Judgment B.L.Yadav, J. 1. Whether the averment and proof under Sec. 16(C) of the Specific Relief Act, 1963 (Compendiously the Act) is to be proved by the plaintiff against the subsequent purchaser when the executant of the agreement for sale did not contest the suit is the substantial questions of law involved in this plaintiffs second appeal in a suit for specific performance of contract in respect of the suit land on the basis of Mahadanama (agreement for sale) dated 19th April, 1980 executed by defendant No. 1in respect of 3 decimals of land appertaining to Cadestral Survey Plot No. 1602 and Revisional Survey Plot No. 3413 situate at Mouza Rasalpur, Police Station Dumra-Sitamarhi. 2. Chronology of events leading to the surfacing of dispute may be briefly noticed. The plaintiff-appellant filed a suit with the averments that Smt. Anmolia Ojhain, aunt of the plaintiff, executed a deed of gift in favour of defendant Nos. 1 and 2, who are full brothers and defendant No. l was the Karta of Joint Hindu Family and was in service in Assam. As the family needed money to meet legal expenses and to pay petty debts, defendant No. 1 approached the plaintiff to obtain a sale deed in respect of 3 decimals, of land appertaining to C.S.P. No. 1602 and R.S.P. No. 3413 as indicated above and the consideration was settled at Rs. 1800.00 . A sum of Rs. 500.00 as part payment was . paid to defendant No. 1, who executed Mahadanama on 19th April, 1980 and promised to excute sale deed on 19th July, 1980 after obtaining permission from the Settlement Officer, Consolidation but on that date even though plaintiff made request and was ready to pay balance of amount, the sale deed was not executed by defendant No. 1. The plaintiff went to registration office but defendant No. 1 was not prepared to execute sale deed, rather subsequently on 17th August, 1981 he executed sale deed in favour of defendant No. 3, who had got knowledge of the execution of Mahadanama. It was averred in the plaint specifically (as was clear from the narration of the facts made by the Appellate Court at the close of para-3 of the judgment) that the plaintiff has been and was ready and willing to perform essential part of contract but the defendants Were not ready to perform their part of contract. It was averred in the plaint specifically (as was clear from the narration of the facts made by the Appellate Court at the close of para-3 of the judgment) that the plaintiff has been and was ready and willing to perform essential part of contract but the defendants Were not ready to perform their part of contract. Hence the necessity for the suit arose. 3. Defendant Nos. 1 and 2 (donees from Anmolia Ojhain) and particularly defendant No. l, the executant of the agreement for sale did not contest the suit and the suit was decree exparte against them. As is clear from the statements made by the Trial Court as also by the Appellate Court that only subsequent purchaser contested the suit denying the averments made in the plaint and alleged that the subsequent sale deed was genuine and legal and that the agreement for sale was not legal and the suit was liable to be dismissed. 4. The Trial Court framed the following issues: (a) Is the suit as framed maintainable? (b) Has the plaintiff got cause of action or right to sue? (c) Is the suit barred by limitation, estoppel, waiver and acquiescence? (d) Whether the Mahadanama and the Kewala executed by defendant No. 1 in favour of the plaintiff was genuine and valid? (e) Whether defendant No. 3 had prior knowledge of the Mahadanama executed by defendant No. 3 was valid, genuine and for consideration and (f) to what relief or reliefs, if any the plaintiff is entitled? 5. The Trial Court by judgment and decree dated 13.9.1992 decreed the suit exparte against defendant Nos. 1 and 2 and on contest against defendant No. 3 the trial court recorded the findings under para-11 of the judgment that defendant No. 1 was the right person to deny the genuineness of the Mahadanama but defendant No. 1 did not choose to appear for the reasons best known to him. Ultimately it was held that Mahadanama was a genuine document. The plaintiff was ready and willing to perform essential part of the contract. It was also held that defendant No. 3 the subsequent purchaser had got knowledge of the agreement for sale. The suit was accordingly decreed. 6. Against the decree of the Trial Court an appeal was preferred by defendant No. 3 before the lower Appellate Court. The plaintiff was ready and willing to perform essential part of the contract. It was also held that defendant No. 3 the subsequent purchaser had got knowledge of the agreement for sale. The suit was accordingly decreed. 6. Against the decree of the Trial Court an appeal was preferred by defendant No. 3 before the lower Appellate Court. It was held by the Lower Appellate Court that the execution of the Mahadanama (Ext.l) by defendant No. l in favour of the plaintiff was proved. While deciding Point No. (ii) it was held that the plaintiff was not ready and willing to perform his part of contract even though this aspect about readiness and willingness of the plaintiff could have been denied or controverted by defendant Nos. 1 and 2 but they did not contest and suit was decreed exparte against them and ultimately the appeal was allowed and the suit was dismissed. Against that decree the present Second Appeal has been filed by the plaintiff. 7. Learned Counsel for the appellant contended that as defendant No. l was the only person, who had executed the Mahadanama (agreement for sale dated 19.4.1980) in favour of the plaintiff-appellant, it is he (defendant No. l) who could have denied the averments as required by Sec. 16(c) of the Act and he could prove that as enjoined by Sec. 16(c) of the Act the plaintiff filed to aver and prove that he was ready and willing to perform the essential terms of the contract which were to be performed by him. But defendant No. l or defendant No. 2 failed to contest the suit which was decreed against them. (defendant Nos. 1 and 2). They did not prefer either First Appeal or Second Appeal, nor they filed any restoration application. The subsequent purchaser, defendant No. 3 was only concerned with his sale deed. He was a purchaser for value without notice. He could not know about the agreement for sale. The subsequent purchaser could not say that plaintiff failed to aver and prove that he was ready and willing to perform his part of contract. Requirement of Sec. 16(c) of the Act were personal in nature. The plaintiff has to prove the execution of Mahadanama (agreement for sale) or to prove that he was ready and willing to perform his part of contract. The learned Counsel learned heavily on Jugraj Singh and Anr. Requirement of Sec. 16(c) of the Act were personal in nature. The plaintiff has to prove the execution of Mahadanama (agreement for sale) or to prove that he was ready and willing to perform his part of contract. The learned Counsel learned heavily on Jugraj Singh and Anr. v. Labh Singh and Ors. AIR 1995 S.C. 945 . 8. Learned Counsel for the respondents, on the other hand, refuted the submissions of the learned Counsel for the appellant and urged that the subsequent purchaser has right to prove that plaintiff has failed to aver in the plaint that he was ready and willing to perform the essential terms of the contract and the findings recorded by the Lower Appellate Court are findings of fact and suit has correctly been dismissed. 9. Having evaluated the submissions of the learned Counsel for the parties of the learned Counsel for the parties the substantial questions of law involved in this Second Appeal are as to whether defendant No. 3, the subsequent purchaser could disapprove or rebut the averments made in the plaint that the plaintiff was ready and willing and has been ready and willing to perform the essential terms of contract, which are to be performed by him, particularly when the defendant No. l the executant of the agreement for sale did not contest the suit and the suit wad decree against him, and whether the plaintiff-appellant has proved the requirements of Sec. 16(c) of the Act? 10. Both these points may be discussed together. Ex abundanti cautela the statutory provision of Sec. 16(c) of the Act to the extent it is relevant, is extracted: 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 terms the performance of which has been prevented or waived by the defendant. 11. Before proceeding further what is to be emphasised is that the provision of Sec. 16(c) of the Act is a new provision even though in other details the present Sec. 16(c) corresponds to Sec. 24 of the old Act Specific Relief Act, "1877. The present Sec. 16(c) is mandatory in nature and also prohibitory. 11. Before proceeding further what is to be emphasised is that the provision of Sec. 16(c) of the Act is a new provision even though in other details the present Sec. 16(c) corresponds to Sec. 24 of the old Act Specific Relief Act, "1877. The present Sec. 16(c) is mandatory in nature and also prohibitory. Sec. 16(c) enacts statutory requirement for averment in the plaint and the plaintiff was required to prove the same that he has always been ready and willing to perform the essential terms of the contract which are to be performed by him. The repudiation of the contract does not relieve the plaintiff of his obligation. Not only it has been to be averred in the plaint but also it should be proved by stating in the Court during the trial that plaintiff has performed and has always been ready and willing to perform the essential terms of contract which are to be performed by him. What is to be emphasised is that the expression aver and prove are entirely two different things. The expression aver means that it should be asserted or specifically mentioned in the plaint by the plaintiff. The expression prove indicates that the said averment which is pleaded in the plaint must be proved by leading positive evidence in course of the trial. It goes without saying that the question of proof will arise only if the averment has been made in the plaint. It is accordingly clear that it is imperative on the part of the plaintiff to aver in the plaint that he has performed and has always been ready and willing to perform the essential terms of the contract. The said averment is substantially in the nature of cause of action. In other words, unless the plaintiff has made averments in the plaint to that effect, he shall not get any cause of action either to file the suit or to prove the same at the trial. See Anant Prasad V/s. Jagarnath Sharan Sahai 1986 B.L.J. 164. In that case Hon ble Prabha Shankar Mishra, J. (as his Lordship then was) held that the suit for specific performance of contract requires special pleadings particularly in the form of Sec. 16(c) of the Act. 12. A similar view was taken in Narendra Bahadur Singh V/s. Baijnatli Singh and Anr. -- . 13. In that case Hon ble Prabha Shankar Mishra, J. (as his Lordship then was) held that the suit for specific performance of contract requires special pleadings particularly in the form of Sec. 16(c) of the Act. 12. A similar view was taken in Narendra Bahadur Singh V/s. Baijnatli Singh and Anr. -- . 13. I am reminded of an old Latin Maxim Ut Res Valeat Potius Pereat, which means that Court would avoid that construction which would fail to relieve the manifest purpose of legislation. In other words the purpose behind enactment of Sec. 16(c) has to be looked into Specific performance of contract is an equitable remedy. Secs. 15 to 19 of the Act deal with the persons against whom contracts may be specifically enforced. To put it differently Sec. 15 deals with general Rules of procedure, Whereas Sec. 16 to 18 of the Act indicate special grounds of defence available to defendant founded upon plaintiffs conduct. The conduct of the plaintiff was a material aspect to be take into account, while granting a relief in a suit for specific performance of the contract. Sec. 16, in my opinion, does not deal primarily with nature of contract but deals solely in respect of Acts and conduct of the plaintiff. To put it differently Sec. 16 deals with the objections personal in nature with the plaintiff. It is simply because in a suit for specific performance of contract the court has also to look to the conduct of the plaintiff can be questioned either by the executant of the agreement for sale or by the Court. But it cannot be questioned by the subsequent purchaser simply because the fact that there is a valid contract is not itself sufficient to grant a decree for specific performance of contract. But the conduct of the plaintiff in regard to his part of contract, or his conduct in respect of performance of contract has to be seen by the Court. This is the reason that now it was statutorily been required that plaintiff must aver and prove that he has performed his part and is still ready and willing to perform essential terms of the contract. 14. This is the reason that now it was statutorily been required that plaintiff must aver and prove that he has performed his part and is still ready and willing to perform essential terms of the contract. 14. The plaintiffs averments in the plaint and its proof that he has performed in the past and was still ready and willing to perform essential terms of contract, were personal in nature and pertains to personal conduct, and that could be denied or rebutted by the executant of the agreement for sale. In the instant case neither defendant No. l nor defendant No. 2 contested the suit and the suit was decreed against them exparte. They did not prefer any appeal before the lower Appellate Court, nor they filed any application for restoration. Consequently the suit proceeded exparte against them. The suit having been decreed against them exparte, it implies that plaintiff has got the decree against defendant No. 1and defendant No. 2. The subsequent purchaser was interested to safeguard his subsequent sale and he was to prove that he was a bona fide purchaser for value without notice. This aspect of the case that the suit was decreed exparte against defendants 1 and 2, the executant of the agreement for sale, was not considered by the Lower Appellate Court and on the plea of the subsequent purchaser it has been held that the plaintiff has been held that the plaintiff has failed to aver in the plaint and to prove that he was ready and willing to perform his part of contract, whereas from the perusal of the plaint and also from perusal of the plaint and also from perusal of para-3 of the judgment of the lower Appellate Court it is manifest that the plaintiff did aver in the plaint and proved it. The following observations of lower Appellate Court in para-3 may be noticed: His further case was that he had always been ready to perform his part of contract and was still ready to perform his part of contract but the defendants were not ready to perform their part of contract. 15. It has also been stated in the plaint that plaintiff went to the defendants with the balance of the consideration money and asked him to accept the balance money and to execute the sale deed but the defendants were not ready to execute the sale deed. 15. It has also been stated in the plaint that plaintiff went to the defendants with the balance of the consideration money and asked him to accept the balance money and to execute the sale deed but the defendants were not ready to execute the sale deed. The plaintiff has also sent notice through lawyer by registered post and also proved the same (Ext.4). The plaintiff has filed postal receipt relating to registered letter. The said postal receipt is Ext. 5. On perusal of Ext. 4 it appears that on 10th July, 1980 the notice was sent to Parshuram Chaudhary, the executant of agreement for sale and a request was made to execute the sale-deed and to accept the remaining part of the consideration. 16. It was however pointed out by the learned Counsel for the respondents that under para-10 of the judgment of the lower Appellate Court, it was stated that no evidence has been adduced by the plaintiff that in between 19th July, 1980 and the date of filing of the suit any notice has been given to Parshuram Chaudhary by the plaintiff making request to him to receive the balance of the consideration. But the statement of fact in para-9 of the judgment contradicts this statement as held earlier in para-9 that notice (Ext. 4) was sent to Parshuram Chaudhary by the plaintiff through his Advocate M.L. Karn (page 7, bottom at the lower Appellate Court judgment). 17. In Jugraj Singh and Anr. V/s. Labh Singh and Ors. AIR 1995 S.C. 945 (supra) about scope of Sec. 16(c) of the Act, it has been held by the Apex Court as follows: That plea is specifically available to the vendor/defendant. It is personal to him. The subsequent purchasers have got only the right to defend their purchase on the premise that they have no prior knowledge of the agreement of sale with the plaintiff. They are bonafide purchasers for valuable consideration. Though they are necessary parties to the suit, since any decree obtained on the subsequent purchasers, the plea that the plaintiff must always be ready and willing to perform his part of contract must be available only to the vendor or his legal representatives, but not to the subsequent purchasers. The High Court, therefore, was right in rejecting the petitioners contention and rightly did not accept the plea. We do not find any ground warranting interference. 18. The High Court, therefore, was right in rejecting the petitioners contention and rightly did not accept the plea. We do not find any ground warranting interference. 18. The aforesaid is the least declaration of law by their Lordships of the Supreme Court and the same is binding under Article 141 of the Constitution. The plea about readiness and willingness on part of plaintiff was specifically available to the executant defendant No. 1 only. In the instant case, even defendant No. 1 had not contested the suit, the suit has been proceeded exparte and has been decreed. It was personal to defendants 1 and 2 and not to subsequent purchaser. Further subsequent purchaser has no knowledge about agreement for sale. Defendant No. 3 has to prove only that he was subsequent bona fide purchaser for value without notice of agreement for sale. Even though the subsequent purchaser, defendant No. 3, was necessary party but he could not rebut the averments either in the plaint or the proof thereof by the plaintiff that he was ready and willing to perform his part of the essential terms of contract. 19. In the instant case, even though on a bare reading of the plaint and the statement of facts in the judgment of the lower Appellate Court it is clear that this fact was stated in the plaint that plaintiff was ready and willing to perform his part of contract but defendants did not accept the remaining part of consideration money, nor defendant No. 1executed sale deed. In my opinion, by oral and documentary evidence including notice (Ext. 4) sent through advocate and the receipt thereof (Ext.5) and other evidence sufficiently proved that the plaintiff has made averments that he has performed in the past and even at present he was ready and willing to perform essential part of contract and the same averment was proved by leading a cogent evidence. The findings recorded by the Lower Appellate Court that the plaintiff has failed to prove that he was ready and willing to perform his part of contract was unwarranted in law and under the circumstances of the case and the findings of Lower Appellate Court are perverse. 20. The findings recorded by the Lower Appellate Court that the plaintiff has failed to prove that he was ready and willing to perform his part of contract was unwarranted in law and under the circumstances of the case and the findings of Lower Appellate Court are perverse. 20. In view of the discussion made hereinbefore the Lower Appellate Court has erred in law and has incorrectly recorded the finding by over-looking the material evidence and pleadings on record that the plaintiff has failed to prove that he was ready and willing to perform his part of contract. Findings recorded by the Trial Court and the reasons given by the Trial Court have not been reversed by the lower Appellate Court. In the judgment of reversal, as provided under Order XLI, Rule 31 of the Code of Civil Procedure the reasons given by the Trial Court were to be considered and reversed by the lower Appellate Court. It was the duty of the lower Appellate Court while reversing the judgment of the Trial Court to consider the reasons given by the Trial Court but the same has not been done S.V.R. Mudaliar V/s. Mrs. Rajabu F. Buhari -- . 21. In view of the premises aforesaid the decree of the lower Appellate Court cannot be sustained. Resultantly the present Second Appeal succeeds and the same is allowed. The decree of the lower Appellate Court is set aside and that of the Trial Court restored, and the suit of the plaintiff is decreed with cost throughout.