Specific Relief Act, 1963: ss. 14 and 16 – Relief of specific performance – Personal bars to the relief – Suit for specific performance of agreement for sale of property by plaintiff against the defendant – Decreed by the trial court, however, set aside by the first appellate court holding that the plaintiff failed to aver and prove his continuous readiness and willingness to perform his part of contract – First appellate court also rejected the plaintiff ’s application seeking leave to amend the plaint – Second appeal by the plaintiff – Dismissed by the High Court – On appeal, held: Plaintiff failed to aver and prove his readiness and willingness to perform his part of the contract – Plaintiff sought leave to amend the plaint only when the ground to that effect was taken in the first appeal by the defendant – Late attempt to improve upon the pleadings of the plaint at the appellate stage was only an exercise in futility – Moreover, the High Court rightly pointed out that no substantial question of law as regards the correctness of the order refusing the application for amendment was formulated – Also, no strong and convincing reason existed to formulate and hear the second appeal on any other question of law – Thus, the relief of specific performance of agreement rightly rejected by the first appellate court and the High Court – Code of Civil Procedure, 1908 – s. 100, 100(5).
Dismissing the appeal, the Court
HELD : 1.1 The High Court and the First Appellate Court rightly held that in the instant suit, specific performance of the agreement cannot be enforced in favour of the plaintiff-appellant for want of proof of his continuous readiness and willingness to perform his part of the essential terms of the contract. [Para 12][178-D-E]
1.2 The relief of specific performance is not that of common law remedy but is essentially an exercise in equity. Therefore, in the Specific Relief Act, 1963, even while providing for various factors and parameters for specific performance of contract, the provisions are made regarding the contracts which are not specifically enforceable as also the persons for or against whom the contract may be specifically enforced. In this scheme of the Act, Section 16 thereof provides for personal bars to the relief of specific performance. [Para 13][178-E-F]
1.3 Though, with the amendment of the Specific Relief Act, 1963, the expression “who fails to aver and prove” is C substituted by the expression “who fails to prove” and the expression “must aver” stands substituted by the expression “must prove” but then, the position on all the material aspects remains the same that, specific performance of a contract cannot be enforced in favour to the person who fails to prove that he has D already 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 the terms of which, the performance has been prevented or waived by the other party. As per the law applicable at the relevant time, it was incumbent for the plaintiff to take the specific averment to that effect in the plaint. Such requirement of E taking the necessary averment was not a matter of form and no specific phraseology or language was required to take such a plea. However, and even when mechanical reproduction of the words of statue was not insisted upon, the requirement of such pleading being available in the plaint was neither waived nor even whittled F down. [Para 14][179-C-F]
1.4 The requirement, of necessary averment in the plaint, that he has already performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him being on the plaintiff, mere want of objection G by the defendant in the written statement is hardly of any effect or consequence. The essential question to be addressed to by the Court in such a matter has always been as to whether, by taking the pleading and the evidence on record as a whole, the plaintiff has established that he has performed his part of the contract or has always been ready and willing to do so. H [Para 15][180-B-C]
1.5 There is not even a remote suggestion in the plaint averments that the plaintiff had performed or has always been ready and willing to perform his part of the contract. Even in the plaintiff’s testimony, it is difficult to find a categorical assertion that he had performed or has always been ready and willing to perform his part of the contract. The testimony of the plaintiff is essentially directed towards the existence and validity of the alleged agreement and the surrounding dealings of the parties; but is lacking in those material assertions on readiness and willingness on his part, which remain essential for grant of the relief of the specific performance. Thus, no fault is found in the findings of the High Court that the plaintiff had failed to aver and prove his continuous readiness and willingness to perform his part of the contract. [Para 16 and 17][181-C-E] Umabai and another v. Nilkanth Dhondiba Chavan (Dead) by LRS. and another (2005) 6 SCC 243 : [2005]
3 SCR 521 ; A. Kanthamani v. Nasreen Ahmed (2017)
4 SCC 654 : [2017] 2 SCR 610; Syed Dastagir v. T.R.Gopalakrishna Setty (1999) 6 SCC 337 : [1999] 1 Suppl. SCR 351 ; Aniglase Yohannan v. Ramlatha and Ors (2005) 7 SCC 534 : [2005] 3 Suppl. SCR 440 – referred to.
2. As regards, amendment of the plaint, no illegality is found on the part of the first appellate court and the High Court in rejecting the prayer belatedly made by the plaintiff. The averment and proof on readiness and willingness to perform his part of the contract has been the threshold requirement for a plaintiff who seeks the relief of specific performance. The principle that the requirement of such averment had not been a matter of form, applied equally to the proposition for amendment at the late stage whereby, the plaintiff only attempted to somehow improve upon the form of the plaint and insert only the phraseology of his readiness and willingness. In such a suit for specific performance, the Court would be, and had always been, looking at the substance of the matter if the plaintiff, by his conduct, has established that he is unquestionably standing with the contract and is not wanting in preparedness as also willingness to perform everything required of him before he could be granted a relief whereby, the performance of other part of the contract could be enjoined upon the defendant. In the instant case, the plaintiff-appellant had failed to aver and prove his readiness and willingness to perform his part of the contract. The trial court made a rather assumptive observation that he had proved such readiness and willingness. Thereafter, the plaintiff sought leave to amend the plaint only when the ground to that effect was taken in the first appeal by the defendant. In the facts and circumstances of the instant case, it was too late in the day for the plaintiff to fill up such a lacuna in his case only at the appellate stage. In other words, the late attempt to improve upon the pleadings of the plaint at the appellate stage was only an exercise in futility in the instant case. Moreover, the High Court rightly pointed out that no substantial question of law as regards the correctness of the order refusing the application for amendment was formulated. [Para 18, 19][181-F-H, 182-A-D]
3.1 In the scheme of the provisions relating to second appeal, it remains fundamental, as per Section 101 CPC, that no second appeal would lie except on the ground mentioned in Section 100. As per Section 100, the appeal would lie to the High Court from the decree passed in appeal by any Court subordinate only if the High Court is satisfied that the case involves a substantial question of law; such question is required to be stated in the Memorandum of Appeal; the High Court is required to formulate the question on being satisfied that the same is involved in the case; the appeal is to be heard on the question so formulated; and at the time of hearing, the respondent could urge that the case does not involve such a question. The proviso to sub-section (5) of Section 100 makes it clear that the Court could hear the appeal on any other substantial question of law not formulated by it, but only after recording the reasons that the case involves such a question. [Para 19, 20][182-D, 183-C-D] Surat Singh (Dead) v. Siri Bhagwan and Ors. (2018) 4 SCC 562 : [2018] 1 SCR 1063 – referred to.
3.2 The proviso to sub-section (5) of Section 100 CPC is not intended to annul the other requirements of Section 100 and it cannot be laid down as a matter of rule that irrespective of the question/s formulated, hearing of the second appeal is open for any other substantial question of law, even if not formulated earlier. The said proviso, by its very nature, could come into operation only in exceptional cases and for strong and convincing reasons, to be specifically recorded by the High Court. There being no such strong and convincing reason in the present case to formulate and hear the second appeal on any other question of law, the High Court cannot be faulted in rejecting the contentions urged on behalf of the plaintiff-appellant in this regard. [Para 21][183-G-H, 184-A-B]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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