IN THE HIGH COURT OF JUDICATURE AT PATNA

Second Appeal No.583 of 1988

======================================================

1.1.Nawal Kishore Sharma Son of Late Kedar Chaudhary Resident of Village-

Suratpur, P.O. and P.S.- Mahua, District- Vaishali.

1.2.Subodh Kumar Sharma Son of Late Kedar Chaudhary an imbecile under

guardianship of his brother Pramod Kumar Arya, Resident of Village-

Suratpur, P.O. and P.S.- Mahua, District- Vaishali.

1.3.Pramod Kumar Arya Son of Late Kedar Chaudhary Resident of Village-

Suratpur, P.O. and P.S.- Mahua, District- Vaishali.

1.4.Binod Kumar Sharma Son of Late Kedar Chaudhary Resident of Village-

Suratpur, P.O. and P.S.- Mahua, District- Vaishali.

1.5.Kumud Kumar Sharma Son of Late Kedar Chaudhary Resident of Village-

Suratpur, P.O. and P.S.- Mahua, District- Vaishali.

1.6.Munna Devi D/o Late Kedar Chaudhary and W/o Late Daya Shankar

Sharma Resident of Village and P.O. Dumri, P.S. Sarai, District- Vaishali.

... ... Defendant No.1/Appellant/Appellants

Versus

1.1.Mostt. Raj Kumari Devi W/o Late Bishwa Nath Rai Resident of Village-

Sadapur Mahua, Tola Suknat, Pargana- Bisara, P.O. and P.S. Mahua, District-

Vaishali.

1.2.Sri Birendra Rai Son of Late Bishwa Nath Rai Resident of Village- Sadapur

Mahua, Tola Suknat, Pargana- Bisara, P.O. and P.S. Mahua, District-

Vaishali.

1.3.Sri Ranjeet Rai Son of Late Bishwa Nath Rai Resident of Village- Sadapur

Mahua, Tola Suknat, Pargana- Bisara, P.O. and P.S. Mahua, District-

Vaishali.

1.4.Mostt. Lal Pari Devi W/o Late Jai Prakash Rai Resident of Village-

Anwarpur, P.O. and P.S.- Hajipur, Distt- Vaishali.

1.5.Smt. Fulpari Devi W/o Shri Ashok Rai Resident of Village- Ijri Panapur,

Desri, P.O. and P.S.- Desri, Distt- Vaishali.

1.6.Smt. Sanjeeta Devi W/o Shri Raghvendra Rai Resident of Village- Mathana,

P.O.- Mathana, Distt- Vaishali.

1.7.Smt. Baby Devi W/o Shri Din Dayal Rai Resident of Village- Sahpur, P.O.-

Bhen Borha, P.S.- Mahua, District- Vaishali.

….Plaintiff/Respondents 1

st

Party/Respondents 1

st

Set

2.1.Ajit Kumar S/o Late Shambhu Choudhary Resident of Village- Suratpur,

P.O. and P.S.- Mahua, District- Vaishali.

2.2.Ranjeet Kumar S/o Late Shambhu Choudhary Resident of Village- Suratpur,

P.O. and P.S.- Mahua, District- Vaishali.

2.3.Anju Devi D/o Late Shambhu Choudhary Resident of Village- Suratpur, P.O.

Patna High Court SA No.583 of 1988 dt.25-10-2024

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and P.S.- Mahua, District- Vaishali.

... ... Defendant No.2/Respondents 2

nd

Party/Respondents 2

nd

Set

======================================================

Appearance :

For the Appellant/s: Mr. J.K. Verma, Advocate

Mr. Suraj Narain Yadav, Advocate

For the Respondent/s: Mr. Naresh Ch.Verma, Advocate

======================================================

CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN

ORAL JUDGMENT

Date : 25-10-2024

The present second appeal has been filed against

the Judgment and Decree dated 30.05.1988 and 17.06.1988

respectively, passed by Sri S.N. Pathak, 1

st

Additional District

Judge, Vaishali at Hajipur, in Title Appeal No.28 of 1987

affirming the Judgment and Decree dated 02.05.1987 and

15.05.1987 respectively, passed by Sri S.N. Sukla, Sub-Judge,

Vaishali at Hajipur, in Title Suit No.48 of 1983. The Defendant

No.1 of Title Suit No.48 of 1983 was the appellant of Title

Appeal No.28 of 1987 and he is also the appellant in Second

Appeal No.583 of 1988. The plaintiff of Title Suit No.48 of

1983 is respondent First Party of Title Appeal No. 28 of 1987

and his heirs and legal representatives 1.1 to 1.7 are the

respondent first set in this appeal. Defendant No.2 Shambhu

Choudhary of Title Suit No.48 of 1983 is respondent Second

Party of Title Appeal No.28 of 1987 and his heirs and legal

representatives from 2.1 to 2.3 are the respondent second set in

Patna High Court SA No.583 of 1988 dt.25-10-2024

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the present Second Appeal No.583 of 1988.

2. It is a second appeal against the Judgment of

affirmance. The Title Suit No.48 of 1983 was filed for grant of

relief of specific performance of a contract for sale

(Mahadanama) dated 15.10.1982 (Ext-1). The said Title Suit

was Decreed on contest against Defendant No.1 and ex-parte as

against Defendant No.2 but without costs. The plaintiff was also

directed to deposit Rs.4,000/- (Four thousand only) within one

month from the date of Judgment and Defendant was directed to

withdraw this money and to execute a sale deed in favour of the

plaintiff within two months from the date of deposit of

remainder consideration money. It was also ordered in the

Judgment that if the plaintiff fails to deposit the remainder

consideration money within the above mentioned time limit, the

Suit shall ipso-facto stand dismissed. It has also been ordered

that in case the remainder consideration is deposited and the

defendants do not execute a sale deed, as directed above, the

plaintiff shall be entitled to get a sale deed executed through the

assistance of the Court.

3. In the Title Appeal it has been found by the

Appellate Court that the appellant of the Title Appeal has not

been able to make out a case for interference with the lower

Patna High Court SA No.583 of 1988 dt.25-10-2024

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Courts’ Judgment and Decree and, therefore, the Title Appeal is

accordingly dismissed on contest with costs at the contested

scale. Thereafter, the Judgment and Decree of the Lower Court

as passed and prepared on 02.05.1987 and 15.05.1987

respectively, in Title Suit No.48 of 1983, was confirmed.

4. The present Second Appeal has been instituted

before this Hon’ble Court on 28.11.1988. The Substantial

Question of Law has been framed vide order No.8 dated

04.01.1990, which is as follows:-

“Whether the Judgment and

Decree of the Courts’ below are

valid when DefendantNo.2 is

lunatic and no guardianship was

appointed though this fact was

brought to the notice of the

Court?”

5. During course of final argument, vide order

No.26 dated 07.05.2024, Additional Substantial Questions of

Law were framed considering the law laid down under Sections

100(4) and 100(5) of the Code of Civil Procedure, 1908 (Act

No.5 of 1908) as well as on the basis of Judgment of Nazir

Mohammad Vs. J.K. Kamala & Others reported in 2020(5)

BLJ SC 492- para-37, which was followed in the case of P.

Patna High Court SA No.583 of 1988 dt.25-10-2024

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Kishore Kumar Vs. Vittal K. Patkar reported in 2024 (1) BLJ

SC 37. These Substantial Questions of Law are as follows:-

“I. Whether the Courts below

have not acted perversely in

Decreeing a suit for specific

performance of contract,

mechanically, in absence of proof

of both aspect of readiness and

willingness on the part of the

plaintiffs to perform their part of

contract which is an essential

requirement of law?

II. Whether the Judgment of the

Courts below shall be sustainable

in view of the discarding of

supplementary/ additional written

statement dated 04.04.1987 of

Defendant No.1/ Appellant/

Appellant which resulted into

shifting of burden on the Plaintiff

to prove that the alleged

agreement of sale was genuine

and legally enforceable/not

fraudulent, when the purported

execution of the alleged

agreement was of an old, aged

and illiterate person?”

6. As such, with a view to decide the Second

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Appeal the parties to the appeal had argued on the respective

Substantial Question of Law in the light of principles laid down

under Section 100 of the Code of Civil Procedure, 1908 (Act 5

of 1908).

7. Learned Counsel for the appellants submits

that with a view to advance the argument on Substantial

Questions of Law, it is necessary to explain the brief factual

matrix of this appeal. He submits that Title Suit had been filed

for Specific Performance of contract for sale, for which a

Mahdanama was executed on 15.10.1982, marked as Ext-1. He

further submits that the said Mahdanama was executed by the

father of DefendantNos.1 and 2 in favour of the Plaintiff of the

suit. The consideration money was Rs.19,000/- (Nineteen

thousand only) with the earnest money being Rs.15,000/-

(Fifteen thousand only). The amount which had to be paid at

the time of execution of sale deed was Rs.4,000/- (Four

thousand only). Learned Counsel for the appellants further

submits that the name of father of the Defendant Nos.1 and 2

was Maujelal Choudhary, who had executed two deeds on the

said date i.e., 15

th

October, 1982. The first deed that he

executed was the deed of agreement to sell (the popular name of

the said deed is Mahdanama) marked as Ext-1, whereas another

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deed that he executed was deed of absolute sale for other

property amounting to Rs.3600/-, which is marked as Ext-2. He

further submits that as per the case of plaintiff, the said Maujelal

Chaudhary died on 25

th

December, 1982. Thereafter, the

plaintiff began consulting defendants for execution of sale-

deed as per Mahdanama. In this regard, two notices, i.e., notice

dated 14

th

January, 1983 (Ext-3) and notice dated 18

th

March,

1983 (Ext-3/A) were sent to defendants, but they did not come

forward to execute the sale-deed. Thereafter, the suit was filed

on 16

th

of April, 1983 by the plaintiff seeking relief of Specific

Performance of Contract.

8. In the Suit, paragraph no.4 of the plaint

narrates the statement with regard to readiness and willingness.

Paragraph 6 of the plaint narrates the statement with regard to

payment of Rs.15,000/- and dues of Rs.4,000/-. Paragraph-7

narrates about statement with regard to payment. Exhibits-3 and

3-A are the notices dated 14

th

of January, 1983 and 18

th

of

March, 1983 respectively.

9. Learned Counsel for the Appellants submits

that in paragraph 12 of the Trial Court Judgment, the issue of

readiness and willingness had been decided in favour of the

plaintiff on the basis of Exhibits-3 and 3-A read with PW1, PW

Patna High Court SA No.583 of 1988 dt.25-10-2024

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10 and PW 12. On the basis of said Judgment passed by Trial

Court, Decree has also been prepared. Counsel further submits

that being aggrieved and dissatisfied with the said Judgment and

Decree, Title Appeal No.28 of 1987 had been preferred by

Defendant No.1... Appellant. The said Title Appeal was

dismissed on 30

th

May, 1988 and Decree was prepared on 1

st

of

September, 1988. Counsel further submits that the finding of

Appellate Court clearly indicates at paragraph 9/page 14 of the

Appellate Court Judgment that it has not described its own

findings; rather the Appellate Court completely relied on what

Trial Court has observed. Counsel for the appellant further

submits that the case has been filed by the plaintiff and the

genesis of this case is Section 16(c) of the Specific Relief Act,

1963, which requires that the readiness and willingness have to

be proved. According to him, the readiness construes the

financial capacity and the willingness construes the conduct.

10. Learned Counsel for the appellants firstly

argued on the Second Additional Substantial Question of Law

that the proof of both aspects of readiness and willingness is

heavily on the part of the plaintiff to perform their part of

contract and without absence of such essential requirement,

granting Decree of Specific Performance of Contract would be

Patna High Court SA No.583 of 1988 dt.25-10-2024

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absolutely illegal and not sustainable in the eye of law.

11. With a view to prove the Substantial

Questions of Law on the point of readiness and willingness,

Counsel for the appellants relied firstly on the case of J.P.

Builders Vs. A Ramadas and Anr. reported in 2011 (1) SCC

429 read with Section 16(c) of the Specific Relief Act, 1963 and

submits that paragraph 20-27 are very much clear that readiness

construes financial capacity and willingness construes conduct,

both of which are lacking in the present case. He further submits

that the above mentioned Judgment relied on other important

judgments, namely, N.P. Thirugnanam (D) by LRs. Vs. Dr. R

Jagan Mohan Rao & Ors. reported in (1995) 5 SCC 115, the

case of P. D’souza Vs. Shondrilo Naidu reported in (2004) 6

SCC 649, the case of R.C. Chandiok & Anr. Vs. Chuni Lal

Sabharwal & Ors. reported in (1970) 3 SCC 140. He further

submits that the case of U.N. Krishnamurthy (since deceased)

through LRs. Vs. A.M. Krishnamurthy reported in [(2023) 11

SCC 775] 2022 SCC Online SC 840 are also in his favour. He

further relied in case of C.S. Venkatesh Vs. A.S.C. (D) by LRs.

& Ors. reported in 2020 (2) BLJ 156- SC and also on Judgment

of Smt. Sundari Devi Vs. Deo Narayan Prasad reported in

(2012) 3 PLJR 36 and submits that the finding of readiness and

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willingness has not been proved in this case where onus was on

the plaintiff to prove, and Appellate Court had to describe its

own finding on the point of readiness and willingness, instead

of the Appellate Court has heavily relied on the findings of the

Trial Court. He further submits that since there is no finding of

Appellate Court of his own therefore the Appellate Court’s

Judgment and Decree is not sustainable in law and thus, fit to be

set aside.

12.On the Second Additional Substantial

Question of Law the Counsel for the appellants submits that due

to the rejection of Supplementary Written Statement dated 4

th

of

April, 1987 of Defendant of the Title Suit (present appellant),

the burden to prove the alleged agreement of sale as genuine,

legally enforceable and not fraudulent which should have

ideally shifted at Plaintiff, particularly when the purported

execution of alleged agreement was of an old aged and an

illiterate person who died on 15

th

of December, 1982 merely two

months from when agreement was executed on 15

th

October,

1982, did not shift. Counsel states that additional written

statement, which was filed, specifically pleaded that the

agreement for sale has been obtained by committing fraud by

the executant on plain paper, which was subsequently converted

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into Mahdanama. Counsel for the appellants further submits

that it is true that additional written statement was rejected by

the Original Court, but it was not challenged before Higher

Court, and, therefore, it is permissible to be challenged in title

appeal, particularly in the light of the decision made in case of

Achal Misra Vs. Rama Shanker Singh & Ors. reported in

(2005) 5 SCC 531 of paragraph 11 and also in case of Korus

(India) Limited Vs. Bank Of Maharashtra & Ors. reported in

(2009) 17 SCC 674 of paragraph 6 and also in case of Krishna

Mohan Kul & Anr. Vs. Pratima Maity & Ors. decided in AIR

2003 SC 4351 of paragraphs 16 and 17. Counsel further submits

that since the supplementary written statement was rejected by

the Trial Court, against which no further appeal or revision had

been preferred, therefore, non-consideration of Supplementary

Written Statement has to be considered in accordance with law,

which has not been properly decided by the Appellate Court.

Hence, on this ground also, the present Title Appeal is fit to be

dismissed.

On Substantial Questions of Law i.e., whether

the Judgment and Decree of the Courts below are valid when

Defendant No.2 is juvenile and no guardianship was appointed

though this fact was brought to the notice of the Court? Counsel

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further submits that the pleading of Defendant of the Suit is

specific that Defendant No.2 is lunatic and this aspect has also

not been considered by the Appellate Court and it is due to this

reason also, the Judgment and Decree passed in appeal is fit to

be set aside.

13. Learned Counsel for the appellants further

submits that all the three Substantial Questions of Law i.e.,

finding of readiness and willingness, non-consideration of

Additional Written Statement at the appellate level as well as

passing order against lunatic without his proper representation

completely make the appellate Judgment and Decree fit to be set

aside and he submits that matter be remanded back for fresh

consideration at all, and particularly, on the ground of failure of

ingredients of readiness and willingness particularly in the light

of Section 16(c) of the Specific Relief Act, 1963 read with the

Judgment mentioned above, it may be conclusively decided that

the plaintiff had failed to prove the basic ingredients of

readiness and willingness in this case and it is due to this reason,

both the appellate as well as original Judgment and Decree are

fit to be set aside.

14. Learned Counsel for the respondents, on the

other hand, opposes the argument of the Counsel for the

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appellants on all the three Substantial Questions of Law. He

argued on the point of readiness and willingness and submits

that ingredients of Section 16(c) of the Specific Relief Act,

1963, which is the genesis of this litigation have been present in

this litigation by way of pleadings made in paragraph-7 of the

plaint, statement of paragraph-5 of notice i.e. Exhibit-3 dated

14.01.1983, paragraphs-3 and 5 of Exhibit-3/A-legal notice

dated 18.03.1983 and subsequently, supported by the evidence

of PW-10 and PW-12. Counsel submits that the content of

readiness and willingness, as mentioned in the statue, is present

in the pleadings and proved by oral and documentary evidence

both. In support of his argument, Counsel for the respondents

heavily relied on a Judgment in the case of Biswanath Ghosh

(dead) by Legal Representatives & Ors. Vs. Gobinda Ghosh &

Ors. reported in AIR 2014 SC 1582. Counsel further relied on a

Judgment in the case of Basavaraj Vs. Padmavathi & Anr.

reported in (2023) 4 SCC 239 (Civil Appeal Nos.8962-

8963/2022), whose paragraphs-14 and 15 are very much

relevant for their case. Counsel further submits that the

Judgment of J.P. Builders & Anr. Vs. A. Ramadas & Anr.

(supra) is not applicable in the present case due to the reason

that price of the property was Rs.4 crores and advance money

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was paid only Rs.1 lakh, whereas, in the present case, the price

money was Rs.20,000/-, advance money paid was Rs.16,000/-

and rest amount has been paid is just Rs.4,000/-. Therefore, the

principles laid down in J.P. Builders & Anr. Vs. A. Ramadas &

Anr. (supra) and in the case of U.N. Krishnamurthy Vs. A.M.

Krishnamurthy (supra) or C.S. Venkatesh Vs. A.S.C. Murty

(D) by L.Rs. & Ors. (supra) are not applicable in the present

facts and circumstances of the case.

15. Learned Counsel for the respondents further

submits that the latest Judgment i.e. case of Basavaraj Vs.

Padmavathi & Anr. (supra) shall only apply in the present facts

and circumstances of the case by which it becomes crystal clear

with the pleadings and evidence that the plaintiff has readiness

and willingness both to purchase the property i.e., to say that

there is presence of financial capacity as well as conduct.

16. With a view to decide second Additional

Substantial Question of Law, learned Counsel for the

respondents submits that additional written statement was

rejected, no further appeal was preferred and on the ground of

non-consideration of additional written statement at the stage of

title appeal, the judgment/appeal cannot be dismissed.

17. Learned Counsel for the respondents further

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submits that in the present appeal, there is categorical finding in

the Title Appeal Judgment mentioned in paragraph-7 of the

additional/supplementary written statement and, hence, on this

ground, the Appellate Judgment or Decree may not be set aside.

So far as the Substantial Question of Law based on the point of

lunacy is concerned, Counsel for the respondents submits that

this point has been mentioned in paragraph-22 of the written

statement filed by the present appellants in the Title Suit. But on

the point of lunacy, he has not adduced any evidence and,

therefore, he has no locus to raise this point directly at the level

of Second Appeal as he himself opted not to pursue this point at

any level. Counsel further submits that at the appellate stage, it

is the present appellants who filed appeal, he has made

Defendantno.2 his brother as respondent no.2. But at the

appellate level also, he has neither pleaded this point nor raised

this point during title appeal and, hence, in this view of the

matter, he has no locus to challenge the point of lunacy at the

level of Second Appeal directly. Counsel for the respondents

submits that from the record, it transpires that the appellant is

brother of the respondent second set and when he himself not

opted to raise this point either at the level of Original Court or at

the level of Appellate Court then being the own brother, this

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point may not be made available to him with a view to set aside

the order passed in appeal as it is defendant 1

st

set-appellant-

appellant had represented the original defendant No.2 and at the

level of Second Appeal, he may not be granted any benefit to his

own fault, if any.

18. With a view to decide those Substantial

Questions of Law, it is necessary to quote the relevant

provisions of Section 16 of the Specific Relief Act, 1963 as well

as relevant paragraphs of those judgments on which the Counsel

for the appellants and Counsel for the respondents are heavily

relied.

19. Section 16 of the Specific Relief Act, 1963

states as follows:-

“16. Personal bars to relief:-

Specific performance of a contract

cannot be enforced in favour of a

person-

(a) who has obtained substituted

performance of contract under

section 20;or

(b) who has become incapable of

performing, or violates any

essential term of, the contract that

on his part remains to be performed,

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or acts in fraud of the contract, or

wilfully acts at variance with, or in

subversion of, the relation intended

to be established by the contract; or

(c) who fails to 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

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 prove

performance of, or readiness and

willingness to perform, the contract

according to its true construction.”

20. Learned Counsel for the Appellants relied on

the Judgment of J.P. Builders Vs. A Ramadas and Anr. (supra),

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whose paragraphs 21 to 27 states as follows:-

“21.Among the three clauses,

we are more concerned about clause (c).

“Readiness and willingness” is enshrined in

clause (c) which was not present in the old

Act of 1877. However, it was later inserted

with the recommendations of the 9th Law

Commission's Report. This clause provides

that the person seeking specific performance

must prove that he has performed or has

been ready and willing to perform the

essential terms of the contract which are to

be performed by him.

22. The words “ready” and

“willing” imply that the person was prepared

to carry out the terms of the contract. The

distinction between “readiness” and

“willingness” is that the former refers to

financial capacity and the latter to the

conduct of the plaintiff wanting

performance. Generally, readiness is backed

by willingness.

23. In N.P. Thirugnanam v.

Dr. R. Jagan Mohan Rao [(1995) 5 SCC 115]

at SCC para 5, this Court held: (SCC pp.

117-18)

“5. … Section 16(c) of the

Act envisages that the plaintiff must plead

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and prove that he had 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 those terms

the performance of which has been

prevented or waived by the defendant. The

continuous readiness and willingness on the

part of the plaintiff is a condition precedent

to grant the relief of specific performance.

This circumstance is material and relevant

and is required to be considered by the court

while granting or refusing to grant the relief.

If the plaintiff fails to either aver or prove the

same, he must fail. To adjudge whether the

plaintiff is ready and willing to perform his

part of the contract, the court must take into

consideration the conduct of the plaintiff

prior and subsequent to the filing of the suit

along with other attending circumstances.

The amount of consideration which he has to

pay to the defendant must of necessity be

proved to be available. Right from the date

of the execution till date of the decree he

must prove that he is ready and has always

been willing to perform his part of the

contract. As stated, the factum of his

readiness and willingness to perform his part

of the contract is to be adjudged with

reference to the conduct of the party and the

attending circumstances. The court may infer

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from the facts and circumstances whether the

plaintiff was ready and was always ready and

willing to perform his part of the contract.”

24. In P. D'Souza v. Shondrilo

Naidu [(2004) 6 SCC 649] this Court

observed: (SCC p. 654, paras 19 and 21)

“19. It is indisputable that in a

suit for specific performance of contract the

plaintiff must establish his readiness and

willingness to perform his part of contract.

The question as to whether the onus was

discharged by the plaintiff or not will depend

upon the facts and circumstances of each

case. No straitjacket formula can be laid

down in this behalf. …

***

21. … The readiness and

willingness on the part of the plaintiff to

perform his part of contract would also

depend upon the question as to whether the

defendant did everything which was required

of him to be done in terms of the agreement

for sale.”

25. Section 16(c) of the

Specific Relief Act, 1963 mandates

“readiness and willingness” on the part of the

plaintiff and it is a condition precedent for

obtaining relief of grant of specific

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performance. It is also clear that in a suit for

specific performance, the plaintiff must

allege and prove a continuous “readiness and

willingness” to perform the contract on his

part from the date of the contract. The onus

is on the plaintiff.

26. It has been rightly

considered by this Court in R.C. Chandiok v.

Chuni Lal Sabharwal [(1970) 3 SCC 140]

that “readiness and willingness” cannot be

treated as a straitjacket formula. This has to

be determined from the entirety of the facts

and circumstances relevant to the intention

and conduct of the party concerned.

27. It is settled law that even

in the absence of specific plea by the

opposite party, it is the mandate of the statute

that the plaintiff has to comply with Section

16( c ) of the Specific Relief Act and when

there is non-compliance with this statutory

mandate, the court is not bound to grant

specific performance and is left with no other

alternative but to dismiss the suit. It is also

clear that readiness to perform must be

established throughout the relevant points of

time. “Readiness and willingness” to

perform the part of the contract has to be

determined/ascertained from the conduct of

the parties.”

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21. Counsel further relied on the Judgment of

N.P. Thirugnanam (D) by LRs. Vs. Dr. R Jagan Mohan Rao &

Ors. (supra) whose 5 reads as follows:-

“5. It is settled law that

remedy for specific performance is an

equitable remedy and is in the discretion of

the court, which discretion requires to be

exercised according to settled principles of

law and not arbitrarily as adumbrated under

Section 20 of the Specific Relief Act, 1963

(for short “the Act”). Under Section 20, the

court is not bound to grant the relief just

because there was a valid agreement of sale.

Section 16(c) of the Act envisages that

plaintiff must plead and prove that he had

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 those terms the performance of

which has been prevented or waived by the

defendant. The continuous readiness and

willingness on the part of the plaintiff is a

condition precedent to grant the relief of

specific performance. This circumstance is

material and relevant and is required to be

considered by the court while granting or

refusing to grant the relief. If the plaintiff

fails to either aver or prove the same, he

must fail. To adjudge whether the plaintiff is

Patna High Court SA No.583 of 1988 dt.25-10-2024

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ready and willing to perform his part of the

contract, the court must take into

consideration the conduct of the plaintiff

prior and subsequent to the filing of the suit

along with other attending circumstances.

The amount of consideration which he has to

pay to the defendant must of necessity be

proved to be available. Right from the date

of the execution till date of the decree he

must prove that he is ready and has always

been willing to perform his part of the

contract. As stated, the factum of his

readiness and willingness to perform his

part of the contract is to be adjudged with

reference to the conduct of the party and the

attending circumstances. The court may

infer from the facts and circumstances

whether the plaintiff was ready and was

always ready and willing to perform his part

of the contract.”

22. Counsel further relied on the Judgment of P.

D’souza Vs. Shondrilo Naidu (supra) whose paragraph 24

states as follows:-

“24. In August 1981 the

defendant accepted a sum of Rs 20,000

from the plaintiff. The contention raised

on behalf of the appellant to the effect

Patna High Court SA No.583 of 1988 dt.25-10-2024

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that the plaintiff has failed to show her

readiness and willingness to perform her

part of contract by 5-12-1978 is stated to

be rejected inasmuch as the defendant

himself had revived the contract at a

later stage. He, as would appear from

the findings recorded by the High Court,

even sought for extension of time for

registering the sale deed till 31-12-1981.

It is, therefore, too late in the day for the

defendant now to contend that it was

obligatory on the part of the plaintiff to

show readiness and willingness as far

back as 5-12-1978. ”

23. Counsel further relied on the Judgment of

U.N. Krishnamurthy (since deceased) through LRs. Vs. A.M.

Krishnamurthy (supra), whose paragraphs 24, 26, 27, and 28

state as follows:-

“24. To aver and prove

readiness and willingness to perform an

obligation to pay money, in terms of a

contract, the plaintiff would have to make

specific statements in the plaint and adduce

evidence to show availability of funds to

make payment in terms of the contract in

Patna High Court SA No.583 of 1988 dt.25-10-2024

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time. In other words, the plaintiff would have

to plead that the plaintiff had sufficient funds

or was in a position to raise funds in time to

discharge his obligation under the contract.

If the plaintiff does not have sufficient funds

with him to discharge his obligations in

terms of a contract, which requires payment

of money, the plaintiff would have to

specifically plead how the funds would be

available to him. To cite an example, the

plaintiff may aver and prove, by adducing

evidence, an arrangement with a financier

for disbursement of adequate funds for

timely compliance with the terms and

conditions of a contract involving payment

of money.

26. In Prem Raj v. DLF Housing Co.

Construction (P) Ltd. [Prem Raj v. DLF

Housing Co. Construction (P) Ltd., 1968

SCC OnLine SC 151 : AIR 1968 SC 1355]

cited by Mr Venugopal, this Court speaking

through Ramaswamy, J. held that : (AIR p.

1357, para 5)

“5. … It is well settled that in a suit for

specific performance the plaintiff should

allege that he is ready and willing to

perform his part of the contract.…”

and if the fact is traversed, he is required to

prove a continuous readiness and

Patna High Court SA No.583 of 1988 dt.25-10-2024

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willingness from the date of the contract to

the time of the hearing, to perform the

contract on his part. For such conclusion the

learned Judge relied upon the opinion of

Lord Blanesburgh, in Ardeshir Mama v.

Flora Sassoon [Ardeshir Mama v. Flora

Sassoon, 1928 SCC OnLine PC 43 : (1927-

28) 55 IA 360 at p. 372 : AIR 1928 PC 208] .

27. In DLF Housing Co. Construction (P)

Ltd. [Prem Raj v. DLF Housing Co.

Construction (P) Ltd., 1968 SCC OnLine SC

151 : AIR 1968 SC 1355] , in the absence of

an averment on the part of the plaintiff in the

plaint, that he was ready and willing to

perform his part of the contract, it was held

that the plaintiff had no cause of action so

far as the relief for specific performance was

concerned. In this case, of course, there is

an averment in the plaint that the

respondent-plaintiff was all along ready and

willing to perform his obligations under the

contract. The question is whether the

respondent-plaintiff had proved his

readiness and willingness to perform his

obligations under the contract.

28. In N.P. Thirugnanam v. R.

Jagan Mohan Rao [N.P. Thirugnanam v. R.

Jagan Mohan Rao, (1995) 5 SCC 115] , this

Court reiterated that Section 16(c) of the

Specific Relief Act, 1963 envisages that the

Patna High Court SA No.583 of 1988 dt.25-10-2024

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plaintiff must plead and prove that he had

performed or has always been ready and

willing to perform the essential terms of the

contract which were to be performed by him

other than those terms, the performance of

which has been prevented or waived by the

defendant. InN.P. Thirugnanam [N.P.

Thirugnanam v. R. Jagan Mohan Rao,

(1995) 5 SCC 115] this Court said that the

continuous readiness and willingness on the

part of the plaintiff was a condition

precedent for grant of the relief of specific

performance.”

24. Counsel further relied on the Judgment of

C.S. Venkatesh Vs. A.S.C. (D) by LRs. & Ors. (supra), whose

paragraphs 15 to 18 and 20:-

“15. The words 'ready and

willing' imply that the plaintiff was prepared

to carry out those parts of the contract to

their logical end so far as they depend upon

his performance. The continuous readiness

and willingness on the part of the plaintiff is

a condition precedent to grant the relief of

performance. If the plaintiff fails to either

aver or prove the same, he must fail. To

adjudge whether the plaintiff is ready and

willing to perform his part of contract, the

court must take into consideration the

Patna High Court SA No.583 of 1988 dt.25-10-2024

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conduct of the plaintiff prior, and subsequent

to the filing of the suit along with other

attending circumstances. The amount which

he has to pay the defendant must be of

necessity to be proved to be available. Right

from the date of the execution of the contract

till the date of decree, he must prove that he

is ready and willing to perform his part of

the contract. The court may infer from the

facts and circumstances whether the plaintiff

was ready and was always ready to perform

his contract.

16. In N.P. Thirugnanam

(Dead) by LRs. vs. Dr. R. Jagan Mohan Rao

and Others, 1995 (5) SCC 115, it was held

that continuous readiness and willingness on

the part of the plaintiff is a condition

precedent to grant of the relief of specific

performance. This circumstance is material

and relevant and is required to be considered

by the court while granting or refusing to

grant the relief. If the plaintiff fails to either

aver or prove the same, he must fail. To

adjudge whether the plaintiff is ready and

willing to perform his part of the contract,

the court must take into consideration the

conduct of the plaintiff prior to and

subsequent to the filing of the suit along with

other attending circumstances. The amount

of consideration which he has to pay to the

Patna High Court SA No.583 of 1988 dt.25-10-2024

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defendant must necessarily be proved to be

available.

17. In Pushparani S.

Sundaram and Others vs. Pauline

Manomani James (deceased) and Others

2002 (9) SCC 582, this Court has held that

inference of readiness and willingness could

be drawn from the conduct of the plaintiff

and the totality of circumstances in a

particular case. It was held thus:-

“So far these being a plea

that they were ready and willing to perform

their part of the contract is there in the

pleading, we have no hesitation to conclude,

that this by itself is not sufficient to hold that

the appellants were ready and willing in

terms of Section 16(c) of the Specific Relief

Act. This requires not only such plea but also

proof of the same. Now examining the first of

the two circumstances, how could mere filing

of this suit, after exemption was granted be a

circumstance about willingness or readiness

of the plaintiff. This at the most could be the

desire of the plaintiff to have this property. It

may be for such a desire this suit was filed

raising such a plea. But Section 16(c) of the

said Act makes it clear that mere plea is not

sufficient, it has to be proved."

18. Similar view has been taken by this Court in

Patna High Court SA No.583 of 1988 dt.25-10-2024

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Manjunath Anandappa URF Shivappa Hanasi

vs. Tammanasa and Others, 2003 (10) SCC 390

and Pukhraj D. Jain and Others vs. G.

Gopalakrishna, 2004 (7) SCC 251.

20. In the instant case, the

plaintiff has alleged that he was ready to pay

Rs.35,000/ to the defendants and called upon

them to execute the reconveyance deed.

However, in para 11 of the plaint it is

pleaded that the plaintiff was running

contract business wherein he suffered heavy

loss and as such he gave up the business. It

is also pleaded that at present the plaintiff

has no business or profession and has no

source of income. He has no property, either

movable or immovable. Mere plea that he is

ready to pay the consideration, without any

material to substantiate this plea, cannot be

accepted. It is not necessary for the plaintiff

to produce ready money, but it is mandatory

on his part to prove that he has the means to

generate the consideration amount. Except

the statement of PW-1, there is absolutely no

evidence to show that the plaintiff has the

means to make arrangements for payment of

consideration under the reconveyance

agreement.”

Patna High Court SA No.583 of 1988 dt.25-10-2024

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25. Counsel further relied on the Judgment of

Smt. Sundari Devi Vs. Deo Narayan Prasad (supra), whose

paragraph 17 states as follows:

“17. Therefore, the

basic principal behind Section 16(C)

is that any person seeking benefit of

the specific performance of contract

himself manifest that his conduct has

been blamishless 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 pleading manifest that the

conduct of the plaintiff entitles him to

get the relief on perusal of the plaint

he should not be denied relief but it is

clear that the averment of readiness

and willingness in the plaint should

not be a mathematical formula which

should not be in specific word only.

From the averment in the plaint

supported by evidence should clearly

indicate the readiness and willingness

of the plaintiff. The conduct of the

plaintiff should be reflected from the

subsequent circumstances and

conduct of the plaintiff. No doubt

readiness and willingness could not be

Patna High Court SA No.583 of 1988 dt.25-10-2024

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treated as a straight jacket formula

and that had to be determined from

the entirety of facts and circumstances

relevant to the intention and conduct

of the party concerned. In the present

case, except the mathematical

pleading and evidence that the

plaintiff was always ready and willing

to perform her part of the contract

there is no cogent and reliable

evidence. It is stated in the evidence in

examination in chief by PW 1 that

many times he approached the

defendant to receive consideration

amount and register the sale deed. His

wife i.e. the plaintiff has stated that

she had asked the defendant through

her husband to execute the sale deed.

Except this bald statement in the

pleading as well as in evidence there

is nothing on record to show that the

plaintiff was ever ready and willing to

perform her part of the contract. The

onus was upon the plaintiff to adduce

reliable evidence as to when the

money was offered to the defendant

and what was his reply. Whether the

defendant ever refused to execute the

sale deed or he refused to accept the

plaintiff's consideration amount.

Patna High Court SA No.583 of 1988 dt.25-10-2024

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Whether the plaintiff ever called upon

the defendant to the registry office. All

these questions are not clear from the

pleadings or evidence. Likewise so far

issuance of first registered notice is

concerned i.e. dated 21.6.1984.

Except the pleading and the evidence

nothing has been brought on record to

show that in fact such registered

notice was sent. There must be

something on record so that the Court

can rely on it. The second notice is

dated 7.4.1986 i.e. Ext.2. So far this

notice is concerned it is after two

years. There is no evidence on record

to show the intention, the conduct of

the plaint about her readiness and

willingness during this long period.”

26. Counsel further relied on the Judgment of

Achal Misra Vs. Rama Shanker Singh & Ors. (supra), whose

paragraph 11 reads as under:

“11. On the scheme of the

Act, it is clear that the preliminary step is

to declare a vacancy. At this stage, an

enquiry has to be made including an

enquiry involving at least two

respectable neighbours. It is thereafter

Patna High Court SA No.583 of 1988 dt.25-10-2024

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that the vacancy has to be notified and

objections invited. This is followed by

either dropping of the proceedings on

the objections being upheld that there

was no vacancy, or by allotment to a

tenant on finding the vacancy, or in

ordering a release of the building, in

case a landlord was found entitled to

have such a release under the Act.

Therefore, the notifying of a vacancy is

only a step in the process of making an

allotment of the building to a tenant. The

Act contemplates that no building should

be let out by a landlord except through

the process of allotment by the Rent

Control Authority. Since the order

notifying a vacancy is only a step in

passing the final order in a proceeding

under the Act regarding allotment, it is

clear that the same could be challenged

while challenging the final order, unless

there is anything in the Act precluding

such a challenge or conferring a finality

to the order notifying a vacancy. It was

held long ago by the Privy Council in

Patna High Court SA No.583 of 1988 dt.25-10-2024

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Moheshur Sing v. Bengal Govt. [(1859) 7

Moo IA 283] (Moo IA at p. 302)

“We are not aware of any

law or regulation prevailing in India

which renders it imperative upon the

suitor to appeal from every interlocutory

order by which he may conceive himself

aggrieved, under the penalty, if he does

not so do, of forfeiting forever the benefit

of the consideration of the appellate

court. No authority or precedent has

been cited in support of such a

proposition, and we cannot conceive

that anything would be more

detrimental to the expeditious

administration of justice than the

establishment of a rule which would

impose upon the suitor the necessity of

so appealing; whereby on the one hand

he might be harassed with endless

expense and delay, and on the other

inflict upon his opponent similar

calamities.””

27. Counsel further relied on the Judgment of

Korus (India) Limited Vs. Bank Of Maharashtra & Ors.

Patna High Court SA No.583 of 1988 dt.25-10-2024

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(supra), whose paragraphs 6 reads as follows:-

“6. The order also directed

that the Receiver should separately fix and

collect royalty in respect of the plant and

machinery located in the State of Andhra

Pradesh. By a subsequent order, the order

was modified by substituting the figure of Rs.

19 lakhs per year as against Rs. 20 lakhs per

year as payable by the appellant since Rs. 1

lakh out of Rs. 20 lakhs was to be adjusted

out of the sum of Rs. 11 lakhs paid as

security.”

28. Counsel further relied on the Judgment of

Krishna Mohan Kul & Anr. Vs. Pratima Maity & Ors. (supra),

whose paragraphs 16 and 17 states as follows:

“16. At this juncture, a

classic proposition of law by the Privy

Council needs to be noted. In Mst. Farid-

Un-Nisa v. Munshi Mukhtar Ahmad and

another (AIR 1925 PC 204) it was observed

as follows:

"It is, therefore, manifest that

the rule evolved for the protection of

pardahnashin ladies not be confused with

other doctrines, such as fraud, duress and

actual undue in- fluence, which apply to all

persons whether they be pardahnashin

Patna High Court SA No.583 of 1988 dt.25-10-2024

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ladies or not."

17. The logic is equally

applicable to an old, Illiterate, ailing person

who is unable to comprehend the nature of

the document or the contents thereof. It

should be established that there was not

mere physical act of the executant involved,

but the mental act. Observations of this

Court, though in the context of pardahnashin

lady in Mst. Kharbuja Kuer v. Jang Bahadur

Rai and others (AIR 1963 SC 1203) are

logically applicable to the case of the old,

invalid, infirm (physically and mentally) and

illiterate persons.”

29. Learned Counsel for the respondents relied

on the Judgment of Biswanath Ghosh (dead) by Legal

Representatives & Ors. Vs. Gobinda Ghosh & Ors. (supra),

whose paragraph 28 states as follows:

“28. In the case of Mst.

Sugani v. Rameshwar Das and Anr., [AIR

2006 SC 2172], this Court observed that:

“17. It is not within the

domain of the High Court to investigate

the grounds on which the findings were

arrived at, by the last court of fact. It is

true that the lower appellate court

Patna High Court SA No.583 of 1988 dt.25-10-2024

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should not ordinarily reject witness

accepted by the trial court in respect of

credibility but even where it has rejected

the witnesses accepted by the trial court,

the same is no ground for interference in

second appeal, when it is found that the

appellate court has given satisfactory

reasons for doing so. In a case where

from a given set of circumstances two

inferences are possible, one drawn by

the lower appellate court is binding on

the High Court in second appeal.

Adopting any other approach is not

permissible. The High Court cannot

substitute its opinion for the opinion of

the first appellate court unless it is found

that the conclusions drawn by the lower

appellate court were erroneous being

contrary to the mandatory provisions of

law applicable or its settled position on

the basis of pronouncements made by

the Apex Court, or was based upon

inadmissible evidence or arrived at

without evidence.

18. If the question of law

Patna High Court SA No.583 of 1988 dt.25-10-2024

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termed as a substantial question stands

already decided by a larger Bench of the

High Court concerned or by the Privy

Council or by the Federal Court or by the

Supreme Court, its merely wrong

application on the facts of the case

would not be termed to be a substantial

question of law. Where a point of law

has not been pleaded or is found to be

arising between the parties in the

absence of any factual format, a litigant

should not be allowed to raise that

question as a substantial question of law

in second appeal. The mere appreciation

of the facts, the documentary evidence

or the meaning of entries and the

contents of the document cannot be held

to be raising a substantial question of

law. But where it is found that the first

appellate court has assumed jurisdiction

which did not vest in it, the same can be

adjudicated in the second appeal,

treating it as a substantial question of

law. Where the first appellate court is

shown to have exercised its discretion in

Patna High Court SA No.583 of 1988 dt.25-10-2024

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a judicial manner, it cannot be termed to

be an error either of law or of procedure

requiring interference in second appeal.

This Court in RBI v. Ramkrishna Govind

Morey [(1976) 1 SCC 803 : AIR 1976 SC

830] held that whether the trial court

should not have exercised its jurisdiction

differently is not a question of law

justifying interference. ”

30. Learned Counsel for the respondents relied

on the Judgment of Basavaraj Vs. Padmavathi & Anr. (supra)

whose paragraphs 14, 15, 16 and 17 states as follows:-

“14. The plaintiff also

examined two witnesses, PW 2 and PW 3,

who were attestors to agreement to sell

dated 13-3-2007, who specifically stated that

in July 2007, the plaintiff approached the

defendants and asked them to accept the

balance sale consideration in cash, to that

also there is no cross-examination. The

receipt of Rs 3 lakhs by way of earnest

money, has been held to be proved by both

the courts below. Within a period of one

month from passing of the decree, the

plaintiff deposited the balance sale

consideration i.e. Rs 9,74,000 before the

learned trial court. Considering the

Patna High Court SA No.583 of 1988 dt.25-10-2024

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aforesaid facts and circumstances of the

case, it is observed that the High Court has

materially erred in reversing the decree by

reversing the findings of the trial court on

readiness and willingness of the appellant.

15. From the impugned judgment and

order [Padmavathi v. Basavaraj, 2020 SCC

OnLine Kar 5049], [Basavaraj v.

Padmavathi, 2021 SCC OnLine Kar 15772]

passed by the High Court, it appears that the

reasoning given by the High Court is that the

plaintiff has not proved that he had the cash

and/or amount and/or sufficient funds/means

to pay the balance sale consideration, as no

passbook and/or bank accounts were

produced. In Ramrati Kuer [Ramrati Kuer

v. Dwarika Prasad Singh, (1967) 1 SCR

153 : AIR 1967 SC 1134] which has been

specifically considered by this Court

in Indira Kaur [Indira Kaur v. Sheo Lal

Kapoor, (1988) 2 SCC 488], it was observed

and held as under : (Ramrati Kuer

case [Ramrati Kuer v. Dwarika Prasad

Singh, (1967) 1 SCR 153 : AIR 1967 SC

1134] , AIR pp. 1136-37, para 9)

“9. Fourthly, it is urged that the

respondents did not produce any accounts

even though their case was that accounts

were maintained and that Basekhi Singh

Patna High Court SA No.583 of 1988 dt.25-10-2024

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used to give maintenance allowance to the

widows who were messing separately. It is

urged that adverse inference should be

drawn from the fact accounts were not

produced by the respondents and that if they

had been produced that would have shown

payment not of maintenance allowance but

of half-share of the income to the widows by

virtue of their right to the property. It is true

that Dwarika Prasad Singh said that his

father used to keep accounts. But no attempt

was made on behalf of the appellant to ask

the court to order Dwarika Prasad Singh to

produce the accounts. An adverse inference

could only have been drawn against the

plaintiffs-respondents if the appellant had

asked the court to order them to produce

accounts and they had failed to produce

them after admitting that Basekhi Singh used

to keep accounts. But no such prayer was

made to the court, and in the circumstances

no adverse inference could be drawn from

the non-production of accounts. But it is

urged that even so the accounts would have

been the best evidence to show that

maintenance was being given to the widows

and the best evidence was withheld by the

plaintiffs and only oral evidence was

produced to the effect that the widows were

being given maintenance by Basekhi Singh.

Patna High Court SA No.583 of 1988 dt.25-10-2024

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Even if it be that accounts would be the best

evidence of payment of maintenance and

they had been withheld, all that one can say

is that the oral evidence that maintenance

was being given to widows may not be

acceptable; but no adverse inference can be

drawn (in the absence of any prayer by the

appellant that accounts be produced) that if

they had been produced they would have

shown that income was divided half and half

in accordance with the title claimed by the

appellant.”

16. In Indira Kaur [Indira

Kaur v. Sheo Lal Kapoor, (1988) 2 SCC 488]

this Court after considering the observations

made by this Court in Ramrati

Kuer[Ramrati Kuerv. Dwarika Prasad

Singh, (1967) 1 SCR 153 : AIR 1967 SC

1134] has set aside the findings recorded by

three courts below whereby an adverse

inference had been drawn against the

plaintiff therein for not producing the

passbook and thereby holding that the

plaintiff was not ready and willing to

perform his part of the agreement. It is

observed and held that unless the plaintiff

was called upon to produce the passbook

either by the defendant or, the court orders

him to do so, no adverse inference can be

Patna High Court SA No.583 of 1988 dt.25-10-2024

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drawn.

17. Applying the law laid

down by this Court in the aforesaid two

cases to the facts of the case on hand, no

adverse inference could have been drawn by

the High Court.

The High Court seriously

erred in reversing the findings recorded by

the learned trial Court on the readiness and

willingness of the appellant.”

31. Learned Counsel for the respondents further

relied on the Judgment of Swarnam Ramachandran & Anr. Vs.

Aravacode Chakungal Jayapalan reported in (2004) 8 SCC

689, whose paragraphs 17 and 18 states as follows:-

“17. We do not find any merit

in the above arguments. The courts below

have examined the evidence on record and

have recorded a finding of fact that the

respondent was in a position to raise the

wherewithal for implementing the contract.

However, on facts, it is clear that time to

complete the sale was extended up to 31-12-

1981. That notice terminating the contract

was given by the appellants on 3-10-1981

and the respondent had instituted the suit on

2-12-1981 which indicates that the

respondent was eager to fulfil his part of the

contract. That it is nobody's case that the

post-dated cheque had bounced. That there

Patna High Court SA No.583 of 1988 dt.25-10-2024

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was no unreasonable delay in payment of

consideration and, therefore, it cannot be

said that the respondent was not ready and

willing to perform his part of the contract.

18. In the case of

Nannapaneni Subayya Chowdary v.

Garikapati Veeraya [AIR 1957 AP 307 :

1955 An LT 713] it has been held, after

examining various authorities, that in a suit

for specific performance, all that is

necessary for the purchaser to show is that

he was ready and willing to fulfil the terms

of the agreement; that he had not abandoned

the contract; that he had kept the contract

subsisting. Applying the above tests to the

facts of the present case, we are of the view

that the courts below were right in their

conclusion that the respondent was always

ready and willing to comply with his

obligations under the contract. In the

circumstances, the courts below were right

in decreeing the suit for specific

performance.”

32. After going through the different judgements on

which reliance has been made by the Counsel for the appellants,

it transpires to this Court that the following principles come out

for the purpose of grant of relief for the specific performance of

a contract.

Patna High Court SA No.583 of 1988 dt.25-10-2024

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33. Under Section 16(c) of the Specific Relief Act, the

ingredients of readiness and willingness to perform the essential

terms of the contract are one of the essential elements. The

Court has to enter into the facts and circumstance of cases for

finding that whether the plaintiff was ready and was always

ready and willing to perform his part of contract or not ? It has

also established that in a suit for specific performance of a

contract, the plaintiff must establish his readiness and

willingness to perform his part of the contract. The question as

to whether the onus was discharged by the plaintiff or not will

depend upon the facts and circumstances of each case, no

straitjacket formula can be laid down in this behalf. The

question of readiness and willingness to perform the part of the

contract has to be determined /ascertained from the conduct of

the parties. The plaintiff would have to plead that he had

sufficient funds or was in a position to raise funds in terms of

discharging obligation under the contract. If the plaintiff does

not have enough funds with him to discharge his obligation in

terms of a contract that requires payment of money, the plaintiff

would have specifically pleaded how the fund would be

available to him. It also transpires to this Court from those

judgements that averment of readiness and willingness in the

Patna High Court SA No.583 of 1988 dt.25-10-2024

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pliant should not be a mathematical formula rather it should be

in specific words only. Every averment in the plaint supported

by evidence should clearly indicate the readiness and

willingness of the plaintiff. It transpires to this Court that in the

case of J. P. Builders (supra) extremely huge amount for the

performance of the contract has been involved which is at the

tune of Crores and Crores. In the case of U. N. Krishnamurthy

(supra), the consideration price was Rs.15,10,000/- (Rupees

Fifteen Lac Ten Thousand Only) out of which Rs.10,001/-

(Rupees Ten Thousand One) was paid. In the case of Achal

Mishra(supra), the question of tenancy is involved whereas in

the present case, the total consideration amount is Rs.19,000/-

(Rupees Nineteen Thousand Only) out of which Rs. 15,000/-

(Rupees Fifteen Thousand Only) has already been paid and only

Rs.4000/- (Rupees Four Thousand Only) was yet to be paid. In

this regard, the statement has come in paragraph no.4 of the

plaint followed by paragraph nos. 6 and 7 of the plaint and

subsequently, the pleading has been supported in a legal notice

dated 14.01.1983 and 18.03.1983 (Exhibit 3 and 3A), evidence

of PW-1, PW-10, and PW-12 have rightly been discussed by the

Trial Court in its judgment being issue No. 6 and 7 and decided

the suit in favour of the plaintiff.

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34. It further transpires to this Court that the Appellate

Court has not given its own finding but relied on the finding of

the Trial Court. Here, this Court has reached on the conclusion

on the basis of paragraph No.7 of the plaint, from the contents

of Exhibit -3 and Exhibit-3A and from evidences of PW -1, PW-

10 and PW-12, which clearly states about the readiness and

willingness as about 3/4th amount i.e. Rs.15,000/- had already

been paid and only 1/4th amount i.e. Rs.4,000/- was yet to be

paid. So the facts of the present case cannot be compared with

the facts of the case of J. P. Builders (supra)on which the

appellant relied in which payment of crores and crores rupees

are in question.

35. The respondent relied on the judgement rendered

in the case of Basavaraj Vs. Padmavathi (supra) relevant

paragraph 15 and 16 whereof indicates as under :-

15. From the impugned judgment and

order [Padmavathi v. Basavaraj, 2020 SCC OnLine

Kar 5049]

,

[Basavaraj v. Padmavathi, 2021 SCC

OnLine Kar 15772] passed by the High Court, it

appears that the reasoning given by the High Court

is that the plaintiff has not proved that he had the

cash and/or amount and/or sufficient funds/means

to pay the balance sale consideration, as no

passbook and/or bank accounts were produced. In

Patna High Court SA No.583 of 1988 dt.25-10-2024

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Ramrati Kuer [Ramrati Kuer v. Dwarika Prasad

Singh, (1967) 1 SCR 153 : AIR 1967 SC 1134]

which has been specifically considered by this

Court in Indira Kaur [Indira Kaur v. Sheo Lal

Kapoor, (1988) 2 SCC 488] , it was observed and

held as under : (Ramrati Kuer case [Ramrati Kuer

v. Dwarika Prasad Singh, (1967) 1 SCR 153 : AIR

1967 SC 1134] , AIR pp. 1136-37, para 9)

“9. Fourthly, it is urged that the

respondents did not produce any accounts even

though their case was that accounts were

maintained and that Basekhi Singh used to give

maintenance allowance to the widows who were

messing separately. It is urged that adverse

inference should be drawn from the fact accounts

were not produced by the respondents and that if

they had been produced that would have shown

payment not of maintenance allowance but of half-

share of the income to the widows by virtue of their

right to the property. It is true that Dwarika Prasad

Singh said that his father used to keep accounts.

But no attempt was made on behalf of the appellant

to ask the court to order Dwarika Prasad Singh to

produce the accounts. An adverse inference could

only have been drawn against the plaintiffs-

respondents if the appellant had asked the court to

order them to produce accounts and they had failed

to produce them after admitting that Basekhi Singh

used to keep accounts. But no such prayer was

made to the court, and in the circumstances no

Patna High Court SA No.583 of 1988 dt.25-10-2024

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adverse inference could be drawn from the non-

production of accounts. But it is urged that even so

the accounts would have been the best evidence to

show that maintenance was being given to the

widows and the best evidence was withheld by the

plaintiffs and only oral evidence was produced to

the effect that the widows were being given

maintenance by Basekhi Singh. Even if it be that

accounts would be the best evidence of payment of

maintenance and they had been withheld, all that

one can say is that the oral evidence that

maintenance was being given to widows may not be

acceptable; but no adverse inference can be drawn

(in the absence of any prayer by the appellant that

accounts be produced) that if they had been

produced they would have shown that income was

divided half and half in accordance with the title

claimed by the appellant.”

16. In Indira Kaur [Indira Kaur v. Sheo

Lal Kapoor, (1988) 2 SCC 488] this Court after

considering the observations made by this Court in

Ramrati Kuer [Ramrati Kuer v. Dwarika Prasad

Singh, (1967) 1 SCR 153 : AIR 1967 SC 1134] has

set aside the findings recorded by three courts

below whereby an adverse inference had been

drawn against the plaintiff therein for not

producing the passbook and thereby holding that

the plaintiff was not ready and willing to perform

his part of the agreement. It is observed and held

that unless the plaintiff was called upon to produce

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the passbook either by the defendant or, the court

orders him to do so, no adverse inference can be

drawn.

36. Hence, the substantial question on the point of

readiness and willingness has been decided in favour of the

plaintiffs-respondents-respondents and not in favour of the

appellants.

37. On the point of the second substantial question of

law 'that the appellant has the opportunity to challenge

discarding of supplementary/ additional written statement

dated 04.04.1987 of Defendant No.1/ Appellant/ Appellant

which resulted into shifting of burden on the Plaintiff to prove

that the alleged agreement of sale was genuine and legally

enforceable/not fraudulent, when the purported execution of

the alleged agreement was of an old, aged and illiterate

person, the appellant submits that the rejection of additional

Written Statement can be considered at the level of Second

Appeal particularly when it has not been challenged before any

higher Court.

38. In that case, it is true that the question of

additional Written Statement raised in the Title Suit can be

challenged at the stage of Title Appeal and Second Appeal, but

here in the present case, the said pleadings have not been raised

Patna High Court SA No.583 of 1988 dt.25-10-2024

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at the level of Title Appeal by the appellant but its finding has

come in paragraph no.7 of the judgement passed in Title Appeal

but no evidence has been adduced on the said point at the mouth

of any of the independent witness. Therefore, this Court is of the

view that the question of non-consideration of additional

Written Statement has rightly been decided by the Original

Court and the Appellate Court and there is no need of any

interference in the said finding.

39. The point of 3rd substantial question of law

"whether the Judgment and Decree of the Courts’ below are

valid when Defendant No.2 is lunatic and no guardianship

was appointed though this fact was brought to the notice of

the Court" has already been discussed earlier i.e. the question

of lunacy has been raised in the Written Statement by the

present appellants, in suit but no evidence has been adduced nor

this plea has been raised by the appellant at the level of Title

Appeal and this Court is of the view that once the point on

which the defendant-appellant-appellant has not raised the plea

and chosen not to contest on this point at original level or

appellate level, then at the level of Second Appeal, it shall be

proper for this Court to look into the point that has come in the

pleading of Written Statement but no evidence has been

Patna High Court SA No.583 of 1988 dt.25-10-2024

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adduced, as the suit cannot be considered at the Second Appeal.

Hence, this Court is of the view that the appellants of Second

Appeal themselves left this point at original and first appellate

level.

40. In result, the present Second Appeal is dismissed.

The judgment and decree dated 30.05.1988 and 17.06.1988

respectively, passed by Sri S.N. Pathak, 1

st

Additional District

Judge, Vaishali at Hajipur, in Title Appeal No.28 of 1987 and

judgment and decree 02.05.1987 and 15.05.1987 respectively,

passed by S.N. Sukla, Sub-Judge, Vaishali at Hajipur in Title

Suit No.48 of 1983 are hereby affirmed.

41. Upon perusal of operative part of judgment/decree

passed in Title Suit No.48 of 1983 which is as follows:

“That the suit is decreed on

contest against defendant No.1 and ex-parte

as against defendant No.2 but without costs.

The plaintiff is directed to deposit Rs.4,000/-

(Four thousand) within one month from

today.

The defendant is directed to withdraw

this money and to execute a sale deed in

favour of the plaintiff within two months of

the date of deposit of remainder

consideration money.

If the plaintiff fails to

deposit the remainder consideration money

within the above mentioned time limit the

Patna High Court SA No.583 of 1988 dt.25-10-2024

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suit shall ipso facto stand dismissed.

In case

the remainder consideration is deposited

and the defendants do not execute a sale

deed as directed above the plaintiff shall be

entitled to get a sale deed executed through

the assistance of the Court.

In the

circumstances

of the case, I do not award

any costs to the plaintiff.”

42. Upon reading the said decree it transpires to this

Court that it has been held that specific time has been mentioned

that if plaintiff fails to deposit the remainder consideration

money within one month from the date of judgment then the

suit shall ipso facto stand dismissed. It transpires to this Court

that practically it is not possible after a long litigation of about

41 years the parties became aware within such a short span of

time. It is due to this reason this Court, in the interest of justice,

is modifying the said time limit. After the said modification, the

modified part of the judgment/decree, which has to be executed,

shall be as follows:

“The second appeal is decreed on contest against

defendant No.1/appellant/appellants and ex-parte

against

defendant No.2/ respondents 2

nd

Party/respondents 2

nd

Set but

without cost. The plaintiff/respondents 1

st

Party/respondents 1

st

Set are directed to deposit Rs.4,000/- (Four thousand) within six

Patna High Court SA No.583 of 1988 dt.25-10-2024

55/55

months from today. The defendant No.1/appellant/appellants

is/are directed to withdraw this money and to execute a sale

deed in favour of the plaintiff/respondents 1

st

Party/respondents

1

st

Set within two months from the date of deposit of remainder

consideration money.

In case remainder consideration money

is deposited and the defendants (defendant No.1 and defendant

No.2 of suit/appellant and respondent 2

nd

party of Title Appeal

and appellants and respondents 2

nd

set of second appeal) do not

execute a sale deed, as directed above, the plaintiff/respondents

1

st

Party/respondents 1

st

Set shall be entitled to get a sale deed

executed through the assistance of the Court. In the

circumstances of the case, this Court do not award cost to the

plaintiff/respondents 1

st

Party/respondents 1

st

Set.”

43. Registry is directed to prepare the decree in the

present second appeal and remit back the Lower Court Records

to the Original Court for its execution.

Mkr./Ashwini/-

(Dr. Anshuman, J)

AFR/NAFR AFR

CAV DATE NA

Uploading Date 26.10.2024

Transmission Date NA