IMPORTANT POINT
Court cannot order specific performance in a suit with regard to a property which is not subject-matter of suit property.

G. Rajasuria, J.— This second appeal is focussed by the original plaintiff, animadverting upon the judgment and decree dated 25.8.2009 passed in A.S.No.17 of 2009 by the Principal Subordinate Judge, Villupuram, reversing the judgment and decree of the learned Principal District Munsif, Ulundurpet in O.S.No.188 of 2006. The parties are referred to here-under according to their litigative status and ranking before the trial Court.

2. A summation and surnrnarisation of germane facts absolutely necessary for the disposal of this Second Appeal would run thus:

(a) The plaintiff Devaki, respondent herein filed the suit for specific performance of agreement to sell in respect of an immovable property.

(b) The defendants resisted the suit.

(c) Whereupon the trial Court framed the relevant issules:

(d) Up went the trial, during which the plaintiff Devaki examined herself as PW1 and Exts. A1 and A2 were marked; and D1 Vinayagamoorthy, D2 Manonmani examined themselves as DW1 and DW2 along with DW3 Ayyappan and Exts. B1 to B3 were marked.

(e) Ultimately the trial Court decreed the suit granting specific performance in respect of Plot No.75, which is not the suit property, but dismissed the suit in respect of Plot No.71, which was the suit property.

3. Being aggrieved by and dissatisfied with the judgment of the trial Court, the said Devaki preferred appeal, whereupon, the appellate Court modified the judgment and decree of the trial Court and granted specific performance in respect of the suit property bearing Plot No. 71.

4. Challenging ‘and impugning the judgment and decree of the first appellate Court, this Second Appeal is focussed on various grounds and also suggesting the following substantial questions of law:

“(a) Whether the Court below is right in decreeing the suit for specific performance in favour of the plaintiff when the plaintiff has failed to prove the alleged payment of balance of sale consideration?

(b) Whether the Court below is right in decreeing the suit for specific performance when the plaintiff has come forward with a false plea regarding the payment of whole of the sale consideration?

(c) Whether the Court below is right in decreeing the suit for specific performance when the plaintiff has even failed to aver in the pleadings the readiness and willingness?

(d) Whether the Court below is right in decreeing the suit for specific performance when the plaintiff has failed to prove that she was ready and willing throughout? (extracted as such)

5. At this stage, after hearing both sides, the following substantial question of law are framed for disposal:

“1. Whether both the Courts below failed to take note of the fact that the plaint was bad for want of an averment as per Section of the Specific Relief Act the effect, that the plaintiff was ready and willing to perform her part of the contract?

2. Whether the Courts below failed to take note of the non-production of the receipt before the Court concerning the payment of the remaining part of sale consideration of Rs.6,000 (Rupees six thousand only) by the plaintiff?

3. Whether both the Courts below did not adhere to the mandates as contained in Sections 16 and 20 of the Specific Relief Act?

4. Whether there is any perversity or illegality in the judgments and decrees of both the Courts below?

6. All these points are taken together for discussion as they are inter-linked and interwoven with one another.

7. The learned counsel for the appellants/defendants would pyramid his arguments, which could succinctly and precisely be set out thus:

(a) The plaint is silent as silence could be in respect of the averments relating to readiness and willingness to perform her part of the contract. .

(b) Even though in the deposition also the plaintiff admitted as PWI that she was having the receipt evidencing the payment of the remaining part of the sale consideration of Rs.6,000 (Rupees six thousand only) to the first defendant after the death of