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CASE NO.: Appeal (civil)  4656 of 2007

PETITIONER: Sita Ram & Ors

RESPONDENT: Radhey Shyam

DATE OF JUDGMENT: 05/10/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.        4656  OF 2007 (Arising out of SLP (C) No.26448 of 2005)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to the order passed by a  learned Single Judge of the Jaipur Bench of Rajasthan High  Court dismissing the Second Appeal filed by the plaintiffs- appellants. It is to be noted that the trial court decreed the  suit, which was one for specific performance of a contract  while the first appellate court set aside the decree. The  appellate court dismissed the suit on the ground that the  pleadings were not in accordance with the provisions of  Section 16(c) of the Specific Relief Act, 1963 (in short the ’Act’).   Learned Single Judge dismissed the Second Appeal holding  that no substantial question of law was involved as essentially  the conclusions of the first appellate court were factual  findings.  

3.      In support of the appeal, learned counsel for the  appellants submitted that in the plaint, in essence, specific  statement had been made about the fact that the plaintiffs had  mentioned to the defendant that they were ready and willing to  do such effort or act as would be necessary to be done by the  plaintiffs for performance of the contract.  It was, therefore,  submitted that the first appellate court and the High Court  were not justified in holding that the requirements of Section  16(c) of the Act were not met. 4.      Per contra, learned counsel for the respondent submitted  that the bare reading of the plaint itself indicated that  Khasra  No. 866 was later on added and, therefore, the question of the  plaintiffs being ready and willing to perform the contract as  originally stood, does not really arise. Specific reference was  made to the pleadings to the effect that though the documents  were executed on 1.9.1977, the same was complete and on  that basis the sale has been concluded.  It is submitted that if  the sale was concluded as pleaded, the question of filing the  suit for specific contract does not arise. Moreover, the  plaintiffs themselves had stated that Khasra No.866 was  added later on.

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

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"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."    

     6.      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).

7.      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  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

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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."    

8.      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 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 : AIR 1990 SC 682).   8.      However, a different note was struck by  this Court in Chandiok case ((1970) 3 SCC 140  : AIR 1971 SC 1238). 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

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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 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

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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."

9.      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.

10.     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. (See Aniglase  Yohannan v. Ramlatha and Ors. (2005(7) SCC 534).

11.     That being so, considering the background facts vested  on the anvil of the principles of law formulated above, the  inevitable conclusion is that the appeal deserves to be  dismissed.  There is no dispute that there was claim in respect  of Khasra 866 which did not form part of the agreement.   There was also an averment to the effect that the agreement  related to a completed sale. There shall be no orders as to  costs.