An amendment of the plaint to include an averment of readiness and willingness to perform a contract is allowable if it does not change the cause of action and the basic facts already exist.

ARIJIT PASAYAT, J.

( 1 ) THE challenge in this civil revision is to the order passed by the learned Addl. Subordinate Judge, Gajam, Barthampur allowing a prayer for amendment made by the plaintiff.

( 2 ) ). The factual backdrop is as follows :- in a suit for specific performance of contract, an application was filed by the plaintiff for insertion of an averment to the effect that the plaintiff was always ready and willing to perform his part of the contract, and to add that being involved in a series of litigations and in order to liquidate certain statutory liability, an agreement for transfer of property was entered into, to raise funds for legal necessity. The learned Addl. Subordinate Judge came to hold that though the petition was filed at a belated stage, yet considering that the hearing of the suit had not commenced, the amendment was to be allowed. Therefore, he accepted the prayer for amendment, subject to payment of cost of' Rupees 100/ -. The legality of the order is assailed primarily founded on the submissions that the suit being of specific performance of contract, readiness and willingness of the plaintiff to perform his part of the contract, constituted the essence for maintainability of the suit and that should not have been permitted to be brought in by an amendment. It was also pleaded that amendment once allowed relates back to the date of filing of the suit, and since the suit would have been hit by law of limitation, had it been filed on the date of application for amendment was filed, the amendment should not have been allowed. The learned counsel for the opp. party No. 1 however, submits that the petitioner having accepted the cost, which was a condition precedent to the acceptance of prayer for amendment, he is estopped for challenging the order passed by the learned. Addl. Subordinate Judge. The order is supported by a submission that the plea was already there and therefore, amendment has been rightly allowed. By a rejoinder reply, it is submitted by the petitioner that payment was accepted under protest, and the question of being estopped from challenging the order did not arise.

( 3 ) I shall deal with the acceptance of cost aspect first. Undisputedly, the cost awarded was offered to the learned counsel for the defendant No. 2 in the Court below, who accepted the same under protest. The cost having been accepted with reservation, there was no disentitlement from challenge.

( 4 ) FOR a resolution of the pivotal dispute, it has to be seen whether an application for amendment of the plaint bringing in the assertion that the plaintiff was ready and willing to perform his part of the contract is entertainable. In view of the mandate of S. 16 of the Specific Relief Act, 1963 (in short the 'act') and requirements of para 3 of Form No. 47 of Appendix "a" to the First Schedule of the Code of Civil Procedure, 1908 (in short the 'code'), it is obligatory for the plaintiff not only to aver in the plaint, but also to prove by evidence that the plaintiff was and is always ready and willing to perform his part of the contract. The primary requirement is that he may aver in the plaint this aspect, and the question of leading evidence of proving of a particular fact necessarily comes into if there is an allegation in the plaint to that effect. The compliance of this requirement is mandatory and in the absence of necessary averment in the plaint and absence of proof of the same, the suit cannot succeed.

( 5 ) FROM a perusal of paragraphs 12 and 18 of the plaint, I find that there are averments to the effect that plaintiff is all along ready to pay the balance consideration money and get the connected sale-deed executed. It has also been asserted that possession of the suit property had been delivered pursuant to the contract for sale, which is to be deemed part performance of the contract. Emphasis is put by the learned counsel for the petitioner on the fact that in the absence of these pleadings, the suit would