Kamdev Nath Choudhury v. Devendra Kumar Nath — 1979 DIGILAW 24 (GAU)

Judgement JUDGEMENT :- Whether the impugned judgement and decree of specific performance of contract is liable to be set aside being hit by Section 16(c) of the Specific Relief Act, 1963 as the plaintiff had failed td aver performance of, or readiness and willingness to perform the contract according to its construction. 2. The plaintiff sued the defendant for 1 kani of land. The plaintiff sold the suit land to the defendant for a consideration of Rs. 300/- on the condition of re-purchase if the consideration amount was repaid within three years. Thereafter it is averred by the plaintiff that he offered the consideration money of Rs. 300/- to the defendant in Pous, 1966 A.D. and asked the defendant to execute a deed of reconveyance in favour of the plaintiff. The defendant did not accept it. There was a panchayat on or about the 12th day of Jaistha, 1374 B.S. corresponding to 27-5-1966 wherein the plaintiff offered the money to the defendant and demanded due execution of the deed of reconveyance but without any success. As the causes of action arose in the month of Magh, 1374 B.S. and 12th of Jaistha, 1374 B.S. (27-5-1966 A.D.) on account of the refusal of the acceptance of the consideration money and refusal to reconveyance the land the plaintiff filed the suit in the court of the Munsiff, Dharmanagar and deposited a sum of Rs. 300/- in cash into court by a challan and prayed for a decree for reconveyance in respect of the suit land. The defendant contested the suit but did not take up any specific plea that there was no averment in the plaint as to the readiness and willingness to perform the contract by the plaintiff in his pleading. According td the defendant, there was no stipulation for reconveyance of the land as claimed by the plaintiff. The court of the first instance framed several issues but none touching the question as to the absence of averment as required under Section 16(c) of the Specific Relief Act, 1963, for short "the Act". The trial court decreed the suit. The appeal preferred by the appellant-defendant was abortive. Being aggrieved the defendant has brought the second appeal. 3. Mr. The court of the first instance framed several issues but none touching the question as to the absence of averment as required under Section 16(c) of the Specific Relief Act, 1963, for short "the Act". The trial court decreed the suit. The appeal preferred by the appellant-defendant was abortive. Being aggrieved the defendant has brought the second appeal. 3. Mr. P.M. Palit, the learned counsel appearing on behalf of the appellant has urged that there is no averment in the plaint that the plaintiff had performed or had always been ready and willing to perform the contract and as such the impugned judgement and decree are liable to be set aside. No other point has been urged. According to the learned counsel specific performance of a contract cannot be enforced in favour of a person 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 were to be performed by him. Mr. Palit points out Order 6, Rule 6 of the Code and submits that an averment td the above effect is a condition precedent as contemplated under the said Rule. Order 6, Rule 6 reads as follows :- "Condition precedent. Any condition precedent, the performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading by the plaintiff or defendant, as the case may be; and, subject thereto, an averment of the performance or occurrence of all conditions precedent necessary for the case of the plaintiff or defendant shall be implied in his pleading." 4. A person is entitled to bring an action in respect of a certain right or to a certain sum of money, but in some cases he is required to do something before he can sue either by reason of the provisions of some statute or on account of some agreement between the parties. These are the conditions precedent. According to Mr. Palit, Section 16(c) of "the Act" enjoins a party seeking relief of specific performance of a contract to aver in the plaint the requisites set out in S.16(c) of "the Act". According to the learned Counsel the averment must be strictly in compliance with Forms Nos. These are the conditions precedent. According to Mr. Palit, Section 16(c) of "the Act" enjoins a party seeking relief of specific performance of a contract to aver in the plaint the requisites set out in S.16(c) of "the Act". According to the learned Counsel the averment must be strictly in compliance with Forms Nos. 47 and 48 of Appendix A of the Civil P.C. Order 48, Rule 3 reads as follows :- "Use of forms in appendices.- The forms given in the appendices, with such variation as the circumstances of each case may require, shall be used for the purposes therein mentioned." 5. Therefore, in my opinion, the forms in appendices of the Civil P.C. are merely guidelines assisting the litigant and the court. In my opinion, a substantial compliance with the rule is enough. Procedural laws are intended to facilitate and not to obstruct the course of substantive justice. Provisions regarding pleadings in civil actions ought not to be treated technically. Pleadings are meant to give to each side intimation of the case of the other so that the case may be not (sic), to enable the court to determine the real issue between the parties and to prevent deviations from the course which litigation on particular causes of action must take. In a suit for specific performance of contract if the plaint does not contain the specific words as set out in the forms and/or the specific words "readiness and willingness" on the part of the plaintiff but read as a whole it appears to the court that it complies with the provision of law in substance the plaint should not be thrown out. 6. Lord Campbell in Cort v. Ambergate, etc., Railway Co., (1851) 117 ER 1229 (1236) : 17 QB 127 observed as follows :- "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 if it had not been renounced by the defendant". 7. If that be the true test, it is enough compliance of Section 16 of "the Act" if it is asserted in a plaint that the plaintiff was not responsible for non-completion of the contract and he was disposed and able to complete it had it not been renounced by the defendant. 8. 7. If that be the true test, it is enough compliance of Section 16 of "the Act" if it is asserted in a plaint that the plaintiff was not responsible for non-completion of the contract and he was disposed and able to complete it had it not been renounced by the defendant. 8. It is undoubtedly true that there are divergent views as to the extent of the strictness in which plaints are required to be drafted. However,I have not been able to persuade myself to accept that if a plaintiff expresses that he was not responsible for non-completion of the contract and he was disposed and able to complete it, he should be non-suited merely because the specific words required in the forms of the Civil P.C. are not reflected in the pleadings. 9. There is another aspect of the matter to which I cannot shut my eyes bearing in mind that the Privy Council and Supreme Court have said on a number of occasions that some latitude must be given in the case of Moffusil pleadings. In this regard let me refer to an observation of Vivian Bose, J. in Kedar Lal Seal v. Hari Lal Seal, AIR 1952 SC 47 . Bose J., speaking for the Supreme Court, observed :- "I would be slow to throw out a claim on a mere technicality of pleading when the substance of the thing is there and no prejudice is caused to the other side, however, clumsily or inartistically the plaint may be worded." 10. The object of all laws is to give relief to a deserving party. To uphold the cause of justice mere technicalities must be shorn of. It is true that if prejudice is caused to the other party due to defective pleadings, the party at fault should not be given the undue advantage. The following observations of the Supreme Court in Ganesh Trading Co. v. Moji Ram, AIR 1978 SC 484 , are relevant. "Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable Courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take." 11. Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable Courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take." 11. In this backdrop let me proceed to examine as to whether there are sufficient averments made by the plaintiff as contemplated under Section 16(c) of the Specific Relief Act, 1963 read with Explanation (ii). 12. On perusal of the pleading I find that the plaintiff has specifically stated in his plaint that he offered the consideration money to the defendant in the month of Jaistha, 1374 B.S., corresponding to 27-5-1966 and also in the month of Pous, 1966 A.D. but the defendant refused to accept it and did not execute the document. The plaintiff has, in fact, deposited Rs. 300/- into court, the consideration amount by a challan. He has stated in para 8 (Ka) of the plaint "That the suit be decreed to the effect that the defendant executes valid sale-deed for the land in favour of the plaintiff on taking Rs. 400/-, the amount which has been deposited by the plaintiff in court through chalan, as per contract dated 27-5-1965 A.D. and gets it registered." The averments in paragraphs 2, 4 and 5 of the plaint clearly show that the plaintiff had performed the part of his contract, offered the consideration money. This shows that the plaintiff has always been ready and willing to perform his part of the contract. This has been averred clearly and specifically. This is substantial and due compliance with the provisions of the law. The plaintiff instead of expressing in so many words that he was ready and willing to perform the contract did deposit the entire consideration money into court. This is a clear manifestation of his "readiness and willingness". In my opinion, the act of deposit of the consideration money into court is full and complete compliance of the provisions of Section 16 of "the Act". The Explanation to Section 16 deals with procedure and not with substantive law. This is a clear manifestation of his "readiness and willingness". In my opinion, the act of deposit of the consideration money into court is full and complete compliance of the provisions of Section 16 of "the Act". The Explanation to Section 16 deals with procedure and not with substantive law. The basic principle behind Section 16(c) read with Explanation is that any person seeking benefit of the specific performance of contract must manifest that his conduct had been good all throughout entitling him to obtain the specific relief. The Section imposes a personal bar. The court is to grant or refuse relief on the basis of the conduct of the person seeking the 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 debarred to have the relief under the section. On perusal of the Law Commissions Ninth Report, 934 it will be clear that clause (c) of Section 16, a new provision incorporates the principles laid down by the case laws that in a suit for specific performance, the plaintiff must show that all conditions precedent have been fulfilled and also allege and prove a continuous readiness and willingness to perform his part of the contract. The Explanation has done away with the former rigour of tendering the consideration money into court and softened it to the extent that he should merely express his readiness and willingness to perform the contract according to its true construction. In view of the fact and circumstances of the case, I have no hesitation in coming to the conclusion that in the instant case the plaintiff has fully averred in his plaint that he had offered the consideration money to the defendant as enjoined under the contract and as a manifestation of his readiness and willingness to perform the contract deposited the money into court by challan. Under these circumstances, there cannot be doubt whatsoever that the plaintiff has duly fulfilled the requisites contemplated under Section 16 of the Specific Relief Act, 1963. It is worthwhile to note at this stage that the defendant did not take up this plea nor made any statement in his written statement alleging non-compliance of the provision of Section 16 of "the Act" by the plaintiff. Accordingly no issue was framed. The argument that has been advanced by Mr. It is worthwhile to note at this stage that the defendant did not take up this plea nor made any statement in his written statement alleging non-compliance of the provision of Section 16 of "the Act" by the plaintiff. Accordingly no issue was framed. The argument that has been advanced by Mr. Palit is entirely a new ground. I have allowed the appellant to take up the ground and to argue it as it is a question of law. However, I do not express my final opinion as to whether a party is entitled to take up such a plea in a second appeal for the first time. 13. In the result, the appeal is dismissed with costs. Appeal dismissed.