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CASE NO.:

Appeal (civil) 1501 of 2000

PETITIONER:

H.P. Pyarejan

RESPONDENT:

Dasappa(dead) by L.Rs. & Ors.

DATE OF JUDGMENT: 06/02/2006

BENCH:

ARIJIT PASAYAT & TARUN CHATTERJEE

JUDGMENT:

J U D G M E N T

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.

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.

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.

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

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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.

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.

Learned counsel for the respondents on the other hand

submitted that the High Court has taken note of the factual

position and on a proper analysis of the judgments of the Trial

Court and the First Appellate Court recorded a finding that

requirement of Section 16(c) of the Act was fulfilled.

The Trial Court recorded the following findings:

"Therefore, the evidence of the plaintiff is

an utter lie and he has not offered any

amount as alleged on 22.11.1977.

Even conceding for a moment that the

plaintiff offered to pay Rs.11,000/- on

22.11.977 and the first defendant has agreed

to execute the sale deed only on 30.11.1977,

the point is, whether the plaintiff again

offered to pay the amount on 30.11.1977.

Admittedly according to P.W.2, the plaintiff

has not offered to pay the defendants 2 to 5.

So far as defendants 2 to 5 are concerned, the

plaintiff has not performed his part of the

contract by offering to pay the balance of the

amount to them. Secondly, there is no

evidence to show whether the plaintiff has

offered to pay the said amount again on

30.11.1977. So far as the plaintiff himself is

concerned, he has clearly admitted in his

evidence that only once i.e. about 3 or 4 days

prior to the expiry of three months period

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from the date of agreement he has offered to

pay to the defendants and thereafter he has

never offered the amount. This clearly shows

that the plaintiff has never offered the amount

on 30.11.1977."

These conclusions were affirmed by the First Appellate

Court.

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

needs to be quoted along with the Explanations. The same

reads as follows:

"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."

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

perform the contract on his part. Failure to make good that

averment brings with it and leads to the inevitable dismissal of

the suit. The observations were cited with approval in Prem

Raj v. The D.L.F. Housing and Construction (Private) Ltd. and

Anr. (AIR 1968 SC 1355).

The requirements to be fulfilled for bringing in

compliance of the Section 16(c) of the Act have been delineated

by this Court in several judgments. While examining the

requirement of Section 16(c) this Court in Syed Dastagir v.

T.R. Gopalakrishna Settty (1999 (6) SCC 337) noted as follows:

"So the whole gamut of the issue raised is, how

to construe a plea specially with reference to

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Section 16(c) and what are the obligations

which the plaintiff has to comply with in

reference to his plea and whether the plea of

the plaintiff could not be construed to conform

to the requirement of the aforesaid section, or

does this section require specific words to be

pleaded that he has performed or has always

been ready and is willing to perform his part of

the contract. In construing a plea in any

pleading, courts must keep in mind that a plea

is not an expression of art and science but an

expression through words to place fact and law

of one's case for a relief. Such an expression

may be pointed, precise, sometimes vague but

still it could be gathered what he wants to

convey through only by reading the whole

pleading, depending on the person drafting a

plea. In India most of the pleas are drafted by

counsel hence the aforesaid difference of pleas

which inevitably differ from one to the other.

Thus, to gather true spirit behind a plea it

should be read as a whole. This does not

distract one from performing his obligations as

required under a statute. But to test whether

he has performed his obligations, one has to

see the pith and substance of a plea. Where a

statute requires any fact to be pleaded then

that has to be pleaded may be in any form. The

same plea may be stated by different persons

through different words; then how could it be

constricted to be only in any particular

nomenclature or word. Unless a statute

specifically requires a plea to be in any

particular form, it can be in any form. No

specific phraseology or language is required to

take such a plea. The language in Section 16(c)

does not require any specific phraseology but

only that the plaintiff must aver that he has

performed or has always been and is willing to

perform his part of the contract. So the

compliance of "readiness and willingness" has

to be in spirit and substance and not in letter

and form. So to insist for a mechanical

production of the exact words of a statute is to

insist for the form rather than the essence. So

the absence of form cannot dissolve an essence

if already pleaded."

Again in Motilal Jain v. Ramdasi Devi (Smt.) and Ors.

(2000 (6) SCC 420) it was noted as follows:

"7. The other contention which found favour

with the High Court, is that plaint averments

do not show that the plaintiff was ready and

willing to perform his part of the contract and

at any rate there is no evidence on record to

prove it. Mr. Choudhary developed that

contention placing reliance on the decision in

Varghese case ((1969) 2 SCC 539). In that

case, the plaintiff pleaded an oral contract for

sale of the suit property. The defendant denied

the alleged oral agreement and pleaded a

different agreement in regard to which the

plaintiff neither amended his plaint nor filed

subsequent pleading and it was in that context

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that this Court pointed out that the pleading

in specific performance should conform to

Forms 47 and 48 of the First Schedule of the

Code of Civil Procedure. That view was

followed in Abdul Khader case (1989) 4 SCC

313).

8. However, a different note was struck by

this Court in Chandiok case ((1970) 3 SCC

140). In that case 'A' agreed to purchase from

'R' a leasehold plot. 'R' was not having lease of

the land in his favour from the Government

nor was he in possession of the same. 'R',

however, received earnest money pursuant to

the agreement for sale which provided that the

balance of consideration would be paid within

a month at the time of the execution of the

registered sale deed. Under the agreement 'R'

was under obligation to obtain permission and

sanction from the Government before the

transfer of leasehold plot. 'R' did not take any

steps to apply for the sanction from the

Government. 'A' filed the suit for specific

performance of the contract for sale. One of the

contentions of 'R' was that 'A' was not ready

and willing to perform his part of the contract.

This Court observed that readiness and

willingness could not be treated as a

straitjacket formula and that had to be

determined from the entirety of facts and

circumstances relevant to the intention and

conduct of the party concerned. It was held

that in the absence of any material to show

that 'A' at any stage was not ready and willing

to perform his part of the contract or that he

did not have the necessary funds for payment

when the sale deed would be executed after the

sanction was obtained, 'A' was entitled to a

decree for specific performance of contract.

9. That decision was relied upon by a three-

Judge Bench of this Court in Syed Dastagir

case ((1999) 6 SCC 337) wherein it was held

that in construing a plea in any pleading,

courts must keep in mind that a plea is not an

expression of art and science but an

expression through words to place fact and law

of one's case for a relief. It is pointed out that

in India most of the pleas are drafted by

counsel and hence they inevitably differ from

one to the other; thus, to gather the true spirit

behind a plea it should be read as a whole and

to test whether the plaintiff has performed his

obligations, one has to see the pith and

substance of the plea. It was observed :

"Unless a statute specifically

requires a plea to be in any

particular form, it can be in any

form. No specific phraseology or

language is required to take such a

plea. The language in Section 16(c)

of the Specific Relief Act, 1963 does

not require any specific phraseology

but only that the plaintiff must aver

that he has performed or has always

been and is willing to perform his

part of the contract. So the

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compliance of 'readiness and

willingness' has to be in spirit and

substance and not in letter and

form."

It is thus clear that an averment of readiness

and willingness in the plaint is not a

mathematical formula which should only be in

specific words. If the averments in the plaint

as a whole do clearly indicate the readiness

and willingness of the plaintiff to fulfil his part

of the obligations under the contract which is

the subject-matter of the suit, the fact that

they are differently worded will not militate

against the readiness and willingness of the

plaintiff in a suit for specific performance of

contract for sale."

Lord Campbell in Cork v. Ambergate etc. and Railway Co.

(1851) 117 ER 1229 observed that in common sense the

meaning of such an averment of readiness and willingness

must be that the non-completion of the contract was not the

fault of the plaintiffs, and that they were disposed and able to

complete it had it not been renounced by the defendant.

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

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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.

Looked at from any angle the judgment of the High Court

is vulnerable and needs to be set aside and it is so directed.

The appeal is allowed without any order as to costs.