PALTHUR HONOUR SAHEFO v. BOPANNA ANNAPURNAMMA — 1985 DIGILAW 285 (KAR)

P. A. KULKARNI, J. ( 1 ) CIVIL Revision Petition No. 2587 of 1982 by defendant-2 is directed against the common order dated 27-7-1982 passed by the Munsiff, Siruguppa, in 0. S No. 1 of 1981 allowing the amendment application I. A. No. 7. Civil Revision Petition No. 2637 of 1982 by defendant-2 is directed against the same said common order dated 27-7-1982 passed by the Munsiff, siruguppa, in O. S. No. 2 of 1981 allowing the amendment application I. A. No. 7. ( 2 ) GUDAVARTHI Sathyanarayana Rao, defendant-1 in O. S. No 2 of 1981 (C R. P. No. 2637 of 1982) had entered into an agreement to sell an agricultural land with Bopanna Nagabhushanam on 27-1-1968. The said Bopanna Nagabhushanam died before the suit on 5-4-1968 leaving behind him the present plaintiffs in both the suits as his legal representatives. The legal representatives gave a notice calling upon defendant-1 Gudavarthi Sathyanarayana Rao stating that the entire sale consideration had been given to him and that Bopanna Nagabhushanam had been put in possession of the land and thus called upon him to execute the sale deed. In the meantime, defendant-1 Gudavarthi Satyanarayana Rao sold the land to defendant-2. Hence the plaintiffs filed the suit O. S. No. 2 of 1981 for specific performance of the agreement to sell. ( 3 ) SIMILARLY in O. S. No. 1 of 1981 (C. R. P. No. 2587 of 1982) Gudavarthi visweswara Rgo defendant-1 entered into an agreement to sell an agricultural land with Bopanna Nagabhushanam on 27-1-1968. He paid the entire consideration and he was put in possession by the vendor. The said Bopanna nagabhushanam died on 5. 4. 1968. Thereafter his legal representatives i. e. the plaintiffs issued a notice to the said gudavarthi Vishweswara Rao calling upon him to execute the sale deed. In the meanwhile, defendant No. 1 has sold the land in question to defendant no. 2. As he did not comply with the request, the plaintiffs filed O. S. No. 1 of 1981 for specific performance. ( 4 ) BOTH the suits were resisted by the defendants. ( 5 ) THE trial court had decreed both the suits. Defendant-2 being dissatisfied by the decrees passed by the trial court in the said two suits, filed two appeals-R. A. Nos. 56 of 1975 and 57 of 1975. ( 4 ) BOTH the suits were resisted by the defendants. ( 5 ) THE trial court had decreed both the suits. Defendant-2 being dissatisfied by the decrees passed by the trial court in the said two suits, filed two appeals-R. A. Nos. 56 of 1975 and 57 of 1975. While the said two appeals were being argued, a point was raised by defendant-2 that the two suits were incompetent as the plaintiffs had not complied with Sec. 16 (c) of the Specific relief Act and as they had failed to aver in the plaint and prove that they have performed or have always been ready and willing to perform the essential terms of the contract which are to be performed by them, other than terms tha performance of which has been prevented or waived by the defendant. Thus, in short. defendant-2 appellant in the said two appeals contended that in view of the non-compliance with the imperative and mandatory requirement laid down by Sec. 16 (c) of the Specific Relief Act, both the suits were incompetent and the suits deserved to be dismissed. At that stage, the plaintiffs in both the suits filed an amendment application i. A. No. 2 in both the appeals under o. der 6 Rule 17 C. P. C. seeking permission to amend the plaint that they have performed or have always been ready and willing to perform the essential terms of the contract which are to be performed by them. The District Judge, who heard the said appeals, set aside the judgments and decrees passed by the trial court and remanded both the cases to the trial court for fresh disposal and directed the trial court to dispose of the amendment applications. The said amendment applications came to be numbered as I-A. No. 7 in the trial court. The trial court allowed the amendment applications in both the suits. Hence these revisions by defendant No. 2. ( 6 ) THE learned counsel Shri Desai for the plaintiffs in both the suits drew my attention to para 38 of the judgment. delivered by the District Judge in R. A. Nos. 56 and 57 of 1975 and contended that the District Judge had practically allowed the amendment applications and for the sake of formality, he had sent the amendment applications to the trial court. delivered by the District Judge in R. A. Nos. 56 and 57 of 1975 and contended that the District Judge had practically allowed the amendment applications and for the sake of formality, he had sent the amendment applications to the trial court. Para 38 of the judgment passed by the District Judge reads as:"the fact that neither defendant No. 1 nor defendant No. 2 in both the suits took such a contention either in their written statements or in their evidence on oath, will not come to the aid of the plaintiffs to save their suits. The essential averments having not been pleaded by the plaintiffs, i hold that the decrees given to them, challenged in these appeals, aie unsustainable in law. They are liable to be set aside. "therefore, the reasoning adopted by the District Judge will go to show that he set aside the judgments and decrees passed by the trial court on the ground that the necessary averments as required by Sec. 16 (c) of the Specific Relief Act had not been pleaded by the plaintiffs in both the suits. Ha also clearly held that it being a mandatory lequirement of the law, it was the bounden duty of the Court to consider ths effect of non-compliance with Sec. 16 (c) of the Specific relief Act, notwithstanding the fact that such a plea had not been raised by the defendants. Therefore, the said argument of the learned counsel Shri desai that the reasoning adopted by the district Judge in para 38 amounted to rather allowing the amendment applications, cannot be accepted. He also referred me to paras 39 and 42 of the judgment delivered by the District Judge, in support of his contention But they do not in the least support his contention that the District Judge had rather practically allowed the amendment applications. ( 7 ) THE short point that arises for consideration in these two revisions is whether the amendment applications filed in both the suits under Order 6 rule 17 C. P. C. in order to bring the plaint in both the cases in conformity with sec. 16 (c) of the Specific Relief Act, should be allowed or not at this stage. 16 (c) of the Specific Relief Act, should be allowed or not at this stage. ( 8 ) FT is undisputed that the plaintiffs in both the suits have not averred that they have performed or have always been ready and willing to perform the essential terms of the contract which are to be performed by them. The learned counsel Shri Desai urged that the plaintiffs had clearly stated in both the suits that the entire sale consideration had been paid to tha vendor and that the vendor had put them in possession of the respective suit properties. According to him, nothing more was required to be averred or proved in such cases seeking specific performance of the agreement to sell According to him, the pleading should not be read in a hyper technical manner and the court should see as to whether the requirements laid down by law have been satisfied by the parties or not. ( 9 ) SECTION 16 (c) of Specific Relief act reads as:"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 contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. " (underlining is mine)''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. "section 16 of the Specific Relief act is a mandatory and imperative provision, because it reads that specific performance of a contract cannot be enforced in favour of a person who fails to aver and prove as laid down by it. The word 'aver'and the word 'prove' are entirely two different things. The word 'aver' means that it should be asserted or mentioned in the plaint. The word 'aver'and the word 'prove' are entirely two different things. The word 'aver' means that it should be asserted or mentioned in the plaint. The word 'prove' mentioned in Sec. 16 (c) indicates that the said averment which is pleaded in the plaint must be proved by leading evidence, in the course of trial. The question of proof would arise only if an averment is made in the plaint. In the plaint there is no question of proof at all. Therefore a reading of Sec. 16 makes it absolutely clear that it is quite imperative for the plaintiff to aver in the plaint that he has performed or has always been ready and willing to perform the essential terms of the contract. According to the learned counsel Shri Kolar for the revision petitioner-defendant-2 in both the cases, if there is no such averment in the plaint, it would amount to a non- compliance with the mandatory provision of Sec. 16 (c) and the suit must fail. ( 10 ) THE learned counsel Shri desai for the plaintiffs placed before me Dhian Singh v Tara Chand and another (A. I. R. 1884 Allahabad 4) in support of his contention that the averment in the plaint must in substance incorporate the contention of readiness and willingness on the part of the plaintiff and that if the allegation made in the plaint showed the readiness and willingness on the part of the plaintiff, it would be a compliance with Sec. 16 (c) of the Specific Relief Act. The said allahabad case did not consider the question of an amendment under Order 6 Rule 17 C. P. C. , as involved in the present case. What it stated is as :"in a suit for specific performance of contract the plaintiff relied upon the agreement dated 25-8-1971. He abided by the terms thereof. There was reference in the plaint to his having advanced half of the consideration amount. The notice given to the defendant No. 1 on 1-3-1972 to execute the sale was pleaded too besides saying that he attended the Sub- registrar's office with the balance of sale consideration on 9-3-1972. The relief clause in the plaint sought specific performance on payment of rs. 6000/- being the balance of sale consideration. The suit itself was instituted immediately after the aforesaid notice. The relief clause in the plaint sought specific performance on payment of rs. 6000/- being the balance of sale consideration. The suit itself was instituted immediately after the aforesaid notice. Cumulatively, these contents of the plaint did speak adequately of the averment of readiness and willingness on the plaintiff's part. "in this case, the Allahabad High court does not appear to have considered the effect of non-compliance with the requirement of the word 'aver'. ( 11 ) IN Mahmood Khan and another v Ayub Khan and others (AIR 1978 allahabad, 463), it is ruled therein as :-"in view of the requirements of para 3 of the Form No. 47 of Appendix 'a' of the First Schedule of the civil Procedure Code and in view of the mandate of Sec. 16 (c) of the specific Relief Act, it has become obligatory for the plaintiff not only to aver in the plaint, but also to prove by evidence that the plaintiff has always been ready and willing to perform his part of the contract. The first requirement is that he must aver in the plaint. Indeed, the question of evidence of proving a particular fact would come only when there is an allegation in the plaint to that effect. The compliance of requirements of sec. 16 (c) of the Specific Relief act is mandatory and in absence of the necessary averment in the plaint and in the absence of proof of the same-that the plaintiff had been ready and willing to perform his part of the contract-the suit cannot succeed. Though the defendants had not raised any plea to that effect in the written statement nor was there any issue, the mandate of the statute required that the plaintiff must aver in the plaint and must give proof of the fact that he was and has been ready and willing to perform his part of the contract. Merely giving proof of the fact will not be substitute for the necessary averment in the plaint. The amendment in the plaint in such a case cannot be allowed for two reasons; firstly because a valuable right has accrued to the defendant and, secondly, because the amendment seeks to bring out a cause of action in the plaint, which was conspicuous by its absence in the plaint as originally filed. " (Italic words is mine ). The amendment in the plaint in such a case cannot be allowed for two reasons; firstly because a valuable right has accrued to the defendant and, secondly, because the amendment seeks to bring out a cause of action in the plaint, which was conspicuous by its absence in the plaint as originally filed. " (Italic words is mine ). The learned Judge in Dhian Singh v tara Chand and another (A. I. R. 1984 allahabad 4), has distinguished the Division Bench ruling in Mahmood Khan and another v Ayub Khan and others (A I ,r. 1978 Allahabad, 463) by stating as : -"likewise an examination of various paras of the plaint revealed that there was 'absolutely' no averment about the plaintiff's readiness to perform his part of contract. These are thus decisions which rest upon the particular state of pleadings in individual cases". A little probe into the ruling reported in Mahmood Khan and another v ayub Khan and others (A. I. R. 1978 Allahabad, 463) would go to show that the necessary allegation about the consideration and about the possession etc. , had been made in the plaint. Therefore the distinction sought to be made by the learned single Judge, with all due respect to him, does not appear to be correct. It runs contrary to the materials available in Mahamood Khan's case. ( 12 ) THE learned counsel Shri Desai then relied on Trimbak Shankar Tidke v nivratti Shankar Tidke (A. I R. 1985 Bombay 128 ). It was a case where the question of considering the amendment application in a specific performance suit did not arise. The learned Judge held as:-"in the instant case there was nothing to be performed by the plaintiff at all. The entire amount of rs. 7,000/- which was the consideration for the sale deed is already lying in the coffers of the defendant. The possession of the land has already been made over by the defendant to the plaintiff. All that remains to be done is the execution of the sale deed by the defendant in favour of the plaintiff. So far as the plaintiff is concerned, it is an executed contract on his part; what remains executory is the part to be performed by the defendant. These are the facts averred in the plaint and not denied in the written statement at all. So far as the plaintiff is concerned, it is an executed contract on his part; what remains executory is the part to be performed by the defendant. These are the facts averred in the plaint and not denied in the written statement at all. If this is the position, it beats understanding as to what is that part that the plaintiff is yet to perform. There remains nothing for the plaintiff to perform towards the contractual obligation. If this is so, failure on his part to express his willingness to perform his obligation is of no legal consequence. "the learned Judge has stated on page 129 as:"if any part of the performance of the agreement had remained, then he would have been duty bound to state in the plaint that he was willing to perform that part of the agreement but no such position exists in the present case. I will go a step further and state that in case such statement is not made by the plaintiff when it is necessary to be made, the Court should normally give an opportunity to the plaintiff to amend the plaint for incorporating such averment in the plaint because by doing so the plaintiff does not change the nature of the case at all and normally no prejudice is caused to the defendant if the plaintiff is allowed to amed the plaint in such circumstances. "the view of the learned Judge that when such an averment is not made in the plaint an application for amendment if filed should be allowed, would amount only to obiter dicta. Further as the said bombay decision runs contrary to the mandate contained in Sec. 16 (c) of the specific Relief Act, I, with due respect to the Juc'ge, do not agree with the reasoning adopted by him. ( 13 ) THE learned counsel Shri Desai then placed before me the decision reported in Kamdev Nath Choudhury v devandra Kumar Nath (AIR 1979 gauhati 65 ). It did not consider the case of an amendment. But it only stated that if the circumstances showing that the plaintiff was ever ready and willing to perform his part of the contract, were pleaded in the plaint, the plaintiffs cannot be non-suited. ( 14 ) SHRI Desai then placed before me Rama Nand Chaudhary v Mst. Bhonri and others (AIR 1978 Punjab and haryana 291 ). But it only stated that if the circumstances showing that the plaintiff was ever ready and willing to perform his part of the contract, were pleaded in the plaint, the plaintiffs cannot be non-suited. ( 14 ) SHRI Desai then placed before me Rama Nand Chaudhary v Mst. Bhonri and others (AIR 1978 Punjab and haryana 291 ). It was a case wherein the amendment of the plaint in a suit for specific performance was considered. It was held by Chief Justice Narula in the said case as: -"in a suit by the vendee for the specific performance of the contract of sale, an ex parte decree was passed in his favour. It was, however, set aside. Within a month of the setting aside of the ex parte decree the plaintiff made an application for amendment of the plaint stating that the pfaintiff has been and still is ready and willing to perform his part of the contract and the breach of contract was committed by the defendant. The trial court held, that Sec. 16 (c) of the Specific Relief Act, leaves no room for doubt that the suit for specific performance has to fail if the plaintiff fails to plead and prove his readiness and willingness to peiform his part of the contract and that inasmuch as the object of the plaintiff for amending the plaint was to make that amendment on the assumption that it did not exist in the plaint earlier, the result of allowing the amendment would be to deprive the vendee of a valuable right which had accrued to him. Held that, the stage for recording of evidence had admittedly not yet arrived and the plaintiff made the application for leave to amend the plaint in this crucial respect at the earliest possible opportunity. There was no delay on the part of the plaintiff to make the application and the order of the trial Court declining to permit the amendment would result in grave injustice to the plaintiff as such a plea is necessary in a suit for specific performance of a contract and the order suffers from material irregularity in the exercise of the court's jurisdiction under Order 6 rule 17. "even in the said decision, it has been held that Section 16 c) of the specific Relief Act is a mandatory provision and the requirement laid down by Sec. 16 (c) of the Specific. Relief Act must be pleaded in the plaint. What the learned Chief Justice has held in the said case is that as the amendment had been sought for even before the parties went to lead the evidence and as the amendment was sought immediately after the filing of the suit, the amendment should be allowed. It does not become clear from the said decision as to whether the relief sought stood barred by the time when the amendment application was filed. Therefore, the said ruling will not be of much assistance in the present suit. ( 15 ) SHRI Desai then placed before me l. J. Leach and Co. Ltd. , and another v messrs Jardine Skinner and Co. , (A I. R, 1957 S. C. 357 ). It has been laid down in the said Supreme Court case as :"it is no doubt true that Courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interest of justice. "the sum and substance of the said supreme Court decision is that if the amendment takes away the right ve ted in the defendant by lapse of time, the court should rather refuse to grant the amendment. But, however, it laid down that the simple question of limitation did not affect the power of the Court to order it, if that was required in ths inte est of justice. This Supreme Court decision has been distinguised in the later decision of the Supreme Court reported in mjs Ganesh Trading Co. , v Moji Ram ( AIR 1978 SC 484 ). ( 16 ) SHRI Desai then placed reliance on Sudama Prasad Sah v Ram Singhasan and Others ( AIR 1983 SC 270 ). This Supreme Court decision has been distinguised in the later decision of the Supreme Court reported in mjs Ganesh Trading Co. , v Moji Ram ( AIR 1978 SC 484 ). ( 16 ) SHRI Desai then placed reliance on Sudama Prasad Sah v Ram Singhasan and Others ( AIR 1983 SC 270 ). The supreme Court has stated in the said case as :-"this is an appeal against an order passed by the High Court in revision setting aside an order of the trial court allowing amendment of the plaint in a suit for specific performance filed by the appellant against the respondents. It is true that the High court ordinarily should not interfere in revision with an order passed by the subordinate Court allowing an amendment and in this case the amendment only sought to introduce an express averment of readiness and willingness and perhaps, therefore, we might have interfered with the order of the High Court, but having regard to the nature of the claim, we do not think it necessary in the interests of justice that we should interfere with the order of the High Court in the exercise of our extraordinary jurisdiction under Article 136 of the constitution. Of course, it will be open to the appellant to argue that the facts as stated in the plaint constitute sufficient averment of his readiness and willingness to cany out his part of the contract and it will be for the trial Court to decide whether such argument is valid or not. In the circumstances we reject tha appeal with no order as to costs. "the said Supreme Court decision has only stated that the High Court should be slow in interfering with the discretionary orders passed by the trial court under Order 6 Rule 17 C. P. C. But, however, in the said case, the High court had interfered and did not approve of the allowing of the amendment application by the trial court. But still the supreme Court did not interfere with the order passed by the High Court. The supreme Court in the said case left it to be decided as to whether such an argument is valid or not. But still the supreme Court did not interfere with the order passed by the High Court. The supreme Court in the said case left it to be decided as to whether such an argument is valid or not. Therefore the said supreme Court decision does not lay down that even if the requirements laid down by Sec. 16 (c) of the Specific relief Act are not mentioned in the plaint the suit itself would be competent. This question was left open by the supreme Court to be decided by the trial court. What the Supreme Court stated is that the High Court should not normally interfere with such orders. But it does not mean that the High Court should not interfere with at all under any set of circumstances. If the order passed by the trial court is erroneous and opposed to law and the decisions of the Court, then the High Court is bound to interfere under Section 115 of the civil Procedure Code. ( 17 ) THEN Shri Desai placed before me ramesh Cnandra Chandiok and Another v Chuni Lai Sabharwal (dead) by his legal Representatives and others (A. I. R. 1971 S. C. 1238 ). The said decision does not discuss about the amendment sought in order to bring the suit in conformity with the mandatory requirement laid down by Section 16 (c) of the specific Relief Act. What it stated was that if the allegation made in the plaint indicated that the plaintiff was ever ready and willing that would be sufficient to decree a suit for specific performance. Therefore the said decision will not be of much help to Shri Desai. ( 18 ) THE learned counsel Shri Kolar for the revision petitioner-defendant-2 in both the cases placed before me Ram singhasan Choubey and others v Sudama prasad Sah (AIR 1982 Patna 200 ). Therefore the said decision will not be of much help to Shri Desai. ( 18 ) THE learned counsel Shri Kolar for the revision petitioner-defendant-2 in both the cases placed before me Ram singhasan Choubey and others v Sudama prasad Sah (AIR 1982 Patna 200 ). The patna High Court in the said case has stated as:-"where in a suit for specific performance of contract the plaintiff had failed to aver in the plaint the ingredients of Sec. 16 (c) that he was all along ready and willing to perform the essential terms of the contract which are to be performed by him, and on this plea regarding violation of Sec. 16 (c) being taken by the defendant during the course of arguments, the plaintiff filed an application for amendment of the plaint, it was held that merely because the plaintiff had led evidence that he was ready and willing to perform his part of the contract in the absence of any averment in the plaint would not justify the amendment. " (Mis Ganesh Trading company v Moji Ram, AIR 1978 SC 484 ; Mahmood Khan and another v ayub Khan and others-A. I. R. 1978 allahabad 463 ; Rama Nand Chaudhary v Mst. Bhonri and others-A. I. R. 1978 punjab and Haryana 291; Manick Lal seal and another v K. P. Chowdhury- air. 1976 Calcutta 115 distinguished ). ""there is a distinction between an amendment, which seeks to bring a cause of action, which was conspicuously absent in the plaint, and a cause of action, which, though in the plaint, is defective, the amendment application can be allowed to rectify the defect, but, if a valuable right has accrued, the Court should be reluctant to allow the amendment "after referring to the decisions reported in M/s Ganesh Trading Company v Moji Ram ( AIR 1978 SC 484 ): mahmood Khan and another v Ayub Khan and others (AIR 1978 Allahabad 463) ; rama Nand Chaudhary v Mst. Bhonri and others (AIR 1978 Punjab and Haryana 291) and Manick Lal Seal and another v k. P. Chowdhury (AIR 1976 Calcutta 115 ). the Patna High Court held as : -"3. Bhonri and others (AIR 1978 Punjab and Haryana 291) and Manick Lal Seal and another v k. P. Chowdhury (AIR 1976 Calcutta 115 ). the Patna High Court held as : -"3. It is submitted by learned counsel for the petitioners that by the allowing of this amendment they have been deprived of a valuable right as the suit itself is liable to fail without this amendment and this amendment really creates a right that is barred by limitation. According to the learned counsel for the plaintiff-opposite party no new case is being added, and the amendment sought is purely technical in nature which fact has been stated by P. W. 1 in his evidence in paragraph 4 of his deposition at the very beginning and on this point there was no cross-examination on behalf of the defendant-petitioners. "4. "the decision of this case rests entirely on the interpretation of the two decisions, one of the Supreme court and the other of the Allahabad high Court, which have settled down the law with respect to the effect of the absence of an averment that the plaintiff is ready to fulfil the essential terms of the contract, in the plaint and its effect which can or cannot be cured by amendment of the plaint. In this connection I would first cite the decision of the Supreme Court in the cess of Ganesh Trading Company v. Moji ram (A. I. R. 1978 S. C, 484), para- graphs-2 and 5 of which are relevant and they are usefully quoted below : -"2. 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 betbeen parties, and to prevent deviations from the course which litigation on particular causes of action must take. 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 betbeen parties, and to prevent deviations from the course which litigation on particular causes of action must take. ( 19 ) IT is true that, if a plaintiff seeks to alter the cause of action itself and to introduce indirectly through an amendment of his pleadings an entirely new or inconsistent cause of action, amounting virtually to the substitution Of a new plaint or a new cause of action in place of what was originally there, the Court will refuse to permit it if it amounts to depriving the party against which a suit is pending of any right which may have accrued in its favour due to lapse of time. But, mere failure to set out even an essential fact does not by itself constitute a new cause of action. A cause of action is constituted by the whole bundle of essential facts which the plaintiff must prove before he can succeed in his suit. It must be antecedent to the institution of the suit. If any essential fact is lacking from averments in the plaint the cause of action will be defective. In that case, an attempt to supply the omission has been and could some time be viewed as equivalent to an introduction of a new cause of action which, cured of its shortcomings, has really become a good cause of action. This however, is not the only possible interpretation to be put on every defective state of pleadings. Defective pleadings are generally curable if the cause of action sought to be brought out was not abinitio completely absent. Even very defective pleadings may be permitted to be cured, so as to constitute a cause of action where there was none, provided necessary conditions, such as payment of either any additional court fees, which may be payable, or, of costs of the other side are complied with. It is only if lapse of time has barred the remedy on a newly constituted cause of action that the courts should, ordinarily, refuse prayers for amendment of pleadings. ""5. It is only if lapse of time has barred the remedy on a newly constituted cause of action that the courts should, ordinarily, refuse prayers for amendment of pleadings. ""5. The above Supreme Court decision has been relied upon by a bench decision of the Allahabad High court in Mshmood Khan v Ayub Khan (AIR 1978 Allahabad 463 ). The allahabad case is entirely applicable to the facts of the instant case. It has been held succinctly that even if the plaintiff brings in his evidence the ingredients of Sec. 16 (c), it only satisfies a part of the section, leaving the other part, that is, averment in the plaint unfulfilled. This decision, therefore, held that the amendment should not be allowed. While discussing the passages, quoted above, of the supreme Court decision the Hon'ble judges of the Allahabad High Court have held that the Supreme Court has made a distinction between an amendment, which seeks to bring a cause of action, which was conspicuously absent in the plaint, and a cause of action, which, though in the plaint, is defective, the amendment application can be allowed to rectify the defect, but, if a valuable right has accrued, the Court should be reluctant to allow the amendment. I am in respectful agreement with this decision. It says that to allow amendment would be to allow the plaintiff to bring a cause of action in the suit which was conspicuously absent in the plaint. I am also inclined to hold that merely because the plaintiff had led evidence that he was ready and willing to perform his part of the contract in the absence of any averment in the plaint would not justify the amendment. ( 20 ) LEARNED counsel for the opposite party cited a decision in the case of rama Nand Chaudhary v Mt. Bhonri (AIR 1978 Punjab and Haryana 291) in which similar amendment in the plaint was allowed. In this decision the amendment was disallowad by the trial court but allowed by the High court on the ground that the amendment was sought at the earliest possible opportunity and refusal would lead to grave injustice. In the instant case the amendment sought and allowed was at a stage when everything was over and the trial had practically concluded. In this decision the amendment was disallowad by the trial court but allowed by the High court on the ground that the amendment was sought at the earliest possible opportunity and refusal would lead to grave injustice. In the instant case the amendment sought and allowed was at a stage when everything was over and the trial had practically concluded. The law as laid down in the aforesaid decision of the Supreme court had not been discussed in the punjab case. Further in the Punjab case the case of the defendant was that there was no contract at all. The amendment was only by way of abundant caution. The decision in the case of Manick Lai Seal v K. P. Chowdhury (AIR 1976 Calcutta 115) has no application to the instant case because in the Calcutta case the amendment sought was disallowed on account of the fact that the plaintiff did not bring in the ingredients of sec, 16 (c) of the Specific Relief Act in his evidence," ( 21 ) SHRI Kolar then relied on M/s. Ganesh Trading Company v. Joti Ram ( AIR 1978 SC 484 ). This decision has been discussed at great length in the said Patna case. The Supreme Court has held in this case as : -"it is only if lapse of time has barred the remedy on a newly constituted cause of action that the Courts should, ordinarily, refuse prayers for amendment of pleadings. "the sum and substance of the principle laid down in the Supreme Court case is if by the time the amendment application is filed a right has become vested in the defendant by lapse of time, the Court should ordinarily refuse the amendment. In this case, the agreement to sell is dated 27-1-1968. The suits were filed on 26-6-1968. The amendment application dated 16-7-1977 i. e. nearly 9i years after the suit was filed. It cannot be disputed that the limitation prescribed for a suit seeking specific performance of the contract is 3 years from the date of the agreement. In this case already 91/2 years have lapsed. The amendments have been sought very late and after the expiry of the period of limitation and that too after the entire trial was over and when the matters were being argued in the first appellate court. In this case already 91/2 years have lapsed. The amendments have been sought very late and after the expiry of the period of limitation and that too after the entire trial was over and when the matters were being argued in the first appellate court. By the time the amendment applications were filed in the first appellate court, the right had become vested in the defendant by lapse of time. Therefore the said decision would go a long way in holding that if the amendment applications are filed in order to meet the requirement of Sec. 16 (c) of the Specific Relief Act after the expiry of the period of limitation prescibed for such suits, the Courts should reject such amendment applications. ( 22 ) THE learned counsel Shri Kolar relied on Mahmood Khan and another v ayub Khan and others (AIR 1978 Allahabad 463 ). It has been discussed in great length in the said Patna case. The said Division Bench decision of the Allahabad High Court clearly says that if the requirements mentioned in Sec. 16 (c) of the Specific Relief Act are not pleaded in the plaint, the suits deserve to be dismissed. ( 23 ) SHRI Kolar also placed before me a decision of this Court reported in gurupadayya v Shivappa (1978 (1) karnataka Law Journal, 425 ). This Court similarly dealt with the amendment application in a suit filed for specific performance of the contract. This Court has referred to Ouseph Varghese v Joseph aley and others (1969 (2) Supreme Court cases, 539 ). It reads as :-". . . . THE plaintiff did not plead either in the plaint or at any subsequent stage that he was ready and willing to perform the agreement pleaded in the written statement of the defendant. A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the 1st Schedule in the Civil Procedure Code. In a suit for specific performance it is incumbent on the plaintiff not only to set out agreement on the basis of which he sues in all its details, he must go further and plead that he has applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so. In a suit for specific performance it is incumbent on the plaintiff not only to set out agreement on the basis of which he sues in all its details, he must go further and plead that he has applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so. He must further plead that he has been and is still ready and willing to specifically perform his part of the agreement. Neither in the plaint nor at any subsequent stage of the suit the plaintiff has taken those pleas. As observed by this court in Pt. Prem Rai v the DLF Housing and Construction (Private) (Ltd.) and another (Civil Appeal No. 37/66 decided on 4-4-1968) that 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 in the absence of such an allegation the suit is not maintainable. "this Court further held :-"the above observations of the supreme Court were based on Forms 47 and 48 given in Appendix A of the 1st Schedule in the Civil Procedure code, which also require the plaintiff to state in the plaint that he requested the defendant specifically to perform the agreement on his part, but the defendant has not done so. "this Court held that if amendment applications are filed in suits filed for specific performance of the contract in order to bring the plaint in conformity with Sec. 16 (c) of the Specific Relief act, the amendment applications must be rejected. In support of his conclusion he also relied on Johri v Mahendra singh and another (A. I. R. 1981 Allahabad 436 ). It also lays down that the amendment application in order to bring the plaint in conformity with the requirement of Sec. 16 (c) of the Specific relief Act should not be allowed by the court at all. ( 24 ) THE Supreme Court has clearly laid down in Ouseph Varghese v Joseph aley and others (1969 (2) Supreme Court cases, 539) as :-"a suit for specific performance was filed by the plaintiff on the basis of an alleged agreement between him and the first defendant under which the latter was alleged to reconvey the properties sold for the very price. The defendant denied the agreement, pleaded and stated that just before his death her husband had agreed to sell to the plaintiff Item No. 1 of the suit property less one acre of paddy field for a sum of Rs. 11,500/- but due to the illness of her husband, the sale in question could not be effected. After the filing of the written statement, the plaintiff did not amend his plaint and pray for any relief on the basis of the agreement pleaded by the defendant. He did not also inform the Court that he was ready and willing to accept the agreement pleaded by the defendant or that he was willing to perform his part of the agreement. The Trial Court decreed the suit. In appeal, the High Court did not accept the agreement pleaded the plaintiff, but granted a decree directing the defendant to execute a sale-deed in favour of the plaintiff in respect of Item No. 1 of the suit property less one acre of paddy for rs. 11,500/ -. On appeal to the Supreme Court, held :- (i) After discussing the evidence, that the oral testimony adduced in support of the agreement is a highly interested one. The Trial Court itself observed in the course of its judgment that ''there is no clear cut evidence for proving the terms of the oral contract which is alleged to have been entered into by the plaintiff and the first defendant''. This finding alone should have been sufficient to non-suit the plaintiff. Therefore, the plaintiff has failed to prove the agreement pleaded in the plaint. (ii) It may be noted that the agreement pleaded by the defendant is wholly different from that pleaded by the plaintiff. They do not refer to the same transaction. The two are totally different agreements. The plaintiff did not plead either in the plaint or at any subsequent stage that he was ready and willing to perform the agreement pleaded in the written statement. A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the First Schedule in the Civil procedure Code. The plaintiff did not plead either in the plaint or at any subsequent stage that he was ready and willing to perform the agreement pleaded in the written statement. A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the First Schedule in the Civil procedure Code. In a suit, for specific performance it is incumbent on the plaintiff not only to set out the agreement on the basis of which he sues in all its details, he must go further and plead that he has applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so. He must further plead that he has been and is still ready and willing to specifically perform his part of the agreement. Neither in the plaint nor at any subsequent stage of the suit, the plaintiff has taken those pleas. 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 in the absence of such an allegation the suit is not maintainable. "similar is the principle laid down in p. Ramayya and Others v. C. Krishnaiah and Others (A. I. R. 1957 Andhra Pradesh 26) ; Chandrabali Shah v. Pritam Singh (AIR 1965 Patna 211); and Mulla badruddin v. Master Tufail Ahmed (AIR 1963 Madhya Pradesh, 31 ). The Supreme court has laid down similar principle in prem Raj v. The D. L. F. Housing and construction (Private) Ltd. , and Another ( AIR 1968 SC 1355 ). The learned authors Shri Pollock and Mulla in Indian contract and Specific Relief Acts, Ninth edition, have laid down on page 855 as : -"the plaintiff must plead that he has been and is still ready and willing to specifically perform his part of the agreement. In the absence of this allegation the suit is not maintainable. And before a decree for specific performance can be given he must prove his readiness and willingness to perform his part. "the authors have further stated on page 858 as : -"but a specific allegation seems to be necessary under Sec. 16 (c) of the 1963 Act. In the absence of this allegation the suit is not maintainable. And before a decree for specific performance can be given he must prove his readiness and willingness to perform his part. "the authors have further stated on page 858 as : -"but a specific allegation seems to be necessary under Sec. 16 (c) of the 1963 Act. " ( 25 ) THE learned counsel Shri Desai urged that if the allegations made in the plaint were sufficient to show that the plaintiff was ever ready and willing to perform his part of the contract, the non-mention of the specific words used in Sec. 16 (c) of the Specific Relief Act, was not fatal to the case. I have already referred to a number of decisions which clearly lay down the principle that it is not simply sufficient to mention in the plaint the various circumstances showing the readiness and willingness of the plaintiffs to perform their part of the contract. But they must go further and allege in the plaint that they were and are ever willing and ready to perform their part of the contract. ( 26 ) THUS, in the result, the common order passed by the court below allowing the amendment applications in both the suits, is set aside. The revisions are allowed. The amendment applications filed in both the cases are dismissed. No costs in these revisions. --- *** --- .