Important Point
Section 16(c) of Specific Relief Act mandates the plaintiff to aver in plaint and establish as fact by evidence that he has always been ready and willing to perform his part of contract.

Headnote:Specific Relief Act, 1963—Section 16(c)—Suit for specific performance of agreement—Trial Court and 1st appellate Court dismissed suit holding that there was no evidence adduced by plaintiff to show that he was ready and willing to perform his part of contract—High Court decreed suit in second appeal observing that there was specific pleading as regards the readiness and willingness of plaintiff to perform his part of contract—Appeal—Any person seeking benefit of specific performance of contract must manifest that his conduct had been blemishless throughout entitling him to specific relief—Section 16(c) of the Act mandates plaintiff to aver in plaint and establish as fact by evidence that he has always been ready and willing to perform his part of contract—High Court did not discuss as to in what way requirement of Section 16(3) of the Act was fulfilled—No basic finding of fact recorded by Courts below was reversed and no reason assigned for taking a view contrary to that taken by Courts below—Impugned judgment was liable to be set aside.
Held : The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief. Section 16(c) of the Act mandates the plaintiff to aver in the plaint and establish as the fact by evidence aliunde that he has always been ready and willing to perform his part of the contract. The principles were recently elaborated in Aniglase Yohannan v. Ramlatha and Ors. (2005 (7) SCC 534). As rightly contended by learned counsel for the appellant no question was even formulated regarding the correctness or otherwise of the findings of facts recorded by the Trial Court. The High Court has also not discussed as to in what way the requirement of Section 16(c) regarding the proof of readiness and willingness of the plaintiff to perform his part of the contract was fulfilled. In our opinion, therefore, the judgment of the High Court suffers from serious infirmities. It suffers from the vice of exercise of jurisdiction which did not vest in the High Court under the law. Under Section 100 of the Code (as amended in 1976) the jurisdiction of the High Court to interfere with the judgments of the courts below is confined to hearing on substantial questions of law. Interference with finding of fact by the High Court is not warranted if it involves re-appreciation of evidence (see Panchugopal Barua v. Umesh Chandra Goswami (1997) 4 SCC 713) and Kshitish Chandra Purkait v. Santosh Kumar Purkait (1997) 5 SCC 438). High Court has not even discussed any evidence. No basic finding of fact recorded by the courts below has been reversed much less any reason assigned for taking a view contrary to that taken by the Courts below. The finding on the question of readiness and willingness to perform the contract which is a mixed question of law and fact has been upset. It is statutorily provided by Section 16(1)(c) of the Act that to succeed in a suit for specific performance of a contract the plaintiff shall aver and prove that he has performed and has always been ready and willing to perform the essential terms of the contract which were to be performed by him other than the terms the performance of which has been prevented or waived by the defendant. (Paras 14 to 17)

JUDGMENT

Arijit Pasayat, J.—Challenge in this appeal is to the judgment rendered by a learned Single Judge of the Karnataka High Court allowing the second appeal filed by the plaintiff.

2. Factual background in a nutshell is as follows :

The case of the plaintiff was that he entered into an agreement of sale on 22.8.1977. Though defendants 1 to 5 were to execute the agreement, at the time of agreement, the fifth defendant went out saying that he would come and sign later, but did not sign it at all and only defendants 1 to 4 signed the agreement of sale. However, the plaintiff claimed that defendant-5 must also join in execution of the sale deed and prayed for a decree for specific performance.

3. In the written statement filed by the first defendant, it was contended that all the defendants are tenants in common and co-owners. Defendants 2 to 4 were in need of money during 1977 and approached the plaintiff to advance loan. The plaintiff agreed to advance loan provided the defendants execute an agreement of sale in his favour for the security of the loan borrowed and expressed his intention that all the defendants should execute nominal agreement of sale and then only he would pay the amount. Under the circumstances the first defendant and defendants 2 to 4 who were in need of money were forced to sign the document and believing the words of the plaintiff, executed a nominal agreement of sale. The fifth defendant who filed a separate written statement, however, claimed that there is a collusion between the plaintiff and defendants 1 to 4 and the suit was brought to harass him and deprive him of his legal right and interest over the suit property. They also contended that there is undue delay on the part of the plaintiff and the suit was instituted just to overcome the period of limitation which was about to expire.

4. The Trial Court as well as the First Appellate Court held that there was no evidence adduced by the plaintiff to show that he was ready and willing to perform his part of the contract. It was also noticed that there was no specific pleading showing readiness and willingness of the plaintiff to perform his part of the contract. Accordingly the suit and the first appeal were dismissed. Plaintiff filed second appeal under Section 100 of the Code of Civil Procedure, 1908 (in short the ‘Code’). The High Court framed the following questions for adjudication :

(1) Whether the lower Courts were in error in holding that there is no specific pleading showing the readiness and willingness of the plaintiff to perform his part of the contract?

(2) Whether the lower appellate Court was in error in taking the view that the contract of sale is indivisible and that defendants 1 to 4 cannot convey their even 4/5th share?”

The High Court held that there was specific pleading as regards the readiness and willingness of the plaintiff to perform his part of the contract. It, however, did not record any finding so far as the second question is concerned. It accordingly allowed the second appeal.

5. Learned counsel for the appellant has submitted that in order to satisfy the requirement of Section 16(c) of the Specific Relief Act, 1963 (in short the ‘Act’) the plaintiff not only requires to plead that he is ready and willing to perform his part of the contract but also to prove that aspect. In the instant case no proof was adduced. On the contrary, the findings of fact recorded by the Trial Court and the First Appellate Court to the effect that the plaintiff had failed to establish that he was ready and willing to perform his part of the contract have been set aside without even formulating a question of law, which is impermissible. It was further submitted that the High Court has placed reliance on some of the discussions made by the Trial Court and the First Appellate Court completely ignoring the findings recorded.

6. Learned counsel for the respondents on the other hand submitted that the High Court has taken note of the factual position and

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2006 Supreme(SC) 109

Important PointSection 16(c) of Specific Relief Act mandates the plaintiff to aver in plaint and establish as fact by evidence that he has always been ready and willing to perform his part of contract.

Cases Referred (7)

Important Point
Section 16(c) of Specific Relief Act mandates the plaintiff to aver in plaint and establish as fact by evidence that he has always been ready and willing to perform his part of contract.