Hari Lal Agrawal, J.

1. -this is a plaintiffs second appeal who instituted a suit for specific performance of a contract for sale on the basis of a Mahadanama (agreement) dated 24.5.1967 (Ext.2) in respect of a shop portion of a building situated in the town of Sitamarhi, fully described in Schedule II of the plaint admittedly the plaintiff is in occupation of the said premises as a tenant. The building bears Municipal khasra no.2080 and is described in Schedule I of the plaint.

2. According to the plaintiffs case, the defendant agreed to sell the suit premises for a consideration of Rs.7,000/-. Out of that Rs.4,000/- was paid by the plaintiff at the time of the agreement as earnest money and the remaining rs.3,000/- was to be paid at the time of the execution of the sale-deed which was to be executed on 25.4.1970, The plaintiffs further case is that although the defendant asked him to purchase the requisite stamps for the purpose of execution of the sale-deed, when the stipulated date approached the defendant went on putting off the matter and, therefore, he instituted the title suit in question. The plaintiff alleged in the plaint that he "has been and is ready to perform his part of the contract by paying the remaining sum of Rs.3,000/- to the defendant the moment the defendant executes the sale-deed and admits its registration".

3. In essence, the relevant defence set up by the defendant in her written statement was that there was no negotiation for sale of Schedule II property and that the Mahadanama in question was a forged and fabricated document under which no consideration passed. Her purpoted thumb-impression and signatures of the attesting witnesses were all forged and fabricated by the plaintiff. Accordingly there could be no occasion for the defendant asking the plaintiff to purchase any stamp duty or putting off the execution of the sale-deed.

4. Both the courts below, on appreciation of the evidence that was produced by the parties, have held that the Mahadanama was a genuine document. The trial court had decreed the suit, but on appeal the lower appellate court, however, dismissed it on the ground that the suit being a suit for specific performance of the contract, was not properly constituted inasmuch as it did not contain the necessary averments on the part of the plaintiff to the effect that he was continuously ready and willing to perform his part of the contract, namely, to pay the sale price, between the date of the contract and the hearing of the suit.

5. The necessary averments in this respect which were made in paragraph 9 of the plaint read as follows :

". . . the plaintiff has ever been ready to perform his part of the contract. . . . any moment she executes the long-awaited kebala and admits registration of the same. "

The court of appeal below while dismissing the suit has held that this was not a clear cut averment by the plaintiff that he was also ready to perform his contract in present as well as in future inasmuch as the expression "has ever been ready" was a "past participle and it does not signify the present or the future. " reliance has been put on the case of Ouseph Varghese V/s. Joseph Aley and others, (1969) 2 SCC 539 ). I will discuss this case a little later.

6. The plaintiff-appellant who also examined himself in support of his case had stated that he was even then ready to pay the balance of the contract money, but the court of appeal below did not find the said statement sufficient in the absence of necessary pleadings in the plaint to that effect which, according to it was a failure to comply with the requirements prescribed in Forms 47 and 48 aforesaid, which was mandatory for a suit for specific performance.

7. Relevant provisions of section 16 of the Specific Relief Act may be quoted :

"16. Personal ban to relief.-Specific performance of a contract cannot be enforced in favour of a person,- (a ). . . . . . (b) (c) who fails to aver and prove that he has performed or has