Who is entitled to claim the title by adverse possession either person obtained possession under the invalid agreement of sale or invalid sale deed?

In the case of an agreement of sale the party who obtains possession, acknowledges title of the vendor even though the agreement of sale may be invalid. It is an acknowledgment and recognition of the title of the vendor which excludes the theory of adverse possession. The well-settled rule of law is that if a person is in actual possession and has a right to possession under a title involving a due recognition of the owner's title his possession will not be regarded as adverse in law, even though he claims under another title having regard to the well recognized policy of law that possession is never considered adverse if it is referable to a lawful title. The purchaser who got into possession under an executory contract of sale in a permissible character cannot be heard to contend that his possession was adverse. In the conception of adverse possession there is an essential and basic difference between a case in which the other party is put in possession of property by an outright transfer, both parties stipulating for a total divestiture of all the rights of the transferor in the property, and in case in which there is a mere executory agreement of transfer both parties contemplating a deed of transfer to be executed at a later point of time. In the latter case the principle of estoppel applies stopping the transferee from contending that his possession, while the contract remained executory in stage, was in his own right and adversely against the transferor. Adverse possession implies that it commenced in wrong and is maintained against right. When the commencement and continuance of possession is legal and proper, referable to a contract, it cannot be adverse.

9. In the case of an executory contract of sale where the transferee is put in possession of the property in pursuance of the agreement of sale and where the parties contemplate the execution of a regular registered sale deed the animus of the purchase throughout is that he is in possession of the property belonging to the vendor and that the former's title has to be perfected by a duly executed registered deed of sale under which the vendor has to pass on and convey his title. The purchaser's possession such cases is of a derivative character and in clear recognition of and in acknowledgment of the title of the vendor. The position is different in the case where in pursuance of an oral transfer or a deed of transfer not registered the owner of a property transfers the property and puts the transferee in possession with the clear animus and on the distinct understanding that from that time onwards he shall have no right of title to the property. In such a case the owner of the property does not retain any vestige of right in regard to the property and his mental attitude towards the property is that it has ceased to belong to him altogether. The transferee after getting into possession retains the same with the clean animus that he has become the absolute owner of the property and in complete negation of any right or title of the transferor, his enjoyment is solely as owner in his right and not derivatively or in recognition of the title of any person. So far as the vendor is concerned both in mind and actual conduct, there is a total divestiture of all his right, title and interest in the property. This applies only in a case where there is a clear manifestation of the intention of the owner to divest himself of the right over the property. On the other hand in the case of an executory contract the possession of the transferee until the date of registration of the conveyance is permissive or derivative and in law is deemed to be on behalf of the owner himself. The correctness of the decision in Annamaliv. Muthiah MANU/SC/0013/1989 : ILR (1965) Mad 254 (supra) cannot, therefore, be doubted.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1945 of 1974

Decided On: 17.11.1989

Achal Reddi Vs   Ramakrishna Reddiar and Ors.

Hon'ble Judges/Coram:

G.L. Oza and M. Fathima Beevi, JJ.

Citations: 1990 AIR 553, 1989 SCR Supl. (2) 193, MANU/SC/0012/1989

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Whether written arbitration agreement can be superseded by any oral demand or agreement?

A perusal of the arbitration clause reveals that the same contemplated the appointment, only of a Sole Arbitrator, by the Respondent. It is indeed strange as to how a three member tribunal came to be constituted by the Respondent. The Respondent appears to have "played safe" in the words of the learned counsel for the Respondent. There is, however, nothing on record to show that the Petitioner indeed demanded for constitution of a three member tribunal. It is nigh possible that the Respondent decided to adopt a fair attitude by appointing a three member tribunal, however, if a three member tribunal had to be appointed, then the same ought to have been done with the consent of the Petitioner and in accordance with the provisions of the Act. The arbitration agreement, as per the 1996 Act, has to be in writing and since the arbitration clause, which is a part of the contract, was in writing, the same could not have been superseded by any oral demand or agreement. The Petitioner may have been clever in orally demanding a three member tribunal but it is clear that the procedure adopted by the Respondent is impermissible.

IN THE HIGH COURT OF DELHI

O.M.P. (COMM) 136/2017

Decided On: 27.08.2018

 Mother Boon Foods Pvt. Ltd. Vs.  Mindscape One Marketing Pvt. Ltd.

Hon'ble Judges/Coram:

Prathiba M. Singh, J.

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Whether registered sale deed can be discarded on ground that it does not bear signature of vendor where his name is written?

 An interesting question arises in this appeal is, as to whether a registered sale deed which does not bear signature of the vendor at the place where his name is written as the vendor, but bears his signatures in places where corrections are made in the text of the sale deed and it also bears signature on the reverse of the last page along with his thumb impression, acknowledging receipt of balance consideration, before the Registrar, can be said to be a valid sale deed or it has to be discarded only because signature of the vendor is absent at the place where his name is written as the vendor.

 In the light of the aforesaid position of law, it becomes clear that mere absence of signature of respondent No. 1 at one place in the aforesaid registered sale deed dated 25.01.1999, cannot become the basis for the respondent No. 1 to claim that such sale deed was never executed. The aforesaid question of fact regarding execution of the registered sale deed has to be ascertained on the basis of evidence on record. In the present case, the evidence on record is in the form of both attesting witnesses and the scribe appearing before the Court and deposing in favour of execution of the aforesaid registered sale deed by the respondent No. 1 in favour of the appellant. There is record of the Registrar's Office and facts have come on record showing that the respondent No. 1 is a well educated person and not an illiterate person who was taken for a ride by the appellant and misled into execution of a document which the respondent No. 1 never intended to execute. The appellate Court has erred in proceeding on the basis that the appellant ought to have proved that the signatures and thumb impression on the aforesaid registered sale deed were that of the respondent No. 1, when it was the respondent No. 1 who was denying his signatures and thumb impression on the registered document. Being the plaintiff, the burden was on respondent No. 1 to prove that the signature and thumb impression on the sale deed were not his, particularly because it was a registered document. It is also a fact that the respondent No. 1 never filed any police complaint in respect of his signatures having been allegedly forged on the registered sale deed dated 25.01.1999, which is also a relevant factor in the present case. The appellant examined both the attesting witnesses and scribe to prove that the respondent No. 1 indeed executed the registered sale deed on 25.01.1999 in the Registrar's Office. The appellate Court has held that emphasis placed by the trial Court on admission of respondent No. 1 about oral agreement to sale, was misplaced. But, this conclusion of the Appellate Court is also erroneous because the admission of oral agreement on the part of the respondent No. 1 did indicate that the parties were in the process of executing the aforesaid registered sale deed pertaining to the suit property. Even if the appellate Court found that the agreement dated 23.01.1998 was a suspicious document, admission of respondent No. 1 that there was an oral agreement did assume significance in the facts and circumstances of the present case.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 55 of 2016

Decided On: 10.04.2018

 Ramesh Vs.  Ratnakar and Ors.

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2018( 5) MHLJ 132

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Whether court should give leave to defend in summary suit if suit is based on oral agreement?

Admittedly, in this case, as the suit is not based on the written contract, there is no question of considering whether leave to defend to be granted or not and whether it was to be granted conditionally. As the suit is not based on the written contract, the suit in present summary form is not maintainable. Therefore, reliance placed by learned counsel for the respondent on the authorities of Supreme Court in cases of i) Southern Sales and Services and others v. Sauermilch Design and Handels GMBH [MANU/SC/4488/2008 : (2008) 14 SCC 457 ii) IDBI Trusteeship Services Ltd. v. Hubtown Ltd., [MANU/SC/1490/2016 : (2017) 1 SCC 568] which deal with as to when leave to defend can be granted and on which conditions can be granted, cannot be applicable to the facts of the present case. In order to consider the question whether leave to defend should be granted or not, the suit should have been based on "written" contract, as per provisions of Order 37 Rule (1) CPC.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 13607 of 2017

Decided On: 30.01.2018

Yogesh Babanrao Vedpathak Vs. Ranjeet Singh Pyara Singh Kaura

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi, J.

Citation: 2018(4) MHLJ 35

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Whether arbitration clause is applicable to oral agreement?

As we have already held that the oral agreement as
evidenced by the transcript of conversation between the
appellant No. 2 and the respondent on 06/07.04.2011
substituting the alleged written agreement dated 06.06.2009
and which contained a clause for arbitration, the same clause
for arbitration would also be applicable to the oral agreement.

 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
 CIVIL APPEAL NO. 8837 OF 2016
Mrs. Hema Khattar & Anr. V Shiv Khera 
Dated:APRIL 10, 2017.

Citation: AIR 2017 SC 1793,(2017) 7 SCC 716,2018(1) MHLJ 119

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Leading Supreme court Judgment on suit for specific performance of contract based on oral agreement

There is no dispute that even a decree for specific performance can be granted on the basis of oral contract. Lord Du Parcq in a case (AIR 1946 Privy Council) observed, while deciding a suit for specific performance, that an oral contract is valid, binding and enforceable. A decree for specific performance could be passed on the basis of oral agreement. This view of a Privy Council was followed by this Court in the case of Koillipara Sriramulu vs. T. Aswatha Narayana, AIR 1968 SC 1028, and held that an oral agreement with a reference to a future formal contract will not prevent a binding bargain between the parties.

20. However, in a case where the plaintiff come forward to seek a decree for specific performance of contract of sale of immoveable property on the basis of an oral agreement or a written contract, heavy burden lies on the plaintiff to prove that there was consensus ad idem between the parties for the concluded agreement for sale of immoveable property. Whether there was such a concluded contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has to be established by the plaintiffs that vital and fundamental terms for sale of immoveable property were concluded between the parties.

21. In a suit for specific performance of a contract, the Court has to keep in mind Section 20 of the Specific Reliefs Act. This Section preserves judicial discretion to grant decree for Specific performance. However, the Court is not bound to grant specific performance merely because it is lawful to do so. The Court should meticulously consider all facts and circumstances of the case and to see that it is not used as an instrument of oppression to have an unfair advantage not only to the plaintiff but also to the defendant.

22. In the case of Surya Narain Upadhyaya vs. Ram Roop Pandey and others, 1995 Supp (4) SCC 542, this Court while considering Section 20 of the Specific Relief Act held as under:-

“4. Though the decree for specific performance is a discretionary power, yet the court is not bound to grant such a relief merely because it is lawful to do so; but the discretion of the court is not arbitrary, but sound and reasonable, guided by judicial principles of law and capable of correction by a court of appeal. Therefore, the discretion should be properly exercised keeping in view the settled principles of law as envisaged in Section 20 of the Act. This case demonstrates that the High Court took irrelevant consideration into account to refuse to grant the decree for specific performance. It also committed manifest illegality in reversing the concurrent finding of facts recorded by the trial court as well as the first appellant court, namely the appellant has always been ready and willing to perform his part of the contract.”

23. It is equally well settled that relief of specific performance is discretionary but not arbitrary, hence, discretion must be exercised in accordance with sound and reasonably judicial principles. The cases providing for a guide to courts to exercise discretion one way or other are only illustrative, they are not intended to be exhaustive, In England, the relief of specific performance pertains to the domain of equity, but in India the exercise of discretion is governed by the statutory provisions.

24. In the case of Mayawanti vs. Kaushalya Devi, (1990) 3 SCC 1, this Court observed as under:-

“8. In a case of specific performance it is settled law, and indeed it cannot be doubted, that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract. The Law of Contract is based on the ideal of freedom of contract and it provides the limiting principles within which the parties are free to make their own contracts. Where a valid and enforceable contract has not been made, the court will not make a contract for them. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the court will be there even though the contract is otherwise valid and enforceable and it can pass a decree of specific performance even before there has been any breach of the contract. It is, therefore, necessary first to see whether there has been a valid and enforceable contract and then to see the nature and obligation arising out of it. The contract being the foundation of the obligation the order of specific performance is to enforce that obligation.”

25. In the case of K. Prakash vs. B.R. Sampath Kumar, (2015) 1 SCC 597, this Court held:

“13. Indisputably, remedy for specific performance is an equitable remedy. The court while granting relief for specific performance exercises discretionary jurisdiction. Section 20 of the Act specifically provides that the court’s jurisdiction to grant decree of specific performance is discretionary but not arbitrary. Discretion must be exercised in accordance with the sound and reasonable judicial principles.

14. The King’s Bench in Rooke’s case said:

“Discretion is a science, not to act arbitrarily according to men’s will and private affection: so the discretion which is exercised here, is to be governed by rules of law and equity, which are not to oppose, but each, in its turn, to be subservient to the other. This discretion, in some cases follows the law implicitly, in others, allays the rigour of it, but in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to this Court. That is a discretionary power, which neither this nor any other court, not even the highest, acting in a judicial capacity is by the Constitution entrusted with.”

15. The Court of Chancery in Attorney General v. Wheate followed Rooke’s case and observed: (ER p. 666) “… the law is clear, and courts of equity ought to follow it in their judgments concerning titles to equitable estates; otherwise great uncertainty and confusion would ensue. And though proceedings in equity are said to be secundum discretionem boni viri, yet, when it is asked, vir bonus est quis? The answer is, qui consulta patrum, qui leges juraque servat. And as it is said in Rooke’s case, that discretion is a science not to act arbitrarily according to men’s wills and private affections; so the discretion which is to be executed here, is to be governed by the rules of law and equity, which are not to oppose, but each in its turn to be subservient to the other. This discretion, in some cases follows the law implicitly; in others assists it, and advances the remedy; in others, again, it relieves against the abuse, or allays the rigour of it; but in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to this Court. That is a discretionary power, which neither this, nor any other court, not even the highest, acting in a judicial capacity, is by the constitution entrusted with. This description is full and judicious, and what ought to be imprinted on the mind of every Judge.”

16. The principle which can be enunciated is that where the plaintiff brings a suit for specific performance of contract for sale, the law insists upon a condition precedent to the grant of decree for specific performance: that the plaintiff must show his continued readiness and willingness to perform his part of the contract in accordance with its terms from the date of contract to the date of hearing. Normally, when the trial court exercises its discretion in one way or the other after appreciation of entire evidence and materials on record, the appellate court should not interfere unless it is established that the discretion has been exercised perversely, arbitrarily or against judicial principles. The appellate court should also not exercise its discretion against the grant of specific performance on extraneous considerations or sympathetic considerations. It is true, as contemplated under Section 20 of the Specific Relief Act, that a party is not entitled to get a decree for specific performance merely because it is lawful to do so. Nevertheless once an agreement to sell is legal and validly proved and further requirements for getting such a decree are established then the court has to exercise its discretion in favour of granting relief for specific performance.”

26. Reference may also be made by this Court in the case of Zarina Siddiqui vs. A. Ramalingam, 2015 (1) SCC 705, this Court observed as under:-

“33. The equitable discretion to grant or not to grant a relief for specific performance also depends upon the conduct of the parties. The necessary ingredient has to be proved and established by the plaintiff so that discretion would be exercised judiciously in favour of the plaintiff. At the same time, if the defendant does not come with clean hands and suppresses material facts and evidence and misleads the court then such discretion should not be exercised by refusing to grant specific performance.”

Supreme Court of India

K. Nanjappa (D) By Lrs vs R.A. Hameed @ Ameersab (D)By Lrs. & ... on 2 September, 2015

Bench: M.Y. Eqbal, C. Nagappan

REPORTABLE

Citation;(2016) 1 SCC 762

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Whether oral agreement is enforceable in law?

There is no dispute that such oral agreement is enforceable in law.

Bombay High Court

Subhash Dhanraj Sankla vs Kajkhushroo Alias Kaki Phiroze ... on 12 September, 2013

Bench: Anoop V. Mohta

Citation:2013(6) MHLJ 296 Bom

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Whether time is essence of contract is a matter of trial?

The learned Counsel appearing for the Appellant has cited the judgment of the Apex Court in the case of Saradmani Kandappan Vs. S.

Rajalakshmi & Ors.[(2001) 12 SCC 18] and contended that the time is always the essence of such contract and therefore there was no expressed willingness and/or steps taken by the Appellant in theme, therefore the contract itself was terminated. This facets in the present case and reasons so given by the learned Judge while rejecting the interim injunction, is only one of the facets, which cannot prevail over other reasons so recorded in the above background. The time whether essence of the contract, is again a matter of trial specially the reason behind the delay and non-compliance of the obligations by the respective parties.

Merely because the submission is made that the time was not essence of the contract, that cannot be accepted as there is no admission of other side, nor the finding at the prima facie stage can be given 

Bombay High Court

Subhash Dhanraj Sankla vs Kajkhushroo Alias Kaki Phiroze ... on 12 September, 2013

Bench: Anoop V. Mohta

Citation:2013(6) MHLJ 296 Bom

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How to appreciate evidence if there is plea that money was paid to other side without obtaining Receipt?

 The plaintiff filed the suit OS No. 44 of 1988 for the relief of specific performance of the oral agreement dated 1-5-1988. It is true that oral agreements are not prohibited in law. However, whenver

the very existence of such an oral agreement is disputed by one fo the parties, heavy burden lies upon the party who pleads of such an oral agreement, to establish its existence as well as the conditions thereof with the support of clinching and admissible evidence. The nature and extent of proof in this regard varies from case to case. It depends upon the proximity or otherwise of the parties, nature of the transactions existing between them in the past, the conduct and various steps undertaken by the parties after the alleged agreement of sale etc,

19. In this case, the plaintiff was the tenant of the 1st defendant as on the date of the alleged agreement of sale. The plaintiff did not plead or establish that the mutual confidence between them and the 1st defendant was such that they paid to or received from the 1st defendant amounts without insisting upon receipts prior to 1-5-1988. If there was such a relationship between the parties, spread over for a substantial period, it would not have been difficult to accept the plea of the plaintiff that by reposing confidence in the 1st defendant, he paid substantial amounts. On the other hand, the evidence on record reveals that between 5-5-1987 and 22-4-1988, the plaintiff is said to have paid about eleventh or twelve thousand rupees in the form of rent was well as loans to the 1st defendant. For this amount, about 18 receipts were taken by the plaintiff. The receipts cover the amounts varying from Rs.169/-(Ex.A4 dated 12-3-1988,), Rs.300/- towards rent (Exs.A1 dated 5-5-1987, A2 dated 21-6-1987, A3 dated 31-8-1987) to Rs.1,600/-on 25-10-1987 (Ex.A4 is a bunch of 15 receipts for various amounts). When such was the conduct and state of affairs between the parties, it is next to impossible to imagine that the plaintiff paid an amount of Rs.50,000/- on 1-5-1988 and another Rs.50,000/- on 6-5-1988 without there being either an agreement of sale or formal receipts.

IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD

AS No. 2862 of 1996 and Cross-objections and 40 of 1999 and CMP No. 21122 of 2001 and Cross-objections

Decided On: 20.02.2002

Appellants: Yelamati Veera Venkata Jaganadha Gupta and Anr.
Vs.
Respondent: Vejju Venkateswara Rao and Ors.

Hon'ble Judges/Coram:
L.N. Reddy, J.

Citation:AIR 2002 AP 369

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When court should not grant decree for specific performance of contract on the basis of oral agreement?

First it would be necessary to deal with the effect of Section 53(A) of the T.P. Act. It is fairly accepted that in the case of an oral agreement of sale the defence under Section 53(A) of the TP Act is not available to a party who alleges to be in possession of the property.

The High Court has rightly concluded that there is no clear proof relating to the other terms of condition. The relief of specific performance is discretionary relief and except the oral evidence, there is no clear evidence to prove several of the essential terms which have been taken note of by the High Court. The High Court, on analyzing the evidence, has come to hold that except Exhibit B-1 and the oral evidence of DW 1 and DW2, there is no other clear proof relating to the other terms and conditions of the contract which can be termed as essential conditions like delivery of possession and also the obtaining of permission from the Urban Land Ceiling Authorities and therefore, it cannot be said that all the essential terms and conditions of a well concluded contract had been established in the case at hand.

Supreme Court of India

V.R. Sudhakara Rao & Ors vs T.V. Kameswari on 18 April, 2007

Bench: Dr. Arijit Pasayat, Lokeshwar Singh Panta

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Whether registered agreement of sale can be contradicted by evidence of oral agreement?

23. In the backdrop of the depositions of witnesses of both sides we find that the agreement, Exhibit 1, which was duly registered under the Indian Registration Act is an admitted document. The period of agreement stated to have been extended on two occasions, once up to 31-12-2003 and then up to 15th January, 2004 but both these extensions were allegedly made orally. The terms of the agreement having been written in Exhibit 1 and registered under the Registration Act the subsequent oral agreements in this respect would be barred under Section 92 of the Indian Evidence Act and no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms. The terms of Exhibit 1 as regards the default clause is allegedly varied and extended but the Exhibit 1 being a registered instrument, subsequent variation of such agreement would also be required to be entered into by a registered document only.

IN THE HIGH COURT OF GAUHATI (AGARTALA BENCH)

R.F.A. No. 03 of 2005

Decided On: 15.05.2010

Appellants: Nibash Ch. Saha and Anr.

Vs.

Respondent: Champa Lal Ladhar

Hon'ble Judges/Coram:
H.N. Sarma and Arun Chandra Upadhyay, JJ.

Citation: AIR2010Gau137, (2010)5GLR143, 2010(3)GLT407

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Whether benefit of S.53A of transfer of property Act can be claimed on the basis of oral agreement?

The learned counsel further argued that the plaintiff has
failed to prove the execution of Ex-P/2 by the defendant by
which the possession of the disputed plot was given by the
plaintiff
to
the
defendant
as
per
plaintiff's
pleadings.
Consequently, the defendant has been provided protection
under Section 53-A of the Transfer of Property Act as the
possession was given to the defendant on 20.09.02 by receiving

a sum of Rs. 40,000/- as part payment of consideration as per
sale agreement. The said contention has also no relevance in
this case as the said contract is oral whereas for seeking
protection under section 53-A of the T.P. Act the contract to sell
must have been written one. Moreover, terms and conditions of
the contract ought to be complied with by the purchaser on his
part. In this case, both the conditions on the part of the
defendant have not been fulfilled. The judgment in the case of
Bhavuti vs. Alam (deceased) through Lrs. And anr. 2013 (4)
M.P.L.J. 39 has held that the transferee has to show that he
has done some act in furtherance of the contract and has
performed or is ready and willing to perform part of his contract.
In this case the defendant has not tried to get the sale
deed executed in his favour as per alleged oral contract to sell.
Thus, the inference is drawn that the defendant has not
complied with the requisite conditions for part performance of
the contract under Section 53-A of the T.P. Act. Hence, the
defendant is not entitled to get the permission of the Section 53-
A of the T.P.Act.
MADHYA PRADESH HIGH COURT
GWALIOR BENCH
S.A. No.383/2013
17/01/2014
Dhannalal ahirwar v Satyanarayan

Citation; AIR 2014(NOC) 497 MP

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What are basic principles for deciding suit for specific performance of contract based upon oral agreement?

In the instant case, it is a suit for specific performance of contract based upon the oral agreement to sale dated 22.02.2003 of the suit land. It can not be disputed that even oral agreement to sale of immovable property, can be specifically enforced. However, assessment of prima facie case, in a suit for specific performance of contract, based upon the oral agreement, has to be different than such a suit, based upon the written agreement. In a suit based upon the written agreement, the agreement placed on record and its contents, become significant and the same can be read along with the averments made in the plaint. The written agreement placed on record, discloses the names of parties, their place of residence, the place of agreement, consideration, the 

description of the property and other terms and conditions of contract, which the parties have entered into. Normally, in such a suit, what is required to be seen, is the interpretation of the terms of contract and compliance of it. It becomes easier for the Court to reduce the controversial position. This is not the advantage, in case of suit based upon the oral agreement. The court is at loss to know the prima facie, undisputed factual position, which can only be ascertained, by reading the averments made in the plaint and the stand taken in written statement. In a suit for specific performance of contract based upon the oral agreement, the averments made in the plaint carry great weight and significance in ascertaining even a prima facie case. The averments are required to be strictly construed and heavy burden lies upon the plaintiff to establish the consensus ad idem. The Court has to proceed cautiously and read the averments minutely, to understand the exact nature of case, to find out, whether prima facie case is made out or not. The averments in the plaint, must inspire the confidence of the court, as to credibility of the plaintiff and truthfulness of the averments. The 

inconsistency in the averments made in the plaint, lack of material facts and particulars or vagueness and unspecific averments in plaint etc, would be the instances, which shall be considered against the plaintiff, while judging the prima facie case. The very first thing to find out the prima facie case is whether, the plaint averments contain the material facts and particulars establishing the complete chain of events disclosing the cause of action. It has to be borne in mind that even the absence of single material fact, entails the consequences of rejection of plaint, leave apart the question of making out prima facie case. Even if the material facts are pleaded and material particulars are absent or if the averments in the plaint are inconsistent, it can be said that the plaint averments do not make out a prima facie case.

Bombay High Court

Mannalal S/O Bhagwandas Agrawal vs Upendrakumar S/O Sawarmal ... on 20 November, 2009

Bench: Ravi K. Deshpande

Citation:2010(2) ALLMR 360

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