judgment

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:

“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,1 (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.,2 (AIR 1968 SC 1355).

7.While examining the requirement of Section 16(c) this Court in Syed Dastagir v. T.R. Gopalakrishna Settty,3 (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 S