A plaintiff seeking specific performance of a contract must aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract, as required by Section 16 (c) of the Specific Relief Act, 1963.

( 1 ) IN this second appeal, only a short question regarding due compliance of S. 16 (c) of the Specific Relief Act has been raised. This was neither raised in the trial Court nor in the Court below. It is sought to be urged for the first time in second appeal here. An application seeking permission to urge this point was made but despite an opportunity being given to oppose it the same has not been availed of. Since this is purely a legal question, I have heard the parties on this point as well.

( 2 ) THE appellants are transferees from the original owner. It was plaintiffs case that the original owner had agreed to transfer the land by a written document on 27-10-1968. At the time of the execution of the agreement, part consideration was paid while the rest was to be paid at registration for which three months time was agreed upon. Since the original owner did not execute the sale deed as agreed and began to prevaricate in the matter and later when it was rumoured that she was trying to transfer the land to the appellants, the present suit was filed, after serving a notice.

( 3 ) BOTH the sets of defendants denied execution of the agreement or that the plaintiff had been put into possession in pursuance thereof. In their written statement the appellant, apart from denying the agreement, had also set up a prior agreement dt. 11-8-1968 favouring them pursuant to which the sale deed was executed on 1-9-1969. According to them this was done without notice of the plaintiffs alleged agreement in a bona fide manner.

( 4 ) THE trial Court dismissed the suit holding that the alleged agreement had not been executed as alleged. On appeal, the lower appellate Court, on a review of the evidence came to the conclusion that the agreement had been executed as alleged and decreed the suit.

( 5 ) AS mentioned earlier, the learned counsel for the appellant has not challenged the findings of fact recorded by the Court below, all that he has tried to press is that the plaintiff had failed to aver his readiness and willingness to perform his part of the obligation under the agreement at all the relevant times. In fact during the hearing, arguments were confined only to this question. To appreciate the argument advanced let us first examine the relevant provisions. Short of unnecessary portions, S. 16 of the Specific Relief Act, 1963, would read as under : -"16. Personal bars to relief. Specific performance of a contract cannot be enforced in favour of a person- (a) and (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 defendant. Explanation.- For the purposes of cl. (c ). (i) where a contract involved the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the Court; (ii) the plaintiff must aver performance of, or readiness and willingness to perform the contract according to its true construction. "

( 6 ) A reading of the section shows that a decree for specific performance cannot be granted to any one who fails to aver and prove that either he had performed or had always been ready and willing to perform the essential terms of the contract. As if that was not sufficient, Explanation (ii) has been added to lay an additional emphasis on these requirements and it provides that averment about performance of or readiness and willingness to perform the contract is sine qua non in a pleading for specific performance. The nature of the provisions essentially make it mandatory and there cannot be any escape from this conclusion. The compliance of the requirements of S. 16 (c) of the Specific Relief Act is, therefore, mandatory in nature and in