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1980 DIGILAW 842 (ALL)

Budhoo Teli v. Ram Surat Tewari

1980-09-15

S.J.HYDER

body1980
JUDGMENT : S.J. Hyder, J. The suit of the Plaintiff Respondent for specific performance was dismissed by the trial court. This decree was reversed by the first court of appeal and in consequence the suit stood decreed. The defendant Appellant has now appealed to this Court. 2. The only question which has been urged in support of this appeal is that the plaint does not conform to the requirements of Section 16(c) of the Specific Relief Act, 1963, and should have been thrown out on that ground alone. The said provision of law in so far as it is relevant may now be read out: 16. Specific performance of a contract cannot be enforced in favour of a person: (a)....(b)....(c) Who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contracts 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 involved the payment of money, it is not essential for the Plaintiff to actually tender to the Defendant or to deposit in court any money except when so directed by the court; (ii) the Plaintiff must aver performance of; or readiness and willingness to perform the contract according to its true construction. 3. In support of this contention the Appellants' counsel has referred to a number of decisions decided by this Court and also by the Supreme Court of India. The case cited by him shall be referred to later in this judgment. 4. Before proceeding further it is necessary to state certain facts. 5. The statement of claim filed by the Plaintiff Respondent on September 27, 1967 disclosed that the Defendant Appellant was owner of the house in dispute. He entered into an agreement to sell the said house in favour of the Plaintiff Respondent on March 13, 196S for a total sale consideration of Rs. 8000/- and that the Plaintiff Respondent paid a sum of Rs. 4000/- as earnest money to the Defendant Appellant. In paragraph 3 of the statement of claim the Plaintiff Respondent made a positive averment that he had always been ready and willing to perform the contract but the Defendant Appellant had been avoiding to do so. 8000/- and that the Plaintiff Respondent paid a sum of Rs. 4000/- as earnest money to the Defendant Appellant. In paragraph 3 of the statement of claim the Plaintiff Respondent made a positive averment that he had always been ready and willing to perform the contract but the Defendant Appellant had been avoiding to do so. He also disclosed that in order to defeat and delay his claim under the contract dated March 13, 1965, the Defendant Appellant had transferred the house in favour of his own daughter who was impleaded in the suit as the second Defendant. In paragraph 6 of the statement of claim it was stated that it was on September 20, 1967 that the Defendant finally refused to carry out the agreement to convey the property. 6. The suit was contested by the two Defendants by filing separate written statements. The only defence put forward was that no agreement dated March 13, 1965 had been executed by the Defendant 'Appellant as alleged in the statement of claim. In short both the Defendants in the suit pleaded that the agreement relied upon by the Plaintiff Respondent was not true and he could not succeed on its basis. 7. As already indicated the trial court found against the Plaintiff Respondent on the crucial point and dismissed his suit. On an assessment of evidence the first court of appeal has reached an opposite conclusion. 8. Learned Counsel for the Defendant Appellants concedes that the statement of claim filed by the Plaintiff Respondents does contain an averment that he has always been ready and willing to perform the essential terms of the contract and to that extent the requirements of Section 16(c) of the Specific Relief Act are satisfied. He has, however, contended that in the statement of claim it has nowhere been averred that the Plaintiff Respondent was ready and willing to perform the agreement at the time of the institution of the suit. 9. To sustain the said argument learned Counsel for the Defendant Appellant relied on Ouseph Varghese v. Joseph Aley AIR 1974 (sic); Sankatha Prasad v. Abdul Aziz Khan 1975 ALR 697, Manohar Lal v. Rajeshwari Devi AIR 1977 36 ; Mahmood Khan and Another Vs. Ayub Khan and Others, AIR 1978 All 463 and Sagarmal v. Abdul Hamid 1980 ALR 273. To sustain the said argument learned Counsel for the Defendant Appellant relied on Ouseph Varghese v. Joseph Aley AIR 1974 (sic); Sankatha Prasad v. Abdul Aziz Khan 1975 ALR 697, Manohar Lal v. Rajeshwari Devi AIR 1977 36 ; Mahmood Khan and Another Vs. Ayub Khan and Others, AIR 1978 All 463 and Sagarmal v. Abdul Hamid 1980 ALR 273. I have carefully gone through all these cases and in my opinion they are distinguishable. In each one of these cases the Plaintiff seeking the relief for specific performance had made no averment stating that he had always been ready and willing to perform the essential terms of the contract which were to. be performed by him. It was on account of a total want of this essential requirement that the courts entered verdict against the Plaintiffs in the said cases. In none of these cases the argument which has been urged on behalf of the Defendant Appellant was considered by the courts which decided them. 10. It may be pointed out that Section 16(c) of the Specific Relief Act, 1963 does not make it obligatory on a Plaintiff to aver and prove that he is still ready and willing to specifically perform the agreement. This was the requirement which was culled out from the language employed in forms 47 and 48 of the Appendix A to the CPC and on the general principles of law relating to suits for specific performance. In my opinion after the enactment of the Specific Relief Act, 1963 it is no longer obligatory on the Plaintiff to make such an averment. The forms contained in Appendix A to the Code of Civil Procedure cannot override the provisions of an Act which has been subsequently passed. 11. There is another reason which impels me to discount the submission made on behalf of the Defendant Appellants. It has already been stated that the Plaintiff Respondent has specifically alleged that he had always been willing and ready to perform the conditions of the contract which were to be performed by him and even he offered the money to the Defendant Appellant who refused to accept the same. According to him the last demand to perform the agreement was addressed to the Defendant Appellant a few days before the institution of the suit. According to him the last demand to perform the agreement was addressed to the Defendant Appellant a few days before the institution of the suit. The very fact that the Plaintiff Respondents filed the suit for specific performance with alacrity and without any delay indicates that he was still ready and willing to perform his obligations under the agreement. In my opinion it is pendentic hair-splitting to submit in these circumstances that the Plaintiff Respondent has not averred and proved that he was ready and willing to perform the contract even at the time of the institution of the suit. 12. The conclusion which I have reached finds support from the case; R.C. Chandiok and Another Vs. Chuni Lal Sabharwal and Others, AIR 1971 SC 1238 . Grover, J. speaking for the Court observed: Readiness and willingness cannot be treated as a strait jacket formula. These, have to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned. 13. It is worthwhile to highlight that one of the facts which their lordships took into consideration in coming to the conclusion that the Plaintiffs of that case were still ready and willing to perform the obligations under the contract which mom to be performed by them was the fact that they promptly filed the suit for specific performance. According to their Lordships this promptness showed their keenness and readiness in the matter of acquiring the property which was in dispute in that case. 14. For the reasons stated above I find no merits in this second appeal which is accordingly dismissed with costs.