JUDGMENT 1. - Petitioner-plaintiff has laid this petition under Article 227 of the Constitution of India to challenge the impugned order dated 30.09.2015 (Annex.8) passed by the learned District Judge, Udaipur (for short 'the learned court below') whereby learned court below has rejected the application of the petitioner-plaintiff under Order 14, Rule 5 read with Section 151 CPC with cost of Rs. 2,000/-. 2. There is a checkered history of the case but for convenience the facts in brevity are that petitioner-plaintiff filed a suit for specific performance of contract against the first respondent and further a relief was craved for possession of the property. Yet another prayer was made seeking direction against all the respondents to execute registered instrument of sale in his favour for the consideration amount of Rs. 7,25,000/- which was mentioned in the agreement to sale. The learned court below issued summons to the respondents-defendants and none appeared for the respondents. Therefore, ex parte proceedings were taken against them and finally ex parte decree was passed by the learned court below on 22.11.1994. Against the ex parte judgment and decree of the learned court below, the respondent Nos. 2 & 3 laid application under Order 9, Rule 13 CPC for setting aside ex parte decree but the said effort of the respondents proved abortive and the learned court below rejected their application by order dated 11.02.2009. Being aggrieved of the said order, the respondent Nos. 2 & 3 filed two separate miscellaneous appeals before this Court which were registered as CMA Nos. 684/2009 & 762/201 respectively. The appeals were finally heard by learned Single Judge on 13.07.2015 and both appeals were allowed whereby the impugned order dated 11.02.2009 rejecting the application for setting aside ex parte decree as well as ex parte decree were set aside and the matter was remanded back to the learned court below for deciding it afresh within six months. After remand, separate written statements were filed by both the respondent Nos. 2 and 3. However, the first respondent has not participated in the proceedings. It is significant to mention here that in the interregnum in execution of ex parte decree conveyance of suit property is executed in favour of petitioner and he was put into possession of the same. 3. The learned court below on the basis of pleadings of rival parties settled six issues for determination on 04.09.2015. It is significant to mention here that in the interregnum in execution of ex parte decree conveyance of suit property is executed in favour of petitioner and he was put into possession of the same. 3. The learned court below on the basis of pleadings of rival parties settled six issues for determination on 04.09.2015. Subsequent to that, an endeavour was made by the petitioner for seeking deletion of issue Nos. 1, 2 and 6 and framing following three additional issues:- " d- vk;k oknh ,oa izfroknh la[;k&1 us vU; yksxksa ds lkFk feydj izfroknh la[;k 2 o 3 ds fodz; ds ckn iqjkuh rkjh[k esa LVkEi [kjhndj bdjkj rS;kj fd;k gS tks QthZ gS\ [k- vk;k izfroknh la[;k 2 o 3 ln~Hkkoh dzsrk gS ftUgsa oknh ds bdjkj dh tkudkjh ugha Fkh\ x- vk;k tc rd oknh izfroknh la[;k 2 o 3 ds fodz; i= dks voS/k ?kksf"kr ugha djk ys lafonk dh ikyuk dh fMdzh ikfjr ugha dh tk ldrh gS\ " 4. For eliciting a favourable order of the learned court below, application (Annex.7) is submitted by the petitioner. In order to crave requisite relief in the application, the petitioner has averred in the application that looking to the nature of the suit which is for specific performance of contract wherein the first respondent-defendant has not joined the issue to controvert the allegations about his readiness and willingness to perform his part of contract, such pleadings are un-controverted and unimpeachable. It is further averred that to the extent of pleadings in this behalf, respondent Nos. 2 and 3 are not authorised to make any submissions and as such issue Nos. 1 and 2 are not significant and liable to be deleted. While referring to the pleadings of the respondent Nos. 2 and 3 wherein they have categorized agreement to sale which was executed in favour of the petitioner as spurious document and projected themselves as bona fide purchasers, the petitioner has submitted in the application that all these allegations are required to be proved by the respondent Nos. 2 and 3 and, therefore, proposed three additional issues mentioned to supra are required to be framed by putting burden of proving them on these respondents. One more fact is pleaded in the application that plea of respondent Nos. 2 and 3 and, therefore, proposed three additional issues mentioned to supra are required to be framed by putting burden of proving them on these respondents. One more fact is pleaded in the application that plea of respondent Nos. 2 and 3 to resist the decree for specific performance of the contract on the anvil of a positive assertion in the written statements that such decree cannot be granted to the petitioner in want of prayer for cancellation of sale deed executed in their favour requires determination by framing additional issue with resting onus of the same on respondents. 5. The learned court below, after hearing the rival submissions, by the impugned order rejected the application of the petitioner. 6. Dr. Sachin Acharya, learned counsel for the petitioner submits that considering the lis involved in the matter which is for specific performance of contract in want of denial by the first respondent i.e. executant of agreement to sale, the question relating to readiness and willingness of the petitioner-plaintiff to perform his part of the contract has gone insignificant and, therefore, petitioner is not required to prove his readiness and willingness to perform his part of contract. Elaborating his submissions, Dr. Sachin Acharya has urged that non-participation of the first respondent in the proceedings of the suit has emerged out a clear scenario that averments of the petitioner in this behalf are un-controverted giving rise to a situation wherein issue Nos. 1 and 2 have gone redundant and, therefore, issue Nos. 1 and 2 are liable to be deleted. Dr.Acharya has vehemently argued that respondent Nos. 2 and 3 who are alien so far as agreement to sale is concerned, cannot tender any evidence to controvert the un-impeached pleadings of the petitioner in this behalf and, therefore, his prayer for deleting the issue Nos. 1 and 2 was just and bona fide which ought to have been acceded to by the learned court below. 7. Dr. Acharya would contend that respondent Nos. 2 and 3 in their written statements have set out a specific case that agreement to sale which is the basis of the suit is collusive and spurious document which was entered into by the petitioner and the first respondent is required to be proved by respondent Nos. 7. Dr. Acharya would contend that respondent Nos. 2 and 3 in their written statements have set out a specific case that agreement to sale which is the basis of the suit is collusive and spurious document which was entered into by the petitioner and the first respondent is required to be proved by respondent Nos. 2 and 3 and, therefore, proposed additional issues are required to be framed in this behalf after deleting issue No. 6, else the final outcome of the suit may result in miscarriage of justice. 8. Learned counsel for the petitioner contends that issue of readiness and willingness to perform his part of contract had its fait accompalion execution of sale deed in his favour in execution of ex parte decree and, therefore, any plea in this behalf by subsequent purchasers i.e. respondent Nos. 3 & 4 would be of no credence whatsoever. He, therefore, argues that impugned order is vitiated inasmuch as there is no inkling in this behalf in the order. 9. Lastly, learned counsel submits that objection of the respondents that suit is not maintainable without there being prayer for cancellation of sale deed executed in their favour is yet another contentious question which cannot be determined without framing an additional issues by substituting issue No. 6 and as such the proposed additional issues in the application in this behalf ought to have found favour from the learned court below. In substance, learned counsel for the petitioner submits that non-framing of additional issues as craved in the application has rendered the impugned order vulnerable. 10. To substantiate his arguments, learned counsel for the petitioner has placed reliance on a decision of Hon'ble Apex Court in Jai Prakash Gupta (Dead) through LRs. v. Riyaz Ahamad & Anr., (2009) 10 SCC 197 . In this verdict, Hon'ble Apex Court while dilating on court's power to amend issues under Order 14, Rule 5 and 1 CPC while carving out exceptions to rule that suit to be tried on the cause of action as it existed on the date of institution of suit by taking into account events subsequent to institution of suit held. 11. In this verdict, Hon'ble Apex Court while dilating on court's power to amend issues under Order 14, Rule 5 and 1 CPC while carving out exceptions to rule that suit to be tried on the cause of action as it existed on the date of institution of suit by taking into account events subsequent to institution of suit held. 11. That when the relief as originally claimed becoming inappropriate, or it becoming necessary to base court's decision on altered circumstances in order to shorten litigation between parties or to do complete justice between parties resort to exception to the rule is warranted for moulding the relief. 12. In M.M.S. Investments, Madurai & Ors. v. V. Veerappan & Ors., (2007) 9 SCC 660 Hon'ble Apex Court examined the scope and applicability of Sections 16(c) & 19(d) of the Specific Relief Act, 1963 (for short 'the Act of 1963') vis-a-vis plea of readiness and willingness raised by the subsequent purchaser in a suit for specific performance of contract after conveyance of the suit property. The Court held:- "6. Questioning the plea of readiness and willingness is a concept relatable to an agreement. After conveyance the question of readiness and willingness is really not relevant. Therefore, the provision of the Specific Relief Act, 1963 (in short the 'Act') is not applicable. It is to be noted that the decision in Ram Awadh's case relates to a case where there was only an agreement. After the conveyance, the only question to be adjudicated is whether the purchaser was a bona fide purchaser for value without notice. In the present case the only issue that can be adjudicated is whether the appellants were bona fide purchasers for value without notice. The question whether the appellants were ready and willing is really of no consequence. In Ram Awadh's case the question of the effect of a completed sale was not there. Therefore, that decision cannot have any application so far as the present case is concerned. Once there is a conveyance the concept would be different and the primary relief could be only cancellation. 7. Learned counsel for the appellants submitted that since the purchasers step into the shoes of the vendor, the question of readiness and willingness can be pressed into service. This plea is clearly without substance because the purchasers had to prove that they are bona fide purchasers for value without notice. 7. Learned counsel for the appellants submitted that since the purchasers step into the shoes of the vendor, the question of readiness and willingness can be pressed into service. This plea is clearly without substance because the purchasers had to prove that they are bona fide purchasers for value without notice. The readiness and willingness aspect will not give any relief to them. That being the position, the appeal is sans merit and is dismissed. There will be no order as to costs." 13. Per contra, learned counsel for the respondent Mr. Rajesh Choudhary submits that learned court below while examining the prayer of the petitioner for amendment/deletion of the issues has exercised its discretion judiciously to decline the same by the impugned order which requires no interference in the limited scope of judicial review under Article 227 of the Constitution of India. Mr.Choudhary would contend that prayer for deletion of issue Nos. 1 and 2 is per se insignificant inasmuch as issue No. 3 is couched with a language to prove readiness and willingness to perform his part of the contract by resting burden on the petitioner and, therefore, no fruitful purpose can be served by deletion of issue Nos. 1 and 2. Elaborating his submissions, Mr.Choudhary argued that learned court below has examined the application of the petitioner threadbare on the touchstone of Section 16(c) of the Act of 1963 which mandatorily castes burden on the plaintiff to prove his readiness and willingness to perform his part of the contract and, therefore, no interference with the impugned order is warranted. 14. While joining the issue with the petitioner on the additional issues proposed in the application, learned counsel for the respondent would contend that there is no need for framing additional issues inasmuch as issue No. 6 framed by the learned court below is essentially thriving on the status of the respondents as bona fide purchasers. He, therefore, submits that there is no need to frame additional issues and order impugned is not liable to be tinkered with. 15. Learned counsel further submits that Section 16(c) of the Act of 1963 envisages with clarity and precision that in a suit for specific performance of contract, the plaintiff is required to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract. 15. Learned counsel further submits that Section 16(c) of the Act of 1963 envisages with clarity and precision that in a suit for specific performance of contract, the plaintiff is required to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract. Therefore, according to the learned counsel, it is mandated by law that plaintiff is required to plead and prove 'readiness and willingness' for obtaining relief of grant of specific performance and as such there is hardly any scope for interference with the impugned order. Lastly, learned counsel has urged that impugned order has been passed by the learned court below in exercise of its discretion judiciously and, therefore, the same cannot be made subject matter of judicial scrutiny in exercise of supervisory jurisdiction of this Court. 16. In support of his contention, learned counsel for the respondent has placed reliance on a decision of Hon'ble Apex Court in J.P. Builders & Anr. v. A. Ramadas Rao & Anr., (2011) 1 SCC 429 wherein Hon'ble Apex Court while examining the rigour of Section 16 (c) of the Act of 1963 held,- "27. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non-compliance with this statutory mandate, the court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. "Readiness and willingness" to perform the part of the contract has to be determined/ascertained from the conduct of the parties." 17. I have heard learned counsel for the parties, perused the impugned order and scanned the materials available on record. 18. The core issue which requires judicial scrutiny in the instant petition is power of the court to amend and strike out the issues by exercising power under Order 14, Rule 5 CPC. A bare reading of the provision makes it amply clear that making amendment or striking out an issue is within the sole discretion of the court. 18. The core issue which requires judicial scrutiny in the instant petition is power of the court to amend and strike out the issues by exercising power under Order 14, Rule 5 CPC. A bare reading of the provision makes it amply clear that making amendment or striking out an issue is within the sole discretion of the court. Therefore, while examining the legality and propriety of such order, this Court is required to see whether in the backdrop of facts and circumstances of the case, the learned court below has exercised its discretion judiciously or not. Upon examining the application submitted by the petitioner, there remains no quarrel that deletion of issue Nos. 1 and 2 on the face of it cannot absolve the petitioner from proving his readiness and willingness to perform the essential terms of the contract. It may be noticed here that when issue No. 3 is already there casting burden on the petitioner to prove the same, in my considered opinion, seeking deletion of issue Nos. 1 and 2 is merely an ambitious plea which is not of substance. Moreover, being the plaintiff, petitioner is required to plead and prove his readiness and willingness for obtaining relief of specific performance as mandated by Section 16(c) of the Act of 1963. 19. The legal precedent in M.M.S.Investments, Madurai (supra) on which learned counsel for the petitioner has placed reliance cannot render any assistance to the petitioner as the same is factually distinguishable. True it is that in compliance of ex parte decree passed in favour of the petitioner, sale deed was executed in his favour but then, the said sale deed cannot absolve the petitioner from proving his readiness and willingness to perform the essential terms of the contract. On the touchstone of observations made by this Court while deciding CMA Nos. 684/2009 & 762/2010 by order dated 30.07.2015, wherein learned Single Judge of this Court has taken care of sale deed executed in favour of the petitioner pursuant to execution of ex parte decree and has annulled all consequential orders passed in execution proceedings thereby setting at naught the sale deed executed in favour of the petitioner. The Court held,- "12. 684/2009 & 762/2010 by order dated 30.07.2015, wherein learned Single Judge of this Court has taken care of sale deed executed in favour of the petitioner pursuant to execution of ex parte decree and has annulled all consequential orders passed in execution proceedings thereby setting at naught the sale deed executed in favour of the petitioner. The Court held,- "12. Consequently, these appeals are allowed and as result of the same, the impugned order dated 11.02.2009 as well as the ex-parte decree dated 22.11.1994 and the consequential orders passed in the execution proceedings are quashed and set aside. The matter is restored back to the learned District Judge, Udaipur for fresh trial from the stage the matter was proceeded ex parte against the present appellants-defendants. In the circumstances of the case, the trial is directed to be expedited and concluded within a period of six months from today positively. Since under the ex parte decree in question, the plaintiff-decree holder was put in possession in execution proceedings, the status quo of his possession shall be maintained only for a period of six months from today, till the said suit is re-decided upon fresh trial by the learned District Judge, Udaipur." 20. In the peculiar facts and circumstances of the case, the judgment of Hon'ble Apex Court in Jai Prakash Gupta (Dead) through LRs (supra) cannot render any assistance to the petitioner so as to depart from general rule that suit is to be tried on the cause of action which existed on the delay filing of the suit. Moreover, ratio decidendi of the verdict in M.M.S. Investments Madurai & others (supra) too cannot come to the rescue of the petitioner after annulment of conveyance of the suit property in his favour by this Court while deciding CMA Nos. 684/2009 & 762/2010 on 30.07.2015 . Therefore, the contention of the petitioner that requisite orders for striking out issue Nos. 1 and 2 and framing of three additional issues falls flat. 21. It is in that background, the ratio decidendi of the judgment in J.P. Builders (supra) on which learned counsel for the respondent has placed reliance can be pressed into service by applying rigour of Section 16(c) of the Act of 1963. 22. 1 and 2 and framing of three additional issues falls flat. 21. It is in that background, the ratio decidendi of the judgment in J.P. Builders (supra) on which learned counsel for the respondent has placed reliance can be pressed into service by applying rigour of Section 16(c) of the Act of 1963. 22. Hon'ble Apex Court in subsequent judgment in Coromandel Indag Products Private Limited v. Garuda Chit and Trading Company Private Limited & Anr., (2011) 8 SCC 601 while considering Section 16(c) of the Act of 1963 discussed the issue relating to burden of proof regarding readiness and willingness to perform in a suit for specific performance of contract and the Court held:- "20. It is also relevant to point out the stand of the parties as reflected in their pleadings and evidence. In terms of Section 16(c) of the Specific Relief Act, 1963, it is incumbent on the party, who wants to enforce the specific performance of a contract, to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract. The explanation appended to clause (c) makes it clear that if 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. However, the plaintiff must aver performance of, or readiness and willingness to perform the contract according to its true construction. It is seen from the pleadings that necessary averments have been made in terms of clause (c) of Section 16." 23. As regards deletion of issue No. 6 and framing of additional issues, suffice it to observe that issue No. 6 covers all the aspects and the burden of proving the fact that respondents are bona fide purchasers also rests on the respondents. Even otherwise, in the overall factual scenario, it is rather not possible to countenance that deletion of issue No. 6 and so also non-framing of proposed additional issues would prejudice the cause of the petitioner in any manner. Therefore, viewed from any angle, I am unable to find any error much less a jurisdictional error in the impugned order passed by the learned court below. 24. Therefore, viewed from any angle, I am unable to find any error much less a jurisdictional error in the impugned order passed by the learned court below. 24. It is needless to observe here that the petitioner has invoked supervisory jurisdiction of this Court to assail the impugned order which is not akin to appellate jurisdiction. The power of this Court under Article 227 of the Constitution of India is restricted to interference in cases of grave miscarriage of justice, dereliction of duty or flagrant violation of law by the court below and the same has to be exercised most sparingly. While exercising supervisory jurisdiction, the endeavour of the Court is to see whether an inferior court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of record much less of an error of law. That being the position of scope of judicial review, interference with the impugned order is not called for. 25. The upshot of the above discussion is that I find no merit in this writ petition and the same is accordingly dismissed.Petition Dismissed. *******