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PETITIONER: RAMAWADH (DEAD) BY LRS.  &0RS.

       Vs.

RESPONDENT: ACHHALBARDTJBEY & ANR.

DATE OF JUDGMENT:       01/02/2000

BENCH: S.P.Bharucha, 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 i’t earlier found difficulty In following the judgment of a Bench of two learned  -  Judges  in Jugra Singh & Anr vs.  Labh  Singh  & 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  in  her plaint that she was ready and willing to perform her part of the  agreement, but that plea was later 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  periint  the present appellants to  plead  and contend  that..Bachna  and  her legal  representatives  were never  prepared to perform their part of the agreement  and, for this purpose.  It reeled upon the judgment of this Court In  the  case  of Jugraj Singh.  The High Court,  In  second 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.   F^ora  Sasson (56 .  Ind App 360) that in a  suit  for specific   performance  the  averment   of   readiness   and willingness  on  the plaintiff’s part, upto"the dafe of  the decree,  was  necessary.  It a^so noted that thi’s Court  in Gomathi  nayagam P i1 ^ a i 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 faiTs to do so, his claim  for  specific  performance must fall  Jugraj  Singh’s case, however, held:  ..* -  f.  ::, i-..  "

     "That   plea   is  specifically    avanable   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  sa)e 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

     -3-  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 iega^  representatives, but not to the subsequent purchasers.  "

     The  decision  In Jugraj Singh’s case was noted  by  a Bench  of  -two learned Judges In LakhIRam vs.  Tr-ikha  Ram [(1998)  2  SCC 720] and doubted, but the appeal  there  was decided  on  another point.  .- Section 16 of  the  Specific Performance Act reads:

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

     (a) x x xx X (b) x x xx x

     (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 1s  upon  the court  not to grant specific performance to a plaintiff  who has  not  met the requirements of clauses (a), (b)  and  (c) thereof.   Acourt  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 1s, therefore, no question of the plea being available 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 determirte  whether  It  has or has not been  complied  with .:^nd,-  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  ta.the  trial coyrt,name1y  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 allowed.  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 decision of the .question ,stated above.  The suit shall be  decided as expeditlously as possible, and within aperiod of six months from today.  .  No order as- to costs