The case established that an amendment to the plaint regarding the plaintiff's readiness and willingness to perform his part of the contract can be allowed, especially when the plaintiff has already performed his obligations under the contract. The judgment also emphasized the discretionary nature of specific performance as a remedy.

K. Narayana Kurup, J.

1. Defendant in O. S. No. 167 of 1980 on the file of the Court of the Munsiff of Kozhikode is the appellant in this Second Appeal. Respondent is the plaintiff in the suit which was instituted for specific performance of Ext. A-1 agreement executed by the appellant to sell the plaint schedule property in favour of the plaintiff respondent. It is averred in the plaint that on 1,7th March 1978 the appellant defendant executed an agreement (Ext. A-1) in favour of the respondent, agreeing to sell the plaint schedule property measuring 90 cents for a sum of Rs. 5,000, that a sum of Rs. 2,000 was paid as advance, that towards the balance sale consideration a sum of Rs. 1,000 was paid by the plaintiff and a sum of Rs. 2,000 was paid by one Moideenkoya (P.W. 4) who owned money to the plaintiff and that in spite of demand the appellant did not execute a sale deed and convey the property to the plaintiff respondent.

2. The appellant resisted the suit and contended inter alia that he has not executed the agreement, that the payment of Rs. 2,000 as advance and Rs. 3,000 as balance sale consideration is not true and correct, that he had borrowed a sum of Rs. 2,000 from the plaintiff on 17th March 1978 and as security for the loan the title deed of the suit property was handed over to the plaintiff, that a sum of Rs. 1,500 has been repaid and that the plaintiff is not entitled to a decree for specific performance.

3. The evidence in this case consists of oral testimony of P.Ws. 1 to 4 and D.W. 1 and documentary evidence of Exts. A-l to A-4, B-l; to B-6 and X-l. The trial court on an analysis of the evidence held that the agreement (Ext. A-1) was executed by the appellant defendant, that only a sum of Rs. 2,000 was paid by the plaintiff, that a sum of Rs. 3,000 is payable towards the sale consideration and that the plaintiff is entitled to seek specific, performance of the agreement (Ext. A-1). The suit was accordingly decreed on 26th November 1981. The lower appellate court by Judgment and decree dated 26th September 1988 dismissed the appeal A. S. No. 30 of 1982 filed by the defendant appellant and affirmed the decision of the trial court. Hence this Second Appeal.

4. Heard counsel on both sides. The sheet anchor of the appellant's case before this court is that in the plaint as originally filed, there was no averment to the effect that the plaintiff was at all times ready and willing to perform his part of the contract. Even in the amendment to the plaint (I.A. 3146 of 1981), the plaintiff only states that he is ready and willing to perform his part of contract by paying the balance sale consideration if the court finds that the balance sale consideration has not been paid. Even according to the plaintiff, as per the agreement the balance sale consideration was to be paid on or before 30th October 1978 and the document was to be executed, failing which the defendant has agreed in the agreement to compensate the plaintiff. The appellant would contend that the suit was instituted only on 3rd June 1980 and long thereafter on 28th October 1981 the plaintiff came forward with an application for amendment of the plaint by incorporating a plea to the following effect, as Para.4 (a) in the plaint:

(Malayalam)

The case of the appellant is that the amendment introduces a new plea-cause of action which is tailored to suit the occasion, that it is made after the period of limitation, that though the alleged agreement is dated 17th March 1978 the suit is instituted only in June 1980, that the amendment of the plaint was allowed only on 31st October 1981 and that in this view of the matter and in the circumstances of the case the plaintiff is not entitled to the equitable relief of specific performance. In reply to the aforesaid contention, learned counsel for the respondent submitted that under the peculiar facts and circumstances of this case, the respondent defendant had no occasion to plead that he was ready and willing to