2021 Supreme(SC) 635

SUPREME COURT OF INDIA
M.R. SHAH, ANIRUDDHA BOSE, JJ.
SUGHAR SINGH - APPELLANT
VERSUS
HARI SINGH (DEAD) THROUGH LRS. & ORS. - RESPONDENTS
CIVIL APPEAL NO. 5110 OF 2021
DECIDED ON : 26-10-2021

IMPORTANT POINTS
(1) Specific Performance is no longer a discretionary relief – Plaintiff cannot be punished by refusing relief of specific performance despite fact that execution of agreement to sell in his favour has been established and proved and that he is found to be always ready and willing to perform his part of contract.
(2) In exercise of powers under Section 100 of CPC High Court ought not to have interfered with findings of fact unless such findings are found to be perverse.

Headnote:

(A) Specific Relief Act, 1963 – Sections 10(a) and 20 – Specific Performance of contract – Specific performance is no longer a discretionary relief – Whether plaintiff was ready and was always ready to perform his part of contract may be inferred from facts and circumstances of a particular case – It is not necessary for plaintiff to produce ready money but it is mandatory on his part to prove that he has means to generate consideration amount – Discretion under Section 20 of Act is required to be exercised judiciously, soundly and reasonably – Even while proving readiness and willingness plaintiff is not required to make any averment that plaintiff required executant of agreement to sell to attend office of Sub-Registrar to execute sale deed within time agreed – To adjudge whether plaintiff is ready and willing to perform his part of contract, Court must take into consideration conduct of plaintiff prior and subsequent to filing of suit alongwith other attending circumstances in a particular case – Plaintiff cannot be punished by refusing relief of specific performance despite fact that execution of agreement to sell in his favour has been established and proved and that he is found to be always ready and willing to perform his part of contract – Not to grant decree of specific performance despite execution of agreement to sell is proved; part sale consideration is proved and plaintiff is always ready and willing to perform his part of contract would encourage dishonesty – In such a situation, balance should tilt in favour of plaintiff rather than in favour of defendant-executant of agreement to sell, while exercising discretion judiciously. (Paras 9 and 10)

(B) Agreement to Sell – Suit for Specific Performance – Appeal by unsuccessful plaintiff – Plaintiff was always ready and willing to perform his part of the contract under agreement to sell – Both, Trial Court as well as First Appellate Court held all issues in favour of plaintiff including issue that plaintiff was always ready and willing to perform his part of contract – However, High Court in exercise of powers under Section 100 of CPC has reversed concurrent findings recorded by both Courts below on readiness and willingness, mainly / solely on the ground that there are no specific averments in plaint which are required as per Section 16(c) of Act – It cannot be said that averments / pleadings lack requirement of Section 16(c) of Act – It is specifically stated in deposition that he was ready and willing to perform his part of obligation in terms of agreement to sell – High Court has committed a grave error in holding issue with respect to readiness and willingness against plaintiff solely on the ground that there are no specific averments / pleadings in plaint as required under Section 16(c) of Act – There were concurrent findings of fact recorded by Trial Court as well as First Appellate Court on readiness and willingness on part of plaintiff, which were on appreciation of evidence on record – In exercise of powers under Section 100 of CPC High Court ought not to have interfered with such findings of fact unless such findings are found to be perverse – Impugned judgment and order passed by High Court in Second Appeal quashed and set aside – Judgment and decree passed by Civil Judge, restored and suit decreed. (Paras 5.1, 6, 6.1, 7, 11 and 12)

Facts of the case:

Feeling aggrieved and dissatisfied with the impugned judgment and order dated 09.09.2010 passed by the High Court of Judicature at Allahabad in Second Appeal No.836 of 2010 by which the High Court has allowed the said Second Appeal under Section 100 of t Code of Civil Procedure, 1908 and has quashed and set aside the judgment and decree for specific performance of the Agreement confirmed by the First Appellate Court, the original plaintiff has preferred the present Appeal.

Findings of Court:

Even amendment to Specific Relief Act, 1963 by which Section 10(a) has been inserted, though may not be applicable retrospectively but can be a guide on the discretionary relief. Now the legislature has also thought it to insert Section 10(a) and now the specific performance is no longer a discretionary relief. As such the question whether the said provision would be applicable retrospectively or not and/or should be made applicable to all pending proceedings including appeals is kept open. However, at the same time, as observed hereinabove, the same can be a guide.

Result : Appeal allowed.