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

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