The requirement of averment in the plaint regarding performance or readiness and willingness to perform the essential terms of the contract, as mandated by Sec.16(c) of the Specific Relief Act, 1963.

B.P.JHA, J.

1. This civil revision petition has been filed against the refusal of the Court below to allow amendment of the plaint.

2. The plaintiffs filed a petition for amendment of the plaint to the effect that the original plaintiff was ready and willing to perform his part of the contract. This amendment was pressed after the close of the case of the defendants. The delay in filing the amendment petition was not explained by the plaintiffs.

3. It is a settled law that if a party fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract, then specific performance of the contract cannot be enforced in favour of a plaintiff. It is an admitted position that this averment was not mentioned in the plaint. It is also an admitted position that there is evidence to the effect that the original plaintiff was ready and willing to perform his part of the contract. On the basis of the said evidence, the plaintiffs now intend to amend the plaint.

4. It is also a settled law that a fact can be proved by evidence provided there is allegation to that effect in the plaint. If the plaint is silent, then the plaintiff is not entitled to prove a fact that he is ready and willing to perform his part of the contract.

5. Sec.16(c) of the Specific Relief Act, 1963 , runs as follows :

"Personal bars 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 always been ready and willing to perform the essential terms of the contract which are to be performed by him other than terms the performance of which has been prevented or waived by the defendants."

Sec.16(c) of the Act requires that if a party fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract, then in that case, a suit for specific performance of a contract must fail. It is, therefore, clear that S.16(c) of the Act requires that a party must aver in the plaint the fact that he has performed or has always been ready and willing to perform his part of the contract. In the absence of such assertion, the evidence adduced in the case to that effect will not help the plaintiff. S.16(c) requires that there must be averment to the effect that the plaintiff has performed or has always been ready and willing to perform the essential terms of the contract. If there is no such averment in the plaint, then no amount of evidence can help the plaintiff in getting a decree in his favour.

6 I agree with the finding of the trial Court and hold that such amendment of the plaint should not have been brought at such a late stage. The matter would be quite different if such an amendment of the plaint is brought at a stage when the parties have not begun adducing evidence in the case.

7. Learned counsel for the petitioners did not raise any question of jurisdictional error. It is within the discretion of the Court to allow or reject amendment of the plaint. There is no question of jurisdictional error. Hence I uphold the impugned order passed by the Court below and dismiss the revision petition, but without any costs.

S.S.SANDHAWALIA, J.

8 I agree.