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CASE NO.: Appeal (civil)  1501 of 2000

PETITIONER: H.P. Pyarejan                                                    

RESPONDENT: Dasappa(dead) by L.Rs. & Ors.                            

DATE OF JUDGMENT: 06/02/2006

BENCH: ARIJIT PASAYAT & TARUN CHATTERJEE

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       Challenge in this appeal is to the judgment rendered by a  learned Single Judge of the Karnataka High Court allowing the  second appeal filed by the plaintiff.   

       Factual background in a nutshell is as follows:

       The case of the plaintiff was that he entered into an  agreement of sale on 22.8.1977.  Though defendants 1 to 5  were to execute the agreement, at the time of agreement, the  fifth defendant went out saying that he would come and sign  later, but did not sign it at all and only defendants 1 to 4  signed the agreement of sale.  However, the plaintiff claimed  that defendant-5 must also join in execution of the sale deed  and prayed for a decree for specific performance.

       In the written statement filed by the first defendant, it  was contended that all the defendants are tenants in common  and co-owners.  Defendants 2 to 4 were in need of money  during 1977 and approached the plaintiff to advance loan.   The plaintiff agreed to advance loan provided the defendants  execute an agreement of sale in his favour for the security of  the loan borrowed and expressed his intention that all the  defendants should execute nominal agreement of sale and  then only he would pay the amount.  Under the circumstances  the first defendant and defendants 2 to 4 who were in need of  money were forced to sign the document and believing the  words of the plaintiff, executed a nominal agreement of sale.   The fifth defendant who filed a separate written statement,  however, claimed that there is a collusion between the plaintiff  and defendants 1 to 4 and the suit was brought to harass him  and deprive him of his legal right and interest over the suit  property.  They also contended that there is undue delay on  the part of the plaintiff and the suit was instituted just to  overcome the period of limitation which was about to expire.        

       The Trial Court as well as the First Appellate Court held  that there was no evidence adduced by the plaintiff to show  that he was ready and willing to perform his part of the  contract. It was also noticed that there was no specific  pleading showing readiness and willingness of the plaintiff to  perform his part of the contract.  Accordingly the suit and the  first appeal were dismissed.  Plaintiff filed second appeal  under Section 100 of the Code of Civil Procedure, 1908 (in

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short the ’Code’). The High Court framed the following  questions for adjudication:

1)      Whether the lower Courts were in error in holding  that there is no specific pleading showing the  readiness and willingness of the plaintiff to perform  his part of the contract?

2)      Whether the lower appellate Court was in error in  taking the view that the contract of sale is  indivisible and that defendants 1 to 4 cannot  convey their even 4/5th  share?"

The High Court held that there was specific pleading as  regards the readiness and willingness of the plaintiff to  perform his part of the contract.  It, however, did not record  any finding so far as the second question is concerned. It  accordingly allowed the second appeal.   

       Learned counsel for the appellant has submitted that in  order to satisfy the requirement of Section 16(c) of the Specific  Relief Act, 1963 (in short the ’Act’) the plaintiff  not only  requires to plead that he is ready and willing to perform his  part of the contract but also to prove that aspect.  In the  instant case no proof was adduced.  On the contrary, the  findings of fact recorded by the Trial Court and the First  Appellate Court to the effect that the plaintiff had failed to  establish that he was ready and willing to perform his part of  the contract have been set aside without even formulating a  question of law, which is impermissible.  It was further  submitted that the High Court has placed reliance on some of  the discussions made by the Trial Court and the First  Appellate Court completely ignoring the findings recorded.   

       Learned counsel for the respondents on the other hand  submitted that the High Court has taken note of the factual  position and on a proper analysis of the judgments of the Trial  Court and the First Appellate Court recorded a finding that  requirement of Section 16(c) of the Act was fulfilled.   

       The Trial Court recorded the following findings:

       "Therefore, the evidence of the plaintiff is  an utter lie and he has not offered any  amount as alleged on 22.11.1977.           Even  conceding for a moment that the  plaintiff offered to pay Rs.11,000/- on  22.11.977 and the first defendant has agreed  to execute the sale deed only on 30.11.1977,  the point is, whether the plaintiff again  offered to pay the amount on 30.11.1977.   Admittedly according to P.W.2, the plaintiff  has not offered to pay the defendants 2 to 5.   So far as defendants 2 to 5 are concerned, the  plaintiff has not performed his part of the  contract by offering to pay the balance of the  amount to them.  Secondly, there is no  evidence to show whether the plaintiff has  offered to pay the said amount again on  30.11.1977.  So far as the plaintiff himself is  concerned, he has clearly admitted in his  evidence that only once i.e. about 3 or 4 days  prior to the expiry of three months period

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from the date of agreement he has offered to  pay to the defendants and thereafter he has  never offered the amount.  This clearly shows  that the plaintiff has never offered the amount  on 30.11.1977."

       These conclusions were affirmed by the First Appellate  Court.   

       In order to appreciate the rival submissions Section 16(c)  needs to be quoted along with the Explanations. The same  reads as follows:

"16. Personal bars to relief: (a)     ......... (b)     ......... (c)     who fails 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 of the performance  of which has been prevented or waived by  the defendant.

Explanation- For the purpose of clause (c)- (i)     where a contract involves the  payment of money, it is not essential  for the plaintiff to actually tender to  the defendant or to deposit in Court  any money except  when so directed  by the Court;

(ii)    the plaintiff must aver performance  of, or readiness and willingness to  perform, the contract accordingly to  its true construction."    

             In Ardeshir H. Mama v. Flora Sassoon (AIR 1928 PC  208), the Privy Council observed that where the injured party  sued at law for a breach, going to the root of the contract, he  thereby elected to treat the contract as at an end himself and  as discharged from the obligations. No further performance by  him was either contemplated or had to be tendered.  In a suit  for specific performance on the other hand, he treated and was  required by the Court to treat the contract as still subsisting.   He had in that suit to allege, and if the fact was traversed, he  was required to prove a continuous readiness and willingness  from the date of the contract to the time of the hearing, to  perform the contract on his part. Failure to make good that  averment brings with it and leads to the inevitable dismissal of  the suit. The observations were cited with approval in Prem  Raj v. The D.L.F. Housing and Construction (Private) Ltd. and  Anr. (AIR 1968 SC 1355).

        The requirements to be fulfilled for bringing in  compliance of the Section 16(c) of the Act have been delineated  by this Court in several judgments. While examining the  requirement of Section 16(c) this Court in Syed Dastagir v.  T.R. Gopalakrishna Settty (1999 (6) SCC 337) noted as follows:  

"So the whole gamut of the issue raised is, how  to construe a plea specially with reference to

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Section 16(c) and what are the obligations  which the plaintiff has to comply with in  reference to his plea and whether the plea of  the plaintiff could not be construed to conform  to the requirement of the aforesaid section, or  does this section require specific words to be  pleaded that he has performed or has always  been ready and is willing to perform his part of  the contract. In construing a plea in any  pleading, courts must keep in mind that a plea  is not an expression of art and science but an  expression through words to place fact and law  of one’s case for a relief. Such an expression  may be pointed, precise, sometimes vague but  still it could be gathered what he wants to  convey through only by reading the whole  pleading, depending on the person drafting a  plea. In India most of the pleas are drafted by  counsel hence the aforesaid difference of pleas  which inevitably differ from one to the other.  Thus, to gather true spirit behind a plea it  should be read as a whole. This does not  distract one from performing his obligations as  required under a statute. But to test whether  he has performed his obligations, one has to  see the pith and substance of a plea. Where a  statute requires any fact to be pleaded then  that has to be pleaded may be in any form. The  same plea may be stated by different persons  through different words; then how could it be  constricted to be only in any particular  nomenclature or word. Unless a statute  specifically requires a plea to be in any  particular form, it can be in any form. No  specific phraseology or language is required to  take such a plea. The language in Section 16(c)  does not require any specific phraseology but  only that the plaintiff must aver that he has  performed or has always been and is willing to  perform his part of the contract. So the  compliance of "readiness and willingness" has  to be in spirit and substance and not in letter  and form. So to insist for a mechanical  production of the exact words of a statute is to  insist for the form rather than the essence. So  the absence of form cannot dissolve an essence  if already pleaded."    

       Again in Motilal Jain v. Ramdasi Devi (Smt.) and Ors.  (2000 (6) SCC 420) it was noted as follows: "7. The other contention which found favour  with the High Court, is that plaint averments  do not show that the plaintiff was ready and  willing to perform his part of the contract and  at any rate there is no evidence on record to  prove it. Mr. Choudhary developed that  contention placing reliance on the decision in  Varghese case ((1969) 2 SCC 539). In that  case, the plaintiff pleaded an oral contract for  sale of the suit property. The defendant denied  the alleged oral agreement and pleaded a  different agreement in regard to which the  plaintiff neither amended his plaint nor filed  subsequent pleading and it was in that context

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that this Court pointed out that the pleading  in specific performance should conform to  Forms 47 and 48 of the First Schedule of the  Code of Civil Procedure. That view was  followed in Abdul Khader case (1989) 4 SCC  313).  8.      However, a different note was struck by  this Court in Chandiok case ((1970) 3 SCC  140). In that case ’A’ agreed to purchase from  ’R’ a leasehold plot. ’R’ was not having lease of  the land in his favour from the Government  nor was he in possession of the same. ’R’,  however, received earnest money pursuant to  the agreement for sale which provided that the  balance of consideration would be paid within  a month at the time of the execution of the  registered sale deed. Under the agreement ’R’  was under obligation to obtain permission and  sanction from the Government before the  transfer of leasehold plot. ’R’ did not take any  steps to apply for the sanction from the  Government. ’A’ filed the suit for specific  performance of the contract for sale. One of the  contentions of ’R’ was that ’A’ was not ready  and willing to perform his part of the contract.  This Court observed that readiness and  willingness could not be treated as a  straitjacket formula and that had to be  determined from the entirety of facts and  circumstances relevant to the intention and  conduct of the party concerned. It was held  that in the absence of any material to show  that ’A’ at any stage was not ready and willing  to perform his part of the contract or that he  did not have the necessary funds for payment  when the sale deed would be executed after the  sanction was obtained, ’A’ was entitled to a  decree for specific performance of contract.  9.      That decision was relied upon by a three- Judge Bench of this Court in Syed Dastagir  case ((1999) 6 SCC 337) wherein it was held  that in construing a plea in any pleading,  courts must keep in mind that a plea is not an  expression of art and science but an  expression through words to place fact and law  of one’s case for a relief. It is pointed out that  in India most of the pleas are drafted by  counsel and hence they inevitably differ from  one to the other; thus, to gather the true spirit  behind a plea it should be read as a whole and  to test whether the plaintiff has performed his  obligations, one has to see the pith and  substance of the plea. It was observed : "Unless a statute specifically  requires a plea to be in any  particular form, it can be in any  form. No specific phraseology or  language is required to take such a  plea. The language in Section 16(c)  of the Specific Relief Act, 1963 does  not require any specific phraseology  but only that the plaintiff must aver  that he has performed or has always  been and is willing to perform his  part of the contract. So the

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compliance of ’readiness and  willingness’ has to be in spirit and  substance and not in letter and  form."  It is thus clear that an averment of readiness  and willingness in the plaint is not a  mathematical formula which should only be in  specific words. If the averments in the plaint  as a whole do clearly indicate the readiness  and willingness of the plaintiff to fulfil his part  of the obligations under the contract which is  the subject-matter of the suit, the fact that  they are differently worded will not militate  against the readiness and willingness of the  plaintiff in a suit for specific performance of  contract for sale."

       Lord Campbell in Cork v. Ambergate etc. and Railway Co.  (1851) 117 ER 1229 observed that in common sense the  meaning of such an averment of readiness and willingness  must be that the non-completion of the contract was not the  fault of the plaintiffs, and that they were disposed and able to  complete it had it not been renounced by the defendant.

       The basic principle behind Section 16(c) read with  Explanation (ii) is that any person seeking benefit of the  specific performance of contract must manifest that his  conduct has been blemishless throughout entitling him to the  specific relief. The provision imposes a personal bar.  The  Court is to grant relief on the basis of the conduct of the  person seeking relief.  If the pleadings manifest that the  conduct of the plaintiff entitles him to get the relief on perusal  of the plaint he should not be denied the relief.

       Section 16(c) of the Act mandates the plaintiff to aver in  the plaint and establish as the fact by evidence aliunde that he  has always been ready and willing to perform his part of the  contract.  The principles were recently elaborated in Aniglase  Yohannan v. Ramlatha and Ors. (2005 (7) SCC 534).  

       As rightly contended by learned counsel for the appellant  no question was even formulated regarding the correctness or  otherwise of the findings of facts recorded by the Trial Court.   The High Court has also not discussed as to in what way the  requirement of Section 16(c) regarding the proof of readiness  and willingness of the plaintiff to perform his part of the  contract was fulfilled.   

       In our opinion, therefore, the judgment of the High Court  suffers from serious infirmities. It suffers from the vice of  exercise of jurisdiction which did not vest in the High Court  under the law. Under Section 100 of the Code (as amended in  1976) the jurisdiction of the High Court to interfere with the  judgments of the courts below is confined to hearing on  substantial questions of law. Interference with finding of fact  by the High Court is not warranted if it involves re- appreciation of evidence (see Panchugopal Barua v. Umesh  Chandra Goswami (1997) 4 SCC 713) and Kshitish Chandra  Purkait v. Santosh Kumar Purkait (1997) 5 SCC 438). High  Court has not even discussed any evidence. No basic finding  of fact recorded by the courts below has been reversed much  less any reason assigned for taking a view contrary to that  taken by the Courts below. The finding on the question of  readiness and willingness to perform the contract which is a  mixed question of law and fact has been upset.  It is

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statutorily provided by Section 16(1)(c) of the Act that to  succeed in a suit for specific performance of a contract the  plaintiff shall aver and prove that he has performed and has  always been ready and willing to perform the essential terms  of the contract which were to be performed by him other than  the terms the performance of which has been prevented or  waived by the defendant.                                  

       Looked at from any angle the judgment of the High Court  is vulnerable and needs to be set aside and it is so directed.   

       The appeal is allowed without any order as to costs.