In a suit for specific performance of an executed contract, where the plaintiff has already performed his part of the obligation, the requirement of pleading and proving readiness and willingness to perform is dispensed with, and the court has the discretion to allow amendment of the plaint to incorporate such averment if necessary.

JUDGMENT - SHARAD MANOHAR, J.:--- This appeal has got to be allowed on the narrow ground that the view taken by the learned Assistant Judge, who has clearly accepted all the contentions of the plaintiff but, all the same, has dismissed the plaintiff's suit for specific performance, is a hypertechnical view.

2. The facts are very simple. The plaintiff came before the Court contending that he himself and the defendant formed a joint family. Both of them had sold certain property to one Deoram Shivram Tidke. Out of the consideration to be received by both of them from Deoram Shivram Tidke, the defendant persuaded the plaintiff to take an amount less than what was receiveable by him as per his share in the property. The plaintiff took Rs. 7000/- less and correspondingly the defendant took Rs. 7000/- more in that transaction. In this manner, therefore, the plaintiff had given Rs. 7000/- to the defendant. In consideration of this amount the defendant entered into an agreement with the plaintiff to sell the suit property to him for the said amount of Rs. 7000/-. The plaintiff was even put in possession of the property. The defendant, however, would not help the plaintiff in getting the property transferred to the name of the plaintiff in the revenue records and he was adament in not executing the regular sale deed in his favour. Hence in the year 1976 the instant suit, namely Regular Civil Suit No. 296 of 1976, was filed by the plaintiff for specific performance of the said agreement dated 23-2-1973.

The plaintiff also filed an application for injunction restraining the defendant from interfering with his possession of the suit property.

3. By his written statement Exh. 21, the defendant resisted the suit. In the written statement the defendant raised various grievances against the plaintiff; but the most astonishing fact is that the relevant averments made by the plaintiff in the plaint were nowhere denied by him in the written statement. The fact that in the transaction with Deoram Shivram Tidke the defendant had received a larger amount that was receiveable him and that the plaintiff had received a smaller amount than the one which should have been received by him to the extent of Rs. 7000/-, was not denied. Further the fact that on 22-3--1973 he in fact executed the agreement of sale in favour of the plaintiff was not denied by the defendant. The fact that the possession of the suit property was in fact made over to the plaintiff was not denied by him. All the same he wanted the suit to be dismissed.

4. On these pleadings appropriate issues were framed by the learned trial Judge and in view of the meaningless written statement filed by the defendant the trial Court had no other alternative but to decree the plaintiff's suit for specific performance.

5. In appeal the learned Assistant Judge has accepted all the relevant findings of the trial Court. The existence and validity of the agreement dated 23-2-1973 was accepted by him. The finding recorded by the learned trial Judge in connection with the existence and validity of the agreement was not disturbed by him. The learned Assistant Judge however took a very strange view viz. that in the plaint the plaintiff had not made a statement that he was ready and willing to perform his part of the agreement. On this ground the learned Assisted Judge held that the suit for specific performance filed by the plaintiff was not maintainable and ordered instead, the return of the amount of Rs. 7000/- by the defendant to the plaintiff.

6. As stated above at the outset this view is hypertechnical. Such a view should not be taken in by Court unless the Court is absolutely compelled to take such a hypertechnical view. The point is that in the instant case there was nothing to be performed by the plaintiff at all. The entire amount of Rs. 7000/- which was the consideration for the sale deed is already lying in the coffers of the defendant. The possession of the plaint has already made over by the defen

Click Here to Read the rest of this document