we have already pointed out that leaving aside all other facts claimed by the defendant No.1, if our attention is focused to the written statement filed by him in court together with an application for early disposal of the suit, we find that the defendant No.1 come up with a clean case of his own without resorting to any falsehood rather he invited the plaintiff to go for a decree on admission as contemplated under Rule (6) of Order 12 of the Code of Civil Procedure. If we take it as a last offer by the defendant No.1 to the plaintiff then what is the outcome ?  the  answer  is that the plaintiff remained silent, no attempt whatsoever was made by the plaintiff to obtain a decree on admisison without dragging the suit for another 17 years more and in the written statement filed by the defendant No.1 he made a clean breast admission that he is ready and willing to execute and register the kabala in favour of the plaintiff on receipt of the balance consideration of 44 ( forty four ) lacs and at that stage too we do not understand what prevented the plaintiff to come  forward and obtain the decree  immediately after submission of the written statement by the defendant No.1 as back as on 25.02.1990. We have also noticed  that there was no legal impediment whatsoever  in obtaining  a decree  by the plaintiff on admission because in July 1991 through Finance Act 1991 necessity for Income Tax Clearance Certificate for the purpose of registration was withdrawn and necessary permission of sale of the suit was obtained by the plaintiff earlier before the institution of the suit even, therefore, no impediment whatsoever  was there  in obtaining a decree on admission by the plaintiff, despite such a position the  conduct of the plaintiff may also be  noted in this connection. What he did, he made an attempt to implead  defendant Nos.3-7 who are in no way necessary parties in a suit for Specific Performance of Contract. Then again he impleaded the defendant No.8 in the suit whose presence was also not necessary to adjudicate upon the point at issue involved in the suit completely and effectually. From the subsequent event that took place in the suit we find that this defendant Nos.3-7 took adjournments in the suit for 19 dates while the defendant No.8 took adjournment for 18 dates contributing to the delay of disposal of the suit which appears to be the hidden desire of the plaintiff because he was not ready and willing to make payment of the balance consideration so early as offered by the defendant No.1. We have also noted that at one stage it is at the instance of the plaintiff deposition of P.W.2 was amended which is an unheard of device. The Civil Procedure Code could never contemplated an attempt of such amendment of the deposition of a witness and such amendment prompted the defendant No. 1 to go for Civil Revision being No.4524 of 2001 which was however disposed of on 22.03.2005. This has also contributed the delay towards the disposal of the suit. As against such a position we find that the defendant No.1 made repeated attempts by way of applications for disposal of the suit expeditiously but those application were not heeded to by the trial court as well.

From the circumstances narrated above, unmistakably suggest an inference that the plaintiff was neither willing nor ready to make payment  of the balance amount of Tk.44,00,000/00  within a reasonable time rather  he was interested in delaying  such payment may be because he was not ready for the same or because he was not willing to do so , therefore, in our opinion, the plaintiff did not come with clean hands for seeking an equitable  relief before the court like a decree for Specific Performance of Contract.

In view of the discussion made above, we find  that the plaintiff  was neither willing   nor ready to perform his part of the contract to pay the balance consideration amount within a reasonable time rather he adopted a device to delay such payment with the aid of  defendant Nos.3-8 unnecessarily as also by his own attempts adopted through different tencques, therefore, he has not come with clean hand seeking a equitable relief before this court as such we find that the case of Rash Behari Vs. Hiron Bala Devi reported in 1985 BLD (AD)51 fits in all the fours with the instant case before us and relaying on the  said decision of the apex court we are of the considered opinion that though the contract was found lawful yet the plaintiff was not at all ready and willing to pay the balance  amount of Taka 44 (forty four) lacs within a reasonable time rather he adopted various techniques to delay the payment of the balance consideration, therefore,  he did not approach the court with clean hand rather attempted to cause  unnecessary harassment to the defendant No.1 particularly in view of the delay in disposal  of the suit designed to frustrate the very purpose of the contract for sale, in other words the purpose for which  the sale was entered into was negatived by such intentional delay in payment of the balance  amount of consideration by the plaintiff and a contract which was entered into on 01.03.1989 and its performance in the year 2007    ( when the balance was paid by the  plaintiff before the court on 12.03.07) is no doubt be highly unjustified .

Therefore, we are of the considered view that under the facts and circumstances of the case a decree for Specific Performance of Contract is not available in favour of the plaintiff, firstly, because the purpose of the contract has been frustrated and secondly, because the plaintiff  was not ready and willing  to perform his part of the contract i.e to pay the balance amount of consideration within a reasonable time and more so an equitable relief as claimed by the plaintiff can not be granted in favour of the plaintiff when he  had not approached the court with clean hands, despite the fact that the agreement for sale is admitted to be a genuine one.

On a plain reading of the judgment of the trial court we find that the learned Joint District Judge was of the opinion that since the plaintiff once admitted the agreement for sale and its part payment he is e stopped and there shall be a decree on admission, therefore, invoking section 115 of the Evidence Act the trial court passed the decree. In this connection less said is better because, under the facts and circumstances of the case we find that the learned Joint District Judge has utterly misconstrued the provision of law contemplated under section 115 of the Evidence Act.

In view of the facts and circumstances narrated above, we find that the plaintiff had already made payment of taka 3,75,000/00 as earnest money to the defendant No.1 and we have  also noticed that admittedly the plaintiff is in possession of a part of the suit land , therefore, we are not inclined to go for solatium  to the plaintiff but we feel it proper to direct the defendant No.1 to refund   the earnest money of Taka 3,75,000/– to the plaintiff within 6(six) months, from the date of drawing up of the decree, together with an interest @ 10% per annum till filing of the written statement by the defendant No.1 on 25.02.90 through court  failing which the suit shall stand decreed.

In view what has been stated above, this appeal is allowed without any order as to costs and the impugned judgment and decree dated 11-10-2006 passed in  Title Suit No.303of 2004 by the Joint District Judge, Additional Court, Dhaka is hereby set aside.

Send down the lower court records with a copy of this judgment at once.

K.M. Kamrul Kader ,J :

                  I agree.

zakir/bo.os  H