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2016 DIGILAW 95 (KAR)

Pawadi Rewappa Pidai v. Ningappa Rewappa Mali

2016-01-27

B.V.NAGARATHNA

body2016
JUDGMENT : B.V. Nagarathna, J. 1. Though this appeal is listed for admission, with the consent of learned counsel for parties, the appeal is taken up for final hearing. 2. The appellants are legal representatives of the original plaintiff. The appellants have assailed judgment and decree passed in R.A. No. 288/2010, dated 16/2/2012, by the IV Addl. District and Sessions Judge, Belgaum, setting aside judgment and decree dated 26/06/2010, passed in O.S. No. 230/2008, by the Senior Civil Judge, Raibag. 3. For the sake of convenience, the parties shall be referred to, in terms of their status before the trial court. 4. Plaintiff filed the suit seeking specific performance of agreement to sell dated 20/2/2003. The said agreement was entered into by defendant no. 1 with the plaintiff in order to sell suit property, being land bearing R.S. No. 183, measuring 3 acres out of a total extent of 27 acres 04 guntas, situated at Katakbhavi Village, Raibag Taluk, Belgaum District. Thus, agreement to sell dated 20/2/2003 was executed by defendant no. 1. The total sale consideration was Rs. 3,00,000/-. Defendant No. 1 received a sum of Rs. 2,66,000/- by way of advance consideration on the date of execution of the agreement. He agreed to receive the balance consideration of Rs. 34,000/- at the time of registration of the sale deed, which was to take place in the month of February 2005. But the defendant did not come forward to execute the sale deed. Therefore, plaintiff got issued a legal notice on 14/2/2005 calling upon the defendant to execute the sale deed. Defendant intentionally affixed his thumb impression on the postal acknowledgment card while receiving the legal notice and failed to reply to the said notice. Therefore, plaintiff issued another legal notice on 3/3/2005 and the same was received by-defendant by affixing his signature on the postal acknowledgment card. In spite of receipt of said notice, defendant failed to execute the sale deed. Therefore, the suit was filed seeking a direction to defendant no. 1 to execute the sale deed in respect of the suit property by accepting the balance sale consideration and thereby, decreeing the suit for specific performance of the agreement. 5. Initially, the suit was filed against respondent no. 1. Subsequently, defendant Nos. 2 and 3, who are the brothers of defendant no. 1, were impleaded as formal parties to the suit. Defendants appeared through their counsel. 5. Initially, the suit was filed against respondent no. 1. Subsequently, defendant Nos. 2 and 3, who are the brothers of defendant no. 1, were impleaded as formal parties to the suit. Defendants appeared through their counsel. Defendant Nos. 1 and 3 filed their written statement together and defendant no. 2 adopted the same by filing a memo. According to the defendants, the suit was not maintainable as the same was not in accordance with law. This was because in the plaint, plaintiff had not pleaded readiness and willingness to perform his part of the contract based on the agreement dated 20/2/2003. Hence, the suit had to be dismissed on that ground alone. Alternatively, it was also averred that defendant no. 1 had not executed any agreement to sell as alleged by the plaintiff nor accepted any earnest money. The suit property is the ancestral property of defendant Nos. 1 to 3. Defendant No. 1 having sons and daughters, he alone had no right to enter into the agreement to sell. There was no legal necessity for defendant no. 1 to sell the suit property. The family of defendant no. 1 was well to do and there was no necessity to sell the suit property as alleged by the plaintiff, Defendant produced a hand sketch along with written statement showing the location of the land in suit survey number. That the suit property was not properly described in the plaint. Agreement to sell was insufficiently stamped, hence, not admissible in law. That the agreement did not mention regarding handing over of the suit land to the plaintiff. The agreement to sell is not admissible in law as per Article 5(e) of the Karnataka Stamp Act and Section 34 of the said Act. Also, defendant Nos. 2 and 3 are not proper parties to the suit. Their presence was not required to decide the suit. Defendant Nos. 2 and 3 being the brothers of defendant no. 1, are having ? K1 share in the suit property. Defendant No. 1 was not authorised by defendant Nos. 2 and 3 to execute the agreement to sell. That defendant no. 1 had no saleable right in the suit property. That there was no cause of action to file the suit. Therefore, defendants sought for dismissal of the suit. 6. 1, are having ? K1 share in the suit property. Defendant No. 1 was not authorised by defendant Nos. 2 and 3 to execute the agreement to sell. That defendant no. 1 had no saleable right in the suit property. That there was no cause of action to file the suit. Therefore, defendants sought for dismissal of the suit. 6. On the basis of the said pleadings, the trial court, framed the following issues for its consideration: (i) Whether the plaintiff proves that the defendant agreed to sell the suit property to plaintiff and executed an agreement to sell on 20/2/2003 as alleged? (ii) Whether the agreement to sell is hit by provisions of Karnataka Stamp Act and thereby inadmissible in evidence? (iii) Whether the plaintiff proves that he was ever ready and willing to perform his part of the agreement? (iv) Whether the plaintiff is entitled for the reliefs? (v) What order or decree? In support of his case, plaintiff no. 1 got examined himself as PW1, but before he could be cross-examined, he died. His son got himself examined as PW4 and two other witnesses were examined as PWs.2 and 3 and they produced four documents, which were marked as Exs.P-1 to P-4 (a). Defendants examined two witnesses as DWs.1 and 2, but did not produce any documentary evidence. On the basis of the said evidence, the trial court answered issue Nos. 1, 3 and 4 in the affirmative and issue no. 2 in the negative and decreed the suit of the plaintiffs against defendant No. 1 with costs by directing defendant no. 1 to execute the registered sale deed in respect of the suit property in favour of plaintiffs, as per the agreement to sell dated 20/2/2003, by receiving balance sale consideration of Rs. 34,000/- from the plaintiffs. The suit against defendant Nos. 2 and 3 was dismissed. 7. Being aggrieved by the said judgment and decree of the trial court dated 26/6/2010, defendant no. 1 filed R.A. No. 288/2010 before the IV Addl. District and Sessions Judge at Belgaum, which on hearing the learned counsel for respective parties framed the following points for its consideration: (i) Whether plaintiff proves that defendant no. 1 has executed an agreement of sale on 20/2/2003 agreeing to sell the suit property in favour of deceased plaintiff and in part performance of the contract earnest amount of Rs. 2,66,000/- was paid? 1 has executed an agreement of sale on 20/2/2003 agreeing to sell the suit property in favour of deceased plaintiff and in part performance of the contract earnest amount of Rs. 2,66,000/- was paid? (ii) Whether plaintiff is entitled for discretionary relief of specific performance? (iii) Whether the suit is maintainable in present form? (iv) Whether the judgment and decree under the appeal is contrary to law, equity, procedure and material evidence on record? (v) Whether the judgment and decree under the appeal calls for any interference by this court? (vi) What order or decree? The first appellate court answered point Nos. 1, 4 and 5 in the affirmative, point Nos. 2 and 3 in the negative and allowed the appeal by setting aside the judgment and decree of the trial court and dismissing the suit of the plaintiff. 8. Being aggrieved by the judgment and decree of the first appellate court, the legal representatives of plaintiff no. 1 have preferred this second appeal. 9. I have heard learned counsel for the parties and perused the material on record. 10. It is contended by Sri Sachin S. Magdum, on behalf of the appellants that the first appellate court was not right in declining to grant the relief of specific performance of the agreement to the plaintiffs by setting aside the judgment and decree of the trial court and thereby dismissing the suit. He submitted that the reasons assigned by the First Appellate Court for doing so were two-fold. Firstly, the first appellate court found that the plaintiff did not aver that he was ready and willing to perform his part of the contract. That, in fact, according to the first appellate court the words "ready and willing" or "readiness and willingness" were conspicuous by their absence in the plaint and therefore, was an infraction of sub-section (c) of Section 16 of the Specific Relief Act, 1963 ("the Act" for short). The first appellate court held that the plaintiff had neither averred nor proved readiness and willingness to perform his part of the contract. Secondly, the first appellate court held that the plaintiff was not entitled to the discretionary relief and on that score, also, the judgment and decree of the trial court was set aside. 11. The first appellate court held that the plaintiff had neither averred nor proved readiness and willingness to perform his part of the contract. Secondly, the first appellate court held that the plaintiff was not entitled to the discretionary relief and on that score, also, the judgment and decree of the trial court was set aside. 11. On the first aspect, learned counsel for the appellant/plaintiff contended that sub-section (c) of Section 16 states that if the plaintiff 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, then in that case there is a bar to the grant of relief of specific performance. He contended that the words of Section 16 (c) have been interpreted in a number of decisions of the Hon'ble Supreme Court as well as this court. He submitted that it is not necessary that the words "ready and willing" must expressly find a place in the plaint. Even in the absence of those words in the pleading, readiness and willingness on the part of the plaintiff must be discerned by the court by a holistic reading to the plaint and also by assessing the conduct of the plaintiff. He contended that no doubt, in the plaint in question, the words "ready and willing" are absent. But that does not imply that readiness and willingness has not been averred or proved by the plaintiff Referring to a decision of the Hon'ble Supreme Court in Sugani v. Rameshwar Das and Another, (2006) 11 SCC 587 , he contended that the first appellate court was not right in its approach in the matter. 12. He next submitted that the agreement to sell was entered into on 20/2/2003. The total sale consideration was Rs. 3,00,000/- and a sum of Rs. 2,66,000/- was accepted by defendant No. 1 on that date. All that remained was to pay the balance sale consideration of Rs. 34,000/- and sale agreement was to be executed two years later i.e., in February, 2005. The plaintiff requested defendant no. 1 to execute the sale deed in February, 2005 and again in March, 2005 by getting legal notices issued vide Exs.P-3 and P-4 and thereafter, the plaintiff filed suit on 30/3/2005. 34,000/- and sale agreement was to be executed two years later i.e., in February, 2005. The plaintiff requested defendant no. 1 to execute the sale deed in February, 2005 and again in March, 2005 by getting legal notices issued vide Exs.P-3 and P-4 and thereafter, the plaintiff filed suit on 30/3/2005. The fact that the plaintiff had performed a major part of the contract has not been appreciated by the first appellate court. The first appellate court simply set aside the judgment and decree of the trial court by holding that the plaintiff was not entitled to the discretionary relief. He contended that possibly this may be due to the reason that the first appellate court took the view that plaintiff had not averred in the plaint that he was ready and willing to perform his part of the contract and therefore, held that the plaintiff was not entitled to the decree of specific performance. He contended that on both these aspects, the first appellate court was not right. That substantial questions of law would arise in the appeal and the appeal may be admitted. 13. Per contra, Sri Rajashekhar Burji, learned counsel for the respondent supporting the judgment of the first appellate court contended that Section 16 of the Act deals with personal bars to relief of specific performance of a contract. The said section clearly states that if the plaintiff fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract, the court cannot grant the relief to such a plaintiff. Drawing my attention to explanation (ii), he contended that plaintiff must aver performance of or readiness and willingness to perform, the contract according to its true construction. He also contended that the pleadings in a suit for specific performance must be in conformity with Order 6, Rule 3 of the Code of Civil Procedure, 1908 read with Form Nos. 47 and 48 in Appendix-A. Placing reliance on the decisions of the Hon'ble Supreme Court in the case of Abdul Khader Rowther v. P.K. Sara Bai, AIR 1990 SC 682 , M/s. J.P. Builders and Another v. A. Ramadas Rao and Another, Civil Appeal Nos. 9821-9822/2010, dated 22/11/2010, J. Samuel and Others v. Gattu Mahesh and Others, Civil Appeal No. 561/2012, dated 16/1/2012 and Padmakumari and Others v. Dasayyan and Others, Civil Appeal Nos. 9821-9822/2010, dated 22/11/2010, J. Samuel and Others v. Gattu Mahesh and Others, Civil Appeal No. 561/2012, dated 16/1/2012 and Padmakumari and Others v. Dasayyan and Others, Civil Appeal Nos. 3570/2015 dated 7/4/2015, he contended that the judgment and decree of the trial court does not call for any interference in this appeal as no substantial question of law would arise in this appeal. Hence, the appeal may be dismissed, in limine. 14. Having heard learned counsel for the parties and on perusing the material on record as well as the original records, in my view, the appeal would have to be admitted on the following substantial questions of law: (i) Whether the first appellate court was right in dismissing the suit of the appellant/plaintiff for the reason that the plaintiff had failed to aver and prove that he was ready and willing to perform his part of the contract and therefore, there was non-compliance of sub-section (c) of Section 16 of the Act? (ii) Whether the first appellate court was right in setting aside the judgment and decree of the trial court and thereby dismissing the suit, by declining the relief of specific performance to the appellant/plaintiff? The appeal is admitted to consider the aforesaid substantial questions of law. 15. The execution of the agreement to sell dated 20/2/2003 by defendant no. 1 in favour of the original plaintiff has been established. The suit schedule land was to be sold by him for a valuable consideration of Rs. 3,00,000/-. On that date itself Rs. 1,66,000/- was received by defendant No. 1, as an advance consideration. The same has also been acknowledged in Ex.P-2, which is the agreement to sell. The balance sale consideration of Rs. 34,000/- had to be paid. The time stipulated for the performance of the contract was two years. Sometime in February, 2005, plaintiff requested defendant no. 1 to execute the sale deed by accepting the balance sale consideration of Rs. 34,000/-. In that regard Exs.P-3 and P-4 have been produced by the plaintiff, which are the legal notices. Those documents are also admitted by defendant no. 1. Therefore, on the basis of the aforesaid facts, the suit for specific performance of the contract was filed by the plaintiff in March, 2005 when defendant no. 1 did not accede to the request of the plaintiff to execute the sale deed. The amended plaint is perused. Those documents are also admitted by defendant no. 1. Therefore, on the basis of the aforesaid facts, the suit for specific performance of the contract was filed by the plaintiff in March, 2005 when defendant no. 1 did not accede to the request of the plaintiff to execute the sale deed. The amended plaint is perused. The relevant paragraphs of the plaint are as under: "(2) The defendant is the owner of the suit property. The defendant for his family necessity approach the plaintiff to sell the suit property along with well situated in the suit property bearing R.S. No. 183 that plaintiff has to take water in the well in a week for two day's through I.R Set's. So accordingly on dated 20-02-2003 the defendant executed roistered agreement of sale and received Rs. 2,66,000/- (Rupees Two Lakh Sixty Six Thousand) from the plaintiff as Earnest money and balance amount of Rs. 34,000/- will be paid at the time of executed of sale deed within the month of February 2005 the total consideration amount of the agreement of sale transaction is Rs. 3,00,000/- (Rupees Three Lakhs) and defendant received Rs. 2,66,000/- as earnest amount. But as per the agreement of sale the defendant is not ready to execute the sale deed of the suit property. Therefore the plaintiff issued legal notice through his counsel on dated 14-02-2005 to execute the sale deed but intentional by the defendant put thumb impression on the acknowledgment and not executed the sale deed. Therefore plaintiff issued another notice through his counsel on dated 03-03-2005 and defendant received the notice and put his signature on the postal acknowledgment. But as per agreement dated 20-02-2003 not executed the register sale deed of the suit property. Hence the plaintiff constrained to file the present suit against the defendant for specific performance of contract. (3) Cause of Action :- The cause of action for the suit property arose on 14-02-2005 and 03-03-2005 when the defendant refuse to execute the sale deed of the suit property as per agreement dated 20-02-2005." The amendment was carried out in order to bring on record defendant Nos. 2 and 3 as defendants and thereafter, to bring on record the legal representatives of deceased plaintiff. 16. 2 and 3 as defendants and thereafter, to bring on record the legal representatives of deceased plaintiff. 16. The facts as stated in the plaint are with regard to the execution of Ex.P-2 sale deed by defendant No. 1; the receipt of earnest money by defendant No. 1; time fixed for performance of the agreement; steps taken by the plaintiff in that regard by issuance of legal notices and the grievance of the plaintiff that defendant No. 1 did not take steps to execute the sale deed in favour of plaintiff. As the controversy in this case revolves on Section 16 of the Act, reference to Subsection (c) of Section 16 is made, it reads as under: "16. Personal bars to relief.- Specific performance of a contract cannot be enforced in favour of a person- xxxxxxxxxxxxxxxxxx (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. Explanation.- For the purpose 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." On a reading of the said section, it becomes clear that if a plaintiff does not 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, then in that case, the decree or specific performance cannot be granted to him. In fact, there is a bar to seek such a relief. 17. The import of the words to aver and prove readiness and willingness is a matter which is under consideration in this appeal, in order to ascertain as to whether plaintiff is entitled to the relief of specific performance of the contract or not. In fact, there is a bar to seek such a relief. 17. The import of the words to aver and prove readiness and willingness is a matter which is under consideration in this appeal, in order to ascertain as to whether plaintiff is entitled to the relief of specific performance of the contract or not. No doubt, the CPC in Form No. 47 has stated that one of the averments must be that the plaintiff has been and still is ready and willing specifically to perform the agreement on his part of which the defendant has had notice and in Form No. 48, it is stated that the plaintiff must aver that he is ready and willing to pay the purchase money of the said property to the defendant. But the approach of the Courts on this aspect of the matter should be as to whether, readiness and willingness on the part of the plaintiff could be discerned on a reading of the plaint, even in the absence of mention of those words in the plaint or, is it necessary that those words must be stated specifically or expressly in the plaint. 18. In this regard, it is to be noted that though there is no general format of drafting of pleadings i.e., a plaint, the specific contents are dependent on the nature of the case. The plaint is normally drafted by an advocate or a counsel when such a person is engaged as in the instant case and the settled position of law is that the approach of a Court of law in the matter of construction of pleadings must be liberal. There cannot be a strict construction of pleadings so as to cause injustice to any party, unless the statute mandates that the absence of pleading in a particular fashion would be a bar to seek a relief. No doubt, sub-section (c) of Section 16 speaks about the personal bars to the relief of specific performance of an agreement. But the said section has been interpreted in many judgments of the Hon'ble Supreme Court. 19. It is said that an averment regarding readiness and willingness in the plaint is not a mathematical formula, it need not be in specific words. But the said section has been interpreted in many judgments of the Hon'ble Supreme Court. 19. It is said that an averment regarding readiness and willingness in the plaint is not a mathematical formula, it need not be in specific words. If, on a reading of the plaint, an indication regarding readiness and willingness of the plaint to fulfil his part of the contract is apparent, then the nature of wordings of the said plea would not defeat against readiness and willingness of the plaint in a suit for specific performance of contract of sale. 20. In the case of Sugani while considering the requirements of Section 16 of the Act, reliance has been placed on another decision of the Hon'ble Supreme Court in Syed Dastagir v. T.R. Gopala Krishna Shetty, (1999) 6 SCC 337 , which is also a judgment on the said section of the Act. It has been stated therein that in construing a plea, courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law' of one's case for a relief. Such an expression may be pointed, precise, sometimes vague but still it could be gathered what he wants to convey through only by reading the whole pleading, depending on the person drafting the plea. In India, most of the pleas are drafted by counsel. Hence, the aforesaid difference of pleas which inevitably differ from one to the other. Thus, to gather the true spirit behind a pica it should be read as a whole. This does not distract one from performing bis obligations as required under a statute. But to test-whether he has performed his obligations, one has to see the pith and substance of a plea. Where a statute requires any fact to be pleaded then what has to be pleaded may be in any form. The same plea may be stated by different persons through different words; then how could it be constricted to be only in any particular nomenclature of word. Unless a statute specifically requires a plea in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The same plea may be stated by different persons through different words; then how could it be constricted to be only in any particular nomenclature of word. Unless a statute specifically requires a plea in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in sub-section (c) of Section 16 of the Act does not require any specific phraseology but only that the plaintiff must aver and prove that he has performed or has always been ready and willing to perform his part of the contract. So the compliance of "readiness and willingness" has to be in spirit and substance and not in letter and form. Therefore, to insist for a mechanical production of the exact words of a statute is to insist for the form rather than the essence. So the absence of form cannot dissolve an essence if already pleaded. 21. In Aniglase Yohannan v. Ramlatha, AIR 2005 SC 3503 , the Hon'ble Supreme Court on a holistic reading of the plaint held that the plaintiff was ready to get the sale deed prepared after paying necessary consideration and as a result, decreed the suit. The implication of the plea of readiness and willingness is that the plaintiff has not been at fault but the contract has been given up by the defendant. In other words, the person seeking benefit of the specific performance of contract must manifest that his conduct has been blemish less throughout, entitling him to the specific relief. The Court has to grant the relief on the basis of the conduct of the person seeking the relief. If the pleadings manifest that the conduct of the plaintiff entitles him to the relief, then on perusal of the plaint, he should not be denied the relief. Thus, the expression "readiness and willingness" should not be treated as if in a strait jacket formula. Mere omission of a particular expression regarding readiness and willingness would not disentitle plaintiff from the grant of relief. If on an analysis of entire facts, it could be found that plaintiff was ready and willing to perform his part of the contract, then plaintiff would be entitled to the relief. Mere omission of a particular expression regarding readiness and willingness would not disentitle plaintiff from the grant of relief. If on an analysis of entire facts, it could be found that plaintiff was ready and willing to perform his part of the contract, then plaintiff would be entitled to the relief. Thus, Section 16 of the Act, does not insist upon any particular set of words to be used in the plaint but the averments must indicate continuous readiness and willingness on the part of the plaintiff suing for the relief of specific performance of the contract. 22. Thus, the test is that the mention of the words "ready and willing" in the plaint is not a mandatory requirement, but the fact that the plaintiff has been and is ready and willing to perform his part of the contract must be a matter which can be discerned on a reading of the plaint. Thus, on a reading of the plaint, even in the absence of the aforesaid words if, the contents of the plaint discloses, readiness and willingness, then such a plaint cannot be discarded as being not in compliance with sub-section (c) of Section 16 of the Act. 23. On the contrary, the mere mention of the words that the plaintiff is ready and willing to perform his part of the contract, in the absence of there being any readiness and willingness in reality or proof thereof would not also imply that as he has stated so in the plaint, he must be granted the decree of specific performance. That is why the relief of specific performance is a discretionary relief, which is left to the court to decide based on the surrounding circumstances. All facts leading up to the agreement which is to be specifically enforced and the conduct of the parties subsequent to the execution of the agreement to sell and all surrounding circumstances must be considered by the court before exercising discretion to grant the relief or to decline the relief. 24. When the question of absence of pleading is raised the Court has to consider whether, the pleading of the party conveys sufficient meaning in terms of statutory requirement. Requirement of pleading are satisfied when parties have understood the issues involved in the suit and had led evidence. 24. When the question of absence of pleading is raised the Court has to consider whether, the pleading of the party conveys sufficient meaning in terms of statutory requirement. Requirement of pleading are satisfied when parties have understood the issues involved in the suit and had led evidence. If on a perusal of written statement it is apparent that the defendant had properly understood the pleading relating to readiness and willingness, in such a case, a party cannot be allowed to contend that the pleadings do not satisfy the requirement as illustrated in Form 47 and 48 of the schedule I of CPC - C.N. Ranganath v. M.R. Thyagaraja, (1996) 7 KLJ 712. 25. Apart from the averments of readiness and willingness in a plaint, the conduct prior to and subsequent to the proceedings of the decree are relevant. The expression "readiness and willingness" refer to two different aspects. Though the plaintiff may be willing to perform his part of the contract, he should also be ready to do it. Conversely, a person may be ready to perform a contract but could lack willingness to do so. "Readiness" means, capacity of plaintiff to perform including his financial ability to pay the purchase price. "Willingness" means, his animus or intention that he is always ready and prepared to perform his part of the contract. Thus, a mere plea of readiness and willingness is not sufficient but it has to be proved. If the plaintiff appears or notifies the Sub Registrar to stop the registration of sale deed by the vendor to a third party in defiance of his obligation of the agreement, the same would prove willingness. Thus, the plea of readiness and willingness need not be in specific phraseology or language. 26. So long as the aforesaid aspects could be gathered on a reading of the plaint and after ascertaining as to how the plaint has been understood by the defendant on a reading of the written statement and the manner in which the parties have let in evidence on their understanding of the issues raised in the case, readiness and willingness could be discerned even in the absence of specific expression "ready and willing" in the plaint. 27. On a holistic reading of the averments in the plaint in the instant case, it is clearly discernable that the plaintiff herein, had already paid a sum of Rs. 27. On a holistic reading of the averments in the plaint in the instant case, it is clearly discernable that the plaintiff herein, had already paid a sum of Rs. 2,66,000/- out of Rs. 3,00,000/- as earnest money or advance sale consideration. That a sum of Rs. 34,000/- only was the balance consideration to be tendered to defendant No. 1 by the plaintiff. Plaintiff has stated that the same was to be paid at the time of execution of the sale deed in the month of February, 2005. As I he defendant did not come forward to execute the sale deed, two legal notices were issued vide Exs.P-3 and P-4. As defendant did not reply to the same and having regard to the refusal on the part of the defendant to take steps for execution of sale deed, despite issuance of legal notice to him, plaintiff filed the suit in March 2005. Keeping in mind the observations of the Hon'ble Supreme Court referred to above and on a reading the plaint, I am of the considered view that in the instant case readiness and willingness on the part of the plaintiff can be discerned and therefore, the trial court was right in answering issue no. 3 in the affirmative. But the first appellate court was not right in holding that as the plaint did not contain the words that the plaintiff was ready and willing to perform his part of the contract in terms of sub-section (c) of Section 16 of the Act, he was not entitled to the relief of specific performance. 28. The decisions relied upon by the learned counsel for the respondents are in a different context. Those decisions do not also categorically state that the words "ready and willing" must be stated specifically in the plaint and in tire absence of those words the relief of specific performance of agreement would have to be declined. That apart, those decisions do not taken into consideration the decision of the Hon'ble Supreme Court in Sugani's case. In that view of the matter, substantial question of law no. That apart, those decisions do not taken into consideration the decision of the Hon'ble Supreme Court in Sugani's case. In that view of the matter, substantial question of law no. (i) has to be answered in favour of the appellant/plaintiffs by holding that first appellate court was not right in dismissing the suit of the appellant/plaintiff for the reason that the plaintiff had not averred that he was ready and willing to perform his part of the contract and therefore, there was non-compliance of sub-section (c) of section 16 of the Act. 29. The next question is as to whether the first appellate court was right in setting aside the judgment and decree of the trial court and thereby dismissing the suit by declining the relief of specific performance of the agreement to the appellant/plaintiff by not exercising discretion in favour of the plaintiff. This aspect would not take long to answer for the simple reason that the first appellate court, on the basis of the answer given to point Nos. 2 and 3 raised by it has declined to grant the relief. Section 20 of the Act categorically states that the court is not bound to grant the decree of specific performance merely because it is lawful to do so, but the exercise of discretion of the court must not be arbitrary but must be sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. In the absence of any circumstance as enunciated in Section 20 of the Act being applicable to the present case, the first appellate court has proceeded not to exercise discretion in favour of the plaintiff because the words "ready and willing" were not specifically mentioned in the plaint. In my view, the approach of the first appellate court is not right. The decisions of the Hon'ble Supreme Court referred to above would categorically indicate as to how a plaint has to be read and understood. In fact, the Hon'ble Supreme Court has observed in a number of cases that when it is a case of understanding "mofussil pleadings", there must be a more liberal construction of such pleadings. Therefore, substantial question of law no. (ii) also has to be answered in favour of the appellants by holding that the legal representatives of the plaintiff are entitled to the relief of specific performance of agreement to sell dated 20.02.2003. Therefore, substantial question of law no. (ii) also has to be answered in favour of the appellants by holding that the legal representatives of the plaintiff are entitled to the relief of specific performance of agreement to sell dated 20.02.2003. 30. In the circumstances, the judgment and decree of the first appellate court is set aside and the judgment and decree of the trial court is confirmed. 31. Appeal is allowed. Parties to bear their own costs.