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PETITIONER: RAM AWADH (DEAD) BY LRS.  & ORS.

       Vs.

RESPONDENT: ACHBALBAR DUBEY & ANR.

DATE OF JUDGMENT:       01/02/2000

BENCH: S.P.Bharuchan, N.S.Hegde, Ruma Pal

JUDGMENT:

BHARUCHA.  J:

     This appeal stands referred to a Bench of three Judges because  the  two learned Judges who heard It earlier  found difficulty  in  following  the judgment of a  Bench  of  two learned Judges in Jupra.^SInah & Anr.  vs.  LabbSInah & Ors. [(1995) 2 SCC 31].

     It  1s  not  necessary  to go into  any  great  detail insofar  as the facts are concerned.  The appellants  before us  are the legal representatives of a subsequent  purchaser of  certain property.  They were defendants to a suit by one Bachna  for specific performance of an earlier agreement  to sell  that  property  to her.  She had not pleaded  i’n  her plaint that she was ready and willing to perform her part of the  agreement, but that plea was Tater introduced by way of an  amendment.  The question now is in regard to whether she or  her legal representatives were, in fact, at all material times ready and willing to perform their part of

     that agreement.  The first appellate court declined to permit  the  present  appellants to plead and  contend  that Bachna  and her Tegal representatives were never prepared to perform  their part of the agreement and, for this  purpose, it  relied  upon the judgment of this Court in the  case  of Jugraj  Singh.   The High Court, insecond  appeal,  affirmed that view.

     In  Jugraj  Singh’s case, upon  substantially  similar facts, this Court noted Section 16(c) of the Specific Relief Act  and the dictum of the Privy Council in Ardeshir  H.Mama vs.   Flora  Sasson  (55  Ind App 360) that in  a  suit  for specific   performance  the  averment   of   readiness   and willingness  on  the plaintiff’s part, upto the date of  the decree,  was  necessary.  It also noted that this  Court  in Somathinayagam  Pillai vs.  Palaniswami Nadar [(1967) 1  SCR 227]  had  held that it was for the plaintiff in a suit  for specific  performance  "to establish that he was, since  the date  of  the  contract, continuously ready and  willing  to perform his part of the contract.  If he falls to do so, his claim  for  specific performance must fall." Jugraj  Singh’s case, however, held:

     "That   plea   1s  specificaTly   available   to   the vendor/defendant.   It  1s personal to him.  The  subsequent purchasers  have got only the right to defend their purchase

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on  the  premise  that they have no prior knowledge  of  the agreement  of  sale with the plaintiff.  They are bona  tide purchasers  for  valuable  consideration.  Though  they  are necessary parties to the suit, since .any decree obtained by the plaintiff would be binding on the subsequent purchasers, the

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     plea  that  the plaintiff must always be ready  and  - willing  to  perform  his  part  of  the  contract  must  be available  only to the vendor or his legal  representatives, but not to the subsequent purchasers."

     The  decision  in Jugraj Singh’s case was noted  by  a Bench  of.  two learned Judges in Lakhi Ram vs.  Trikha  Ram [(1&98)  2  SCC 720] and doubted, but the appeal  there  was decided  on  another point.  - Section 16 of  the  Specific Performance Act read’s:

     "16.    ’Personal   bars    to   relief.---   Specific performance  of a contract cannot be enforced in favour of a person--

     (a) xxxxx

     -(b)xxxxx

       (c)  who  falls  to  aver and  prove  that  he  has performed  or  has always been ready and willing to  perform the  essential  terms  of  the  contract  which  are  to  be performed  by him, other than terms the performance of which has been prevented or waived by the defendant."

     The obligation imposed by Section 16 is upon the court not to grant specific performance to a plaintiff who has not met the requirements of clauses (a), (b) and (c) thereof.  A court  may  not,  therefore, grant to a  plaintiff  who  has failed  to  aver and to prove that he has performed  or  has always  been  ready and willing to perform his part  of  the agreement  the specific performance whereof he seeks.  There is,  therefore,  no question of the plea being avalTable  to one defendant and not to another.  It is open

     ...4/-

     to  any  defendant to contend and establish  that  the mandatory requirement of Section 16(c) has not been complied with  and it 1s for the court to determine whether it has or has  not  been  complied  with   and,  depending  upon   its conclusion, decree or decline to decree the suit.  We are of the  view  that  the  decision in  Jugraj  Singh’s  case  1s erroneous.

     In  the circumstances, it becomes necessary to  remand the  suit  to  the  trial court, namely, the  Court  of  the Munsif,Gyanpur,  Varanasi, to consider whether or not it has been  established that the original plaintiff Bachna and her legal representatives- had proved that they had performed or were  always ready and willing, to perform the terms of  the agreement for sale in Bachna’s favour.

     The  appeal is avowed.  The judgments and order  under appeal  and  the orders and decrees of the courts below  are set  aside  and the suit 1s remanded to the trial court  for

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decision  of  the question stated above.  The suit shall  be decided as expeditlously as possible, and within a period of six months from today.  - : No order as- to costs.  ;  i