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CASE NO.:

Appeal (civil) 4656 of 2007

PETITIONER:

Sita Ram & Ors

RESPONDENT:

Radhey Shyam

DATE OF JUDGMENT: 05/10/2007

BENCH:

Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT:

J U D G M E N T

CIVIL APPEAL NO. 4656 OF 2007

(Arising out of SLP (C) No.26448 of 2005)

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the order passed by a

learned Single Judge of the Jaipur Bench of Rajasthan High

Court dismissing the Second Appeal filed by the plaintiffs-

appellants. It is to be noted that the trial court decreed the

suit, which was one for specific performance of a contract

while the first appellate court set aside the decree. The

appellate court dismissed the suit on the ground that the

pleadings were not in accordance with the provisions of

Section 16(c) of the Specific Relief Act, 1963 (in short the ’Act’).

Learned Single Judge dismissed the Second Appeal holding

that no substantial question of law was involved as essentially

the conclusions of the first appellate court were factual

findings.

3. In support of the appeal, learned counsel for the

appellants submitted that in the plaint, in essence, specific

statement had been made about the fact that the plaintiffs had

mentioned to the defendant that they were ready and willing to

do such effort or act as would be necessary to be done by the

plaintiffs for performance of the contract. It was, therefore,

submitted that the first appellate court and the High Court

were not justified in holding that the requirements of Section

16(c) of the Act were not met.

4. Per contra, learned counsel for the respondent submitted

that the bare reading of the plaint itself indicated that Khasra

No. 866 was later on added and, therefore, the question of the

plaintiffs being ready and willing to perform the contract as

originally stood, does not really arise. Specific reference was

made to the pleadings to the effect that though the documents

were executed on 1.9.1977, the same was complete and on

that basis the sale has been concluded. It is submitted that if

the sale was concluded as pleaded, the question of filing the

suit for specific contract does not arise. Moreover, the

plaintiffs themselves had stated that Khasra No.866 was

added later on.

5. In order to appreciate the rival submissions, Section 16(c)

needs to be quoted along with the Explanations. The same

reads as follows:

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"16. Personal bars to relief:

(a) .........

(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 of the performance of which

has been prevented or waived by the

defendant.

Explanation- For the purpose of clause (c)-

(i) where a contract involves 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 accordingly to its true construction."

6. In Ardeshir H. Mama v. Flora Sassoon (AIR 1928 PC

208), the Privy Council observed that where the injured party

sued at law for a breach, going to the root of the contract, he

thereby elected to treat the contract as at an end himself and

as discharged from the obligations. No further performance by

him was either contemplated or had to be tendered. In a suit

for specific performance on the other hand, he treated and was

required by the Court to treat the contract as still subsisting.

He had in that suit to allege, and if the fact was traversed, he

was required to prove a continuous readiness and willingness

from the date of the contract to the time of the hearing, to