JUDGMENT 1. - This is plaintiff's first appeal against the judgment and decree passed by learned Distt. Judge, Alwar, dismissing the suit for specific performance but directing the defendant to pay a sum of Rs. 10,000/- allowing costs in proportion. 2. An agreement was entered between the parties on 9.12.1975 that the lands mentioned in the agreement will be sold to the plaintiff for a sum of Rs. 15,000/- as the defendant was in need of money. A sum of Rs. 10,000/- had been paid on the date of agreement, and Rs. 5,000/- were to be paid at the time of registration of deed, after the suit filed by Sanwalia against the defendant was decided from the court of Sub Divisional Officer. The possession of the suit land was transferred on the date of agreement. The present suit was filed on 23.6.1976, after the suit filed by Sanwalia had been dismissed by the Sub Divisional Officer on 3.3.1976. In the written statement, the defendant had denied the execution of the agreement or receiving consideration of Rs. 10,000/- on 9.12.1975 or that he had agreed to sell the land for a sum of Rs. 15,000/-. He had further submitted an appeal against the judgment of the Sub Divisional Officer dated 3.3.1976, before the Revenue Appellate Authority, and an injunction had been issued against the defendant on 29.3.1976. He had also denied that the plaintiff approached him for executing the sale-deed after 3.3.1976. 3. On the pleadings of the parties, the trial court framed the following issues : 1- vk;k izfroknh us okni= ds iSjk ua0 1 eqUntkZ vkjkft;kr dh xzke egeniqj dks rk0 9-12-75 dks cgd oknh 15]000@& :i;s mlls udn izkIr ctfj;s jlhn djds ,d bdjkjukek c; mlds gd esa rgjhj o rdehy fd;k o mDr vkjkft;kr dk dCnk oknh dks ns fn;k\ & oknh 2- vk;k fcdzh'kwnk tk;nkn vygnk gS\ & oknh 3- vk;k oknh 'ks"k :i;s 5000@& :0 nsdj gj oDr jftLV~h djkus dks rS;kj gS\ & oknh 4- vk;k ,l0Mh0vks0 fd'kux<+ckl ds QSlys dh vihy lkaofy;k us jktLo vihy vf/kdkjh ds ;gkWa is'k dj nh gS tks LVst nkok isf.Max FkhA vr% nkok fizesP;ksj gS\ & izfroknh 5- vk;k cxSj caVokjk gq, nkok fizesP;ksj gS\ 6- vk;k bdjkjukek cuqekb'kh o fcuk cny gS o dCtk tehu eqruktk ij lkaofy;k dk gS\ 7- vk;k izfroknh ds fu'ks"k gtsZ ds :i;s 1000@& :0 izkIr djus dk vf/kdkjh gS\ 4. The learned trial court decided Issue No. 1, 2, 5, 6 and 7 in favour of the plaintiff but decided Issue Nos. 3 and 4 against the plaintiff. 5. The trial court held that agreement to sell was executed on 9.12.1975 and a sum of Rs. 10,000/- had been received by the defendant, but dismissed the suit for specific performance, on the ground that the plaintiff had not pleaded in the plaint that he was always ready and willing to perform his part of the contract, and in doing so, the learned trial court placed reliance on a decision of this Court in Dhanbai Vs. Feroz Shah 1970 RLW 574 . The trial court further held that the suit was pre-matured because an appeal was pending in the court of Revenue Appellate Authority, against the judgment passed by the Sub Divisional Officer. 6. Learned counsel for the appellant has very vehemently submitted that the view expressed by this Court in Dhanbai's case (supra), does not hold water and is not a correct view, and has placed reliance on the following authorities:- Kirpal Singh Vs. Mst. Kartaro and others AIR 1980 Rajasthan 212 wherein a division bench of this Court has noticed Dhanbai's case (supra) and several other cases and has held as under : "It is well established that in a suit for specific performance of the contract, it is the duty of the plaintiff to aver and prove that he was always and is ready and willing to perform the essential terms of the contract." But on facts, their lordships in the above case found that the plaintiff was always ready and willing to perform his part of the contract and therefore, they had decreed the suit for specific performance. Vadu vs. U.K. Chand 1982 RLW 256 wherein it has been held that since there was substantial and due compliance of the provisions of Section 16(c) of the Specific Relief Act, the plaintiff cannot be non-suited in the absence of specific objection being raised in the written statement by the defendant on the ground that they have failed to aver and prove that they had performed or have always been ready and willing to perform the essential terms of the contract, which are to be performed by them. In that case, the plaintiff in his plaint had of course not pleaded in so many words that he was and is still ready and willing to perform his part of the contract but in the plaint, he had clearly averred that he had performed his part of the contract. Even the sale deed had been executed by the defendant No. I and was presented for registration in the office of the Sub Registrar by the plaintiff, but despite information, the defendant did not appear before the Sub Registrar for registration and tried to avoid it. Therefore, their lordships in this case had decreed that suit for specific performance in spite of the fact that there were no clear cut averments and assertion in the plaint, though it was proved in the evidence. Gulam Mohammed Vs. Mst. Mariyam 1984 RLR 511 = 1984 RLW 321 wherein his lordship had noticed both the cases of Dhanbai and Kripal Singh (supra) and decreed the plaintiff's suit for specific performance because the plaintiff had averred in the plaint that he was ready and willing to pay the correct purchase price though, he had not averred that he was ready and willing to tender draft of the conveyance and to pay the stamp duty etc. In that case, the defendant did not deny specifically in the written statement that the plaintiff was ready and willing to perform his part of the contract and there was some proof on record to show that the plaintiff was ready and willing to perform his part of the contract. Raj Kumar Tejendra Singh and others Vs. Sital Raj Mehta 1988 (1) RLR 523 wherein this court held that grant of decree for specific performance of immovable property is a rule and the appellate court should not interfere with the discretion exercised by the trial court, on very cogent grounds. In that case, the plaintiff had agreed to bear the stamp and registration fees but the draft sale-deed was not finalised and after finalising the plaintiff had not purchased the stamps nor paid the balance amount before the Sub Registrar, though on evidence, it was found that the plaintiff was ready and willing to perform his part of the contract. In that case, the plaintiff had agreed to bear the stamp and registration fees but the draft sale-deed was not finalised and after finalising the plaintiff had not purchased the stamps nor paid the balance amount before the Sub Registrar, though on evidence, it was found that the plaintiff was ready and willing to perform his part of the contract. He not only supplied the draft of sale-deed to the defendant but he earnestly pursued the matter but since the defendant did not finalise the sale deed, there was no question of getting the same typed on the stamp papers. Kirpa & others Vs. Sufeda and others 1988 (1) RLR 982 wherein a division bench of this Court has held that merely because stamp papers for getting the sale-deed typed were not purchased and the draft sale deed was not handed over to the defendant, it cannot be said that the plaintiffs were not prepared to perform their part of the contract. Readiness and willingness cannot be judged in isolation from other facts and circumstances and background of the whole matter. My attention has also been drawn to Ramesh Chandra Chandiok and another (7) AIR 1971 SC 1238 wherein also, a suit for specific performance was decreed as on facts, it was found that the plaintiff was ready and willing to perform his part of the contract. It is also observed that readiness and willingness cannot be treated as strait jacket formula. These have to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned.My attention has also been drawn on Dr. Jiwaui Lal and others Vs. Brij Mohan Mehta and anothers 1973 UJ (SC) 45 Note 56, Page 45 and Prakash Chandra Vs. Angadlal and others 1979 UJ (SC) 277 wherein their lordships observed that ordinary rule is that specific mance should be granted. It ought to he denied only when equitable considerations point to its refusal and the circumstances show that the damage would constitute an adequate relief. In that case, the court found that the plaintiff had acted fairly throughout. 7. On the other hand, learned counsel for the respondent- defendant has supported the judgment of the trial court and has placed reliance on the following authorities:- 10 Ardeshirh. Mama Vs. In that case, the court found that the plaintiff had acted fairly throughout. 7. On the other hand, learned counsel for the respondent- defendant has supported the judgment of the trial court and has placed reliance on the following authorities:- 10 Ardeshirh. Mama Vs. Flora Sassoon AIR 1928 PC 208 wherein it has been held that although so far as the Act is concerned, there is not express statement that in a suit for specific performance the averment of readiness and willingness on plaintiff's part upto the date of decree is as necessary as it was always in England, it seems invariably to have been recognised that the Indian and the English requirements in this matter are the same. Gomathinayagam Pillai and others Vs. Palaniswami Nadar AIR 1967 SC 868 in which the trial court did not raise any specific issue about the readiness and willingness of the plaintiff but parties found fully aware of what was required to be proved and led evidence in support of their respective cases. Premraj Vs. D.L.F. Housing Pvt. Ltd. AIR 1968 SC 1355 wherein it has been held 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. In the present case, no such averment is made in the plaint and therefore, no cause of action accrued to the plaintiff with regard to the relief of specific performance of the contract. Mst. Suraj Bai Vs. Nawab Mohammed 1969 RLW 597 wherein it has been held that in order to get damages it is necessary for the plaintiffs to prove that they were ready and willing to perform their part of the contract. The plaintiffs in that case had failed to prove that they had purchased stamps for drawing out the sale deed thereon or that they had made arrangement for payment of the balance sale price. Mali Bewa and others Vs. Dhunda Samal and anr. AIR 1970 Orissa 161 wherein it has been observed that it is mandatory that not only it should be averred in the plaint but also should be stated in Court during trial, that the plaintiff is ready and willing to perform his part of the contract until the end of the trial. Smt. Dhanbai Vs. Dhunda Samal and anr. AIR 1970 Orissa 161 wherein it has been observed that it is mandatory that not only it should be averred in the plaint but also should be stated in Court during trial, that the plaintiff is ready and willing to perform his part of the contract until the end of the trial. Smt. Dhanbai Vs. Pherozshah 1970 RLW 594 , wherein after considering a number of authorities, the learned Single Judge held that the person claiming specific performance must aver in the pleadings that he was always and is still ready and willing to perform his part of the agreement, and if he fails to do so, then, the plaint does not disclose any cause of action for a suit for specific performance and it should be dismissed under Order 7 Rule 11 CPC. Mahmood Khan and another Vs. Ayub Khan and others AIR 1978 Allahabad 463 wherein a division bench has observed that it is 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, even though the defendant had not raised any plea to that effect in the written statement nor was there any issue. Mere giving proof of the fact will not be a substitute for the necessary averment in the plaint. Gurupadayya Shivayya Hiremath Vs. Shivappa Basappa Gurumanavar AIR 1978 Karnataka 98 wherein it has been held that Section 16(c) makes it obligatory for the plaintiff to aver in his plaint and also to prove that he has performed or has always been ready to perform the essential terms of the contract which are to be performed by him. Bishwanath Mahto Vs. Srimati Janki Devi AIR 1978 Patna 190 wherein also it has been held that the plaintiff must plead and prove that he was ready and willing to perform his part of the contract continuously between the contract and the date of hearing of the suit. Bijai Bahadur and others Vs. Bishwanath Mahto Vs. Srimati Janki Devi AIR 1978 Patna 190 wherein also it has been held that the plaintiff must plead and prove that he was ready and willing to perform his part of the contract continuously between the contract and the date of hearing of the suit. Bijai Bahadur and others Vs. Shri Shiv Kumar and another AIR 1985 Allahabad 223 wherein it has been held that the compliance of the requirements of Section 16(c) of the Specific Relief Act is mandatory in nature and in the absence of necessary averments in this respect, in the plaint, even in the presence of proof that the plaintiff had been ready and willing to perform his part of the contract, the plaintiff cannot hope to succeed in his suit. Even where there is complete absence of a plea in defence on this point, it is the duty of the court to feel satisfied on these twin mandatory requirements of law. Mere proof of readiness and willingness where the essential ingredients are absent in the pleadings, must be deemed to be an exercise in vain. Proof in such cases cannot be regarded as substitute for averments which were absent in the pleadings. Santa Singh Vs. Darbara Singh and others 1986 RLR 663 wherein also, it has been held that readiness and willingness has to be averred and proved. If the averments do not comply with the requirement of Section 16(c) the suit must fail on this count only. 8. Learned counsel for the respondent has also challenged the findings of the trial court on the issue which have been decided against the defendant but I have carefully gone through the evidence on record as also the submissions made at the bar and I am of the opinion that the findings given by the trial court on issues which have been decided in favour of the plaintiff and against the defendant, mainly issue Nos. I and 2, are correct. Learned trial court has discussed the entire evidence in detail and since I am in full agreement with the same, it is not necessary for me to reproduce the whole thing over again. The findings of the trial on issue Nos. 1, 2, 5 and 6 are hereby confirmed. 9. I and 2, are correct. Learned trial court has discussed the entire evidence in detail and since I am in full agreement with the same, it is not necessary for me to reproduce the whole thing over again. The findings of the trial on issue Nos. 1, 2, 5 and 6 are hereby confirmed. 9. 1 have carefully gone through the numerous authorities cited at the bar with regard to the fact whether it is necessary for the plaintiff to aver and to prove that he was always and is still ready and willing to perform his part of the contract. 10. Privy Council as early as in 1928, while deciding the case of Flora Sassoon (supra) considered Section 24 of the Specific Relief Act, 1877, which runs as under:- "24. Specific performance of a contract cannot be enforced in favour of a person (a) who could not recover compensation for its breach; (b) who has become incapable of performing, or violates, any essential term of the contract that on his part remains to be performed. (c) who has already chosen his remedy and obtained satisfaction for the alleged breach of contract; or (d) who, previously to the contract, had notice that a settlement of the subject matter thereof (though not founded on any valuable consideration) had been made and was then in force." 11. Their lordships of the Privy Council held that so far as Act is concerned, there is no express statement that in a suit for specific performance, the averment of readiness and willingness on plaintiff's part is necessary but still, their lordships held that the suit is liable to be dismissed if there is no averment in the plaint to that effect. 12. Section 16(c) of the Specific Relief Act, 1963 runs as under "16. Personal bars to relief. - 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 terns the performance of which has been prevented or waived by the defendant. (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 terns 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 aver performance of, or readiness and willingness to perform, the contract according to its true construction." 13. The above provision makes it obligatory for the plaintiff to aver in his plaint and also 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. If the plaintiff did not plead either in the plaint or at any subsequent stage that he was ready and willing to perform his part of the contract, no decree for specific performance could be passed. Forms No. 47 and 48 given in Appendix -'A' of the First Schedule of CPC also require the plaintiff to state in the plaint "that the plaintiff has been and still is ready and willing specifically to perform the agreement on his part and that the plaintiff has applied to the defendant specifically to perform the agreement on his part, but the defendant has not done so. Our own High Court, after considering numerous cases, in Dhanbai's case (supra), has very specifically held that the person claiming specific performance must aver in the pleadings that he was and is ready and willing to perform his part of the agreement and if he does not do so, then, the plaint does not disclose any cause of action. This view is fully supported by the clear observations of the Supreme Court in Premraj's case (supra). High Courts of Allahabad, Patna, Karnataka and Orissa have also very emphatically held that the compliance of requirement of Section 16(c) is mandatory and in the absence of necessary averment in the plaint, the suit cannot succeed. There is no other contrary view of any other High Court and there cannot be any other view in this aspect. High Courts of Allahabad, Patna, Karnataka and Orissa have also very emphatically held that the compliance of requirement of Section 16(c) is mandatory and in the absence of necessary averment in the plaint, the suit cannot succeed. There is no other contrary view of any other High Court and there cannot be any other view in this aspect. In Kripal Singh's case (supra) also, the same view has been expressed by the division bench, though on facts the suit for specific performance was decreed in that case. Similarly, in the case of Vadu (supra) the suit for specific performance was decreed as the court found that there was substantial and due compliance of the provisions of Section 16(c) of the Act. So also in the case of Gulam Mohd. (supra), the suit for specific performance was decreed because the plaintiff had averred in the plaint that he was ready and willing to pay the correct purchase price, though he had not averred that he was ready and willing to tender draft of the conveyance and to pay the stamp duty etc. In Raj Kumar's case (supra), the court found that the plaintiff was ready and willing to perform his part of the contract and therefore, the suit was decreed. In Kripa and others (supra), the court found that the plaintiff was ready and willing to perform the contract and therefore, the suit was decreed. The Court again in Santa Singh's case (supra) has asserted that the plaintiff must aver and plead that he is ready and willing to perform his part of the contract, and if the averment in the plaint does not comply with the requirement of Section 16(c)-the suit must fail, so there is no dispute and it is well settled and established that compliance of the requirement of Section 16(c) of the Act is mandatory in nature. The plaintiff must aver in the plaint that he has always been ready and willing and still is ready and willing to perform his part of the contract. The plaintiff must aver in the plaint that he has always been ready and willing and still is ready and willing to perform his part of the contract. In the absence of such pleadings, the suit does not disclose any cause of action for a decree for specific performance, and mere proof of readiness and willingness to perform his part of the contract cannot be regarded as a substitute for averments if they are absent in the pleadings and the plaintiff cannot succeed in a suit for specific performance unless he pleads as well as proves that he has always been ready and willing and is still ready and willing to perform his part of the contract; but each case has to be decided on its own facts and the court will have to examine the plaint as a whole as to whether there is any such averment or not. Law does not insist upon any particular language or specific form in which the averment as to plaintiff's readiness and willingness ought to be made, language is not that important but the crucial thing is that totality of the averments made in the plaint must indicate the readiness and willingness of the plaintiff, even though, by necessary inference. Merely because stamp papers for drawing up the sale deed or getting the draft fo the sale deed prepared, were not purchased and handed over to the defendant, it cannot be said that the respondent was not ready and willing to perform his part of the contract. Readiness and willingness of a person to perform his part of the contract cannot be judged in isolation from the other facts and circumstances and background of the whole matter. Readiness and willingness of a person to perform his part of the contract cannot be judged in isolation from the other facts and circumstances and background of the whole matter. In the present case, the plaintiff in para 5 of his plaint has asserted as under : " ;g fd lkaofy;k iq= cYnso dk ;g mDr nkok ,l0Mh0vks0lk0 dh U;k;ky; ls rk0 3-3-76 dks [kkfjt dj fn;k x;k fd ftlds ckn feu oknh us izfroknh ls dbZ ckj esjs gd esa jftLV~h c; djkus dk rdktk fd;k ijUrq izfroknh us lkaofy;k iq= cYnso ls iSls ysdj mlds gd esa vihy ls QSlyk djk nsus dh r; dj yh gS vkSj blfy;s esjs gd esa c; dh jftLV~h djkus ls Vky cky djrk gS vkSj vc ,d gQrk ls drbZ bUdkj djrk gS fd tks nkok gktk ds fy;s fcuk; nkok o fcuk; eq[kkLer gS vkSj blfy, nkok gktk rdehy eqgk;nk is'k fd;k tkrk gSA " A perusal of the above assertion made in the plaint shows that after the decision of the case by the Sub Divisional Officer, the plaintiff approached the defendant several times to get the registration done in his favour but the defendant went on avoiding and ultimately said 'no', and therefore, the plaintiff had to file the present suit. It has further been averred in the plaint that the plaintiffs is always ready to pay the balance amount of Rs. 5000/- but the defendant is not ready and willing to execute and get the sale deed registered. There was no assertion in the written statement that the plaintiff has not averred that he was always ready and willing to perform his part of the contract, therefore, there is no cause of action and the suit should be dismissed on that count nor the trial court framed any issue on this point and the parties proceeded to adduce evidence. In the evidence, the plaintiff has proved that he has always been and is still ready and willing to perform his part of the contract and the defendant has failed to rebut that evidence. The defendant had been trying to establish that he never executed the agreement dated 9.12.1975 nor received the consideration of Rs. 10,000/- at that time. In the evidence, the plaintiff has proved that he has always been and is still ready and willing to perform his part of the contract and the defendant has failed to rebut that evidence. The defendant had been trying to establish that he never executed the agreement dated 9.12.1975 nor received the consideration of Rs. 10,000/- at that time. In this view of the matter, finding of the learned trial court on Issue No. 3 is reversed and it is decided in favour of the plaintiff and it is held that the plaintiff had been ready and willing to perform his part of the contract and to pay the balance amount of Rs. 5000/- to the defendant. 14. As regards Issue no. 4, the plaintiff has asserted in the plaint itself that the suit filed by Sanwalia had been dismissed by the Sub Divisional Officer on 3.3.1976 and he had filed the present suit on 22.6.1976 but mere pendency of the appeal will not dis-entitle the plaintiff from filing the suit. If there was an injunction against the defendant he could not have executed the sale-deed but nothing prevented nor came in the way of the plaintiff in filing the suit for specific performance of his contract. The decree could not have been passed if the suit was pending or in an appeal, there was an injunction against the defendant. It is admitted at the bar by the learned counsel for the parties that the appeal had been dismissed by the Revenue Appellate Authority and there is no injunction subsisting or in force against the defendant from executing the sale-deed. The finding of the trial court on Issue no. 4 is reversed and Issue No. 4 is also decided in favour of the plaintiff and it is held that the suit is not pre-matured. 15. In the result, this appeal is partly allowed, the judgment and decree of the learned trial court are modified and the suit of the plaintiff for specific performance is decreed. The parties will bear their own costs throughout.Appeal partly allowed. *******