suit for specific performance – essential pleadings of facts and proof is mandatory = It was for the plaintiff to prove his readiness and willingness to pay the stipulated amount and it was not for the appellants to raise such question…” 16. When the pleadings in the present case are examined with reference to the principle aforesaid, it is but apparent that in the plaint, the plaintiff referred to the agreement in question whereby, the defendant had allegedly agreed to sell the house in question to him for a sale consideration of Rs. 30,000/- and averred that the defendant received a sum of Rs. 15,000/- from him. The plaintiff stated that the agreement was executed on 16/17.04.1975. Thereafter, the plaintiff straight away referred to the fact that subsequent to the execution of agreement, the Urban Land (Ceiling and Regulation) Act, 1976 was promulgated; and Section 27 thereof prohibited transfer of property without prior permission of the Competent Authority. The plaintiff further averred that he served notice dated 06.05.1979 on the defendant asking him to seek permission and to execute the sale deed; that the notice was personally served on the defendant on 17.05.1979; and that the defendant in his reply dated 06.07.1979, feigned ignorance about the agreement. The plaintiff further averred that the defendant was bound to execute the sale deed of the house after seeking necessary permission and for the defendant having failed to do so, the suit was being filed. There is not even a remote suggestion in the plaint averments that the plaintiff had performed or has always been ready and willing to perform his part of the contract. Even in the plaintiff’s testimony as PW-1, it is difficult to find a 13 categorical assertion that he had performed or has always been ready and willing to perform his part of the contract. The testimony of the plaintiff as PW-1 is essentially directed towards the existence and validity of the alleged agreement and the surrounding dealings of the parties; but is lacking in those material assertions on readiness and willingness on his part, which remain essential for grant of the relief of the specific performance.


Hon’ble Mr. Justice Dinesh Maheshwari 

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8199 OF 2009
MEHBOOB-UR-REHMAN (DEAD) THROUGH LRS. Appellant(s)
VS.
AHSANUL GHANI Respondent(s)
JUDGMENT
Dinesh Maheshwari, J.
The appellant herein (since deceased and represented by his legal
representatives) had filed the suit for specific performance of Agreement to Sell,
being O.S. No. 392 of 1979, that was decreed by the Court of II Additional Civil
Judge, Kanpur Nagar by the judgment and decree dated 10.12.1981. However,
the decree so passed by the Trial Court was reversed by the Court of IX
Additional District Judge, Kanpur Nagar in its judgment and decree dated
03.07.1995 in Appeal No.54 of 1982, essentially on the ground that the plaintiff
had failed to aver and prove his continuous readiness and willingness to perform
his part of the contract. The High Court of Judicature at Allahabad, in its
impugned judgment dated 10.12.2007 in R.S.A. No. 931 of 1995, while
2
dismissing the second appeal filed by the plaintiff-appellant, affirmed the decree
passed by the First Appellate Court. Aggrieved, the plaintiff-appellant has
preferred this appeal.

  1. Briefly put, the relevant background aspects of the matter are that on
    13.08.1979, the plaintiff-appellant filed the suit aforesaid with the averments that
    the defendant-respondent had executed an agreement dated 16/17.04.1975 in
    his favour for sale of the property in question, being House Number 102 at
    Faithful Ganj, Kanpur Nagar, for a consideration of Rs. 30,000/-; and that a sum
    of Rs. 15,000/- was paid as earnest money while the remaining amount was
    payable at the time of execution and registration of the sale deed. The plaintiffappellant further averred that after the agreement, the Urban Land (Ceiling and
    Regulation) Act, 1976 came to be promulgated prohibiting transfer of the property
    without permission of the Competent Authority; and the defendant-respondent
    was required to obtain such permission but failed to do so despite requests. The
    plaintiff-appellant yet further averred that on 06.05.1979, he served a notice on
    the defendant-respondent for obtaining permission from the Ceiling Authorities
    and for execution of the sale deed to which, the defendant-respondent sent a
    reply dated 06.07.1979 stating ignorance about the agreement and sought a
    copy thereof for proper reply while alleging that his signatures were obtained on
    some papers in relation to a suit filed by the State Bank of India. The plaintiffappellant stated that these were the false pretexts taken by the defendant who
    3
    was bound to execute the sale deed for the house in question after seeking
    necessary permission; and for him having failed to do so, the suit was being filed
    for enforcing specific performance of the agreement.
  2. The defendant-respondent, while denying the plaint averments, inter alia,
    alleged that he was involved as a guarantor in relation to the loan taken by a firm
    M/s Adam Textiles from the State Bank of India and his house in question was
    hypothecated to the said bank; and when the bank threatened to take action
    against him, the plaintiff, who was known to him, assured of contesting the matter
    on his behalf and persuaded him to hand over possession of the house in
    question on rental basis. The defendant alleged that he got deceived on
    persuasion of the plaintiff and, for the purpose of conducting the trial of the suit
    filed by the bank, his signatures were obtained on blank papers on which, some
    document was fabricated; and that the copy of the alleged agreement was never
    supplied to him despite demand. The defendant also took the objections
    regarding limitation, valuation and court fees.
  3. On the pleading of parties, the Trial Court framed the following issues for
    determination of the questions involved in the matter:-
    “1. Whether the suit is under valued and court fee
    paid is insufficient?
  4. Whether the suit is barred by time?
  5. Whether the agreement is forged as alleged?
  6. Whether the agreement was got affected by
    fraud, misrepresentation as alleged in paras 12 to
    15 of W.S.?
    4
  7. To what relief if any is the plaintiff entitled?”
  8. After taking the evidence and having heard the parties, the Trial Court
    decreed the suit on 10.11.1981 while recording the findings, inter alia, to the
    effect that time was not the essence of the contract; that the defendant was
    required to obtain necessary permission from the Urban Ceiling Authorities and
    he having not done so, the suit was within time; that the defendant refused to
    honour his commitment in the letter dated 07.08.1979, which was received by the
    plaintiff on 17.08.1979, whereas the suit had already been filed on 13.08.1979
    and hence, the same was well within limitation; that by way of his testimony as
    PW-1 and with the help of the notice dated 06.05.1979 (Exhibit 3), the plaintiff
    succeeded to prove that he was always ready and willing to perform his part of
    agreement; that the agreement was neither forged nor obtained by fraud or misrepresentation; and that in his reply notice dated 06.07.1979 (Exhibit A-12), the
    defendant did not challenge the existence of agreement.
  9. While challenging the decree of the Trial Court, the defendant raised the
    grounds in the first appeal, inter alia, that the finding of the Trial Court that the
    plaintiff was ready and willing to perform his part of agreement was perverse and
    for want of necessary averments, the suit ought to have been dismissed.
  10. As per the law applicable at the relevant point of time, the said first appeal
    was filed in the High Court and the plaintiff, while appearing in the said appeal as
    respondent, moved an application seeking leave to amend the plaint whereupon,
    5
    the High Court passed the order dated 29.07.1982 that the application for
    amendment would be decided at the time of final hearing of the appeal. Later on,
    in view of alteration of jurisdiction, the appeal was transmitted by the High Court
    to the District Court and was ultimately assigned to the IX Additional District
    Judge, Kanpur Nagar as Appeal No. 54 of 1982. On 28.02.1995, the First
    Appellate Court rejected the plaintiff’s application seeking leave to amend the
    plaint and thereafter, allowed the appeal on 25.04.1995 while holding that the
    plaintiff had failed to take the necessary averments in the plaint on his readiness
    and willingness to perform his part of the contract.
  11. The second appeal preferred by the plaintiff-appellant against the
    judgment and decree so passed by the First Appellate Court was admitted by the
    High Court on the following substantial questions of law:-
    “(i) Whether lower appellate court is justified in
    dismissing the suit for non-compliance of
    provisions of Section 14 and 16 of Specific Relief
    Act without any pleading and/or issue on the said
    point?
    (ii) Whether the Lower Appellate Court ought to have
    framed the issues if relevant and ought to have
    remitted it to Trial Court?”
  12. The High Court, in its impugned judgment dated 10.12.2007, examined in
    detail the contentions of the parties and law applicable to the case, particularly
    with reference to Section 16 of the Specific Relief Act, 1963 (hereinafter also
    referred to as ‘the Act’) and several decisions of this Court including that in
    6
    Umabai and another vs. Nilkanth Dhondiba Chavan (Dead) by LRS. and
    another : (2005) 6 SCC 243, and rejected the contentions urged on behalf of the
    plaintiff-appellant while observing as under:-
    “It is clear from the averments made in the plaint and
    from the evidence brought on record that there is
    complete absence of continuous readiness and
    willingness on the part of the plaintiff. There is nothing
    in his conduct which may even remotely show that prior
    to the notice dated 6.5.1979 the plaintiff had expressed
    any readiness and willingness to perform his part of the
    contract.
    The contention of the learned counsel for the appellant
    that the defendant also did not raise such a plea does
    not help the plaintiff-appellant because under Section
    16 (c) of the Act is for the plaintiff to aver and prove this
    fact. This is what was observed by the Supreme Court
    in Umabai (supra). The Trial Court, while deciding
    issue No. 5 merely observed that certain sections of the
    Act including section 16(c) of the Act was not applicable
    because the plaintiff has been ready and willing to
    perform his part of the contract. This finding has been
    arrived at without any discussion. The Lower Appellate
    Court, on the other hand, has elaborately dealt with this
    issue. It has observed that under the alleged
    agreement dated 16/17-4-1975 permission was
    required to be taken within one month of the agreement
    and then the sale-deed was required to be executed but
    the plaintiff not only failed to make any specific
    averment in the plaint about readiness and willingness
    but also failed to prove the same. In the light of the
    discussion made above, the finding recorded by the
    Lower Appellate Court is correct.”
  13. The contention on behalf of the plaintiff-appellant that the First Appellate
    Court was not justified in rejecting the application for amendment was also
    negatived by the High Court with the following observations:-
    7
    “The Lower Appellate Court by a detailed order had
    rejected the application filed at the belated stage for
    amending the plaint by adding a relief about readiness
    and willingness. At the time of the admission of the
    Second Appeal, the Court did not formulate any
    substantial question of law as to whether the
    amendment application had been illegally rejected.
    This plea, therefore, cannot be considered at the time
    of hearing of the Second Appeal. However, even
    otherwise there is no infirmity in the order rejecting the
    amendment application as it had been moved with a
    considerable delay and would involve a retrial as
    evidence would have to be led by the parties on this
    issue.”
  14. Assailing the judgment of the High Court, learned counsel for the appellant
    has strenuously argued that in the absence of any objection in the written
    statement regarding non-compliance of Section 16(c) of the Act and without any
    issue to that effect, the First Appellate Court and the High Court were not justified
    in non-suiting the appellant only on the ground of the so called want of pleading
    on readiness and willingness. Learned counsel would submit that for the purpose
    of Section 16(c) of the Act, while examining the question regarding readiness and
    willingness of the plaintiff to perform his part of the contract, the Court is required
    to see the pith and substance of the entire pleadings and evidence and not just
    the letter and form; and on the substance of the matter, such readiness and
    willingness is duly proved on record. Learned counsel would also argue that
    there was no justification in rejection of the application for amendment, if at all
    any question regarding averment on readiness and willingness was being raised;
    and for substantial justice between the parties, such an amendment ought to
    8
    have been allowed. In this regard, learned counsel has also argued with
    reference to proviso to sub-section (5) of Section 100 of the Code of Civil
    Procedure, 1908 (‘CPC’) that even if a substantial question of law involved in the
    matter had not been formulated at the time of admission of appeal, the same
    could have been formulated and decided by the High Court for ensuring
    substantial justice; and in the present case, the High Court has wrongly confined
    itself only to the questions formulated at the time of admission, while putting the
    matter in a strait jacket. Per contra, learned counsel for the defendantrespondent has duly supported the judgment of the High Court with the
    submissions that the plaintiff-appellant having failed to establish his readiness
    and willingness to perform his part of the alleged agreement, the suit has rightly
    been dismissed.
  15. Having bestowed anxious consideration to the rival submissions and
    having examined the record with reference to the law applicable, we are inclined
    to agree with the High Court that, in the present suit, specific performance of the
    agreement in question cannot be enforced in favour of the plaintiff-appellant for
    want of proof of his continuous readiness and willingness to perform his part of
    the essential terms of the contract.
  16. It remains trite that the relief of specific performance is not that of common
    law remedy but is essentially an exercise in equity. Therefore, in the Specific
    Relief Act, 1963, even while providing for various factors and parameters
    9
    for specific performance of contract, the provisions are made regarding the
    contracts which are not specifically enforceable as also the persons for or against
    whom the contract may be specifically enforced. In this scheme of the Act,
    Section 16 thereof provides for personal bars to the relief of specific
    performance. Clause (c) of Section 16 with the explanation thereto, as applicable
    to the suit in question, had been as follows:-
    “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]1
    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]2
    performance of, or
    readiness and willingness to perform, the contract
    according to its true construction.”
  17. Though, with the amendment of the Specific Relief Act, 1963 by Act No. 18
    of 2018, the expression “who fails to aver and prove” is substituted by the
    1 By Act No. 18 of 2018, the expression “who fails to aver and prove” is substituted by the expression
    “who fails to prove”
    2 By the same Act No. 18 of 2018, the expression “ must aver” is substituted by the expression “must
    prove”
    10
    expression “who fails to prove” and the expression “must aver” stands substituted
    by the expression “must prove” but then, the position on all the material aspects
    remains the same that, specific performance of a contract cannot be enforced in
    favour to the person who fails to prove that he has already 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 the terms of which, the
    performance has been prevented or waived by the other party. As per the law
    applicable at the relevant time, it was incumbent for the plaintiff to take the
    specific averment to that effect in the plaint. Of course, it was made clear by this
    Court in several decisions3
    , that such requirement of taking the necessary
    averment was not a matter of form and no specific phraseology or language was
    required to take such a plea. However, and even when mechanical reproduction
    of the words of statue was not insisted upon, the requirement of such pleading
    being available in the plaint was neither waived nor even whittled down. In the
    case of A. Kanthamani v. Nasreen Ahmed: (2017) 4 SCC 654, even while
    approving the decree for specific performance of the agreement on facts, this
    Court pointed out that the requirement analogous to that contained in Section
    16(c) of the Specific Relief Act, 1963 was read in its forerunner i.e., the Specific
    Relief Act, 1877 even without specific provision to that effect. Having examined
    the scheme of the Act and the requirements of CPC, this Court said,-
    3 vide Syed Dastagir v. T.R.Gopalakrishna Setty: (1999) 6 SCC 337; and
    Aniglase Yohannan v. Ramlatha and Ors.: (2005) 7 SCC 534,
    11
    “22. Therefore, the plaint which seeks the relief of
    specific performance of the agreement/contract must
    contain all requirements of Section 16 (c) read with
    requirements contained in Forms 47 and 48 of
    Appendix ‘A’ CPC”
  18. Such a requirement, of necessary averment in the plaint, that he has
    already performed or has always been ready and willing to perform the essential
    terms of the contract which are to be performed by him being on the plaintiff,
    mere want of objection by the defendant in the written statement is hardly of any
    effect or consequence. The essential question to be addressed to by the Court in
    such a matter has always been as to whether, by taking the pleading and the
    evidence on record as a whole, the plaintiff has established that he has
    performed his part of the contract or has always been ready and willing to do so.
    In this regard, suffice it would be to refer to the principles enunciated by this
    Court in the case of Umabai (supra) as under:-
    “30. It is now well settled that the conduct of the parties,
    with a view to arrive at a finding as to whether the
    plaintiff-respondents were all along and still are ready
    and willing to perform their part of contract as is
    mandatorily required under Section 16 (c) of the
    Specific Relief Act must be determined having regard to
    the entire attending circumstances. A bare averment in
    the plaint or a statement made in the examination-inchief would not suffice. The conduct of the plaintiffrespondents must be judged having regard to the
    entirety of the pleadings as also the evidences brought
    on records.

12

  1. It was for the plaintiff to prove his readiness and
    willingness to pay the stipulated amount and it was not
    for the appellants to raise such question…”
  2. When the pleadings in the present case are examined with reference to
    the principle aforesaid, it is but apparent that in the plaint, the plaintiff referred to
    the agreement in question whereby, the defendant had allegedly agreed to sell
    the house in question to him for a sale consideration of Rs. 30,000/- and averred
    that the defendant received a sum of Rs. 15,000/- from him. The plaintiff stated
    that the agreement was executed on 16/17.04.1975. Thereafter, the plaintiff
    straight away referred to the fact that subsequent to the execution of agreement,
    the Urban Land (Ceiling and Regulation) Act, 1976 was promulgated; and
    Section 27 thereof prohibited transfer of property without prior permission of the
    Competent Authority. The plaintiff further averred that he served notice dated
    06.05.1979 on the defendant asking him to seek permission and to execute the
    sale deed; that the notice was personally served on the defendant on
    17.05.1979; and that the defendant in his reply dated 06.07.1979, feigned
    ignorance about the agreement. The plaintiff further averred that the defendant
    was bound to execute the sale deed of the house after seeking necessary
    permission and for the defendant having failed to do so, the suit was being filed.
    There is not even a remote suggestion in the plaint averments that the plaintiff
    had performed or has always been ready and willing to perform his part of the
    contract. Even in the plaintiff’s testimony as PW-1, it is difficult to find a
    13
    categorical assertion that he had performed or has always been ready and willing
    to perform his part of the contract. The testimony of the plaintiff as PW-1 is
    essentially directed towards the existence and validity of the alleged agreement
    and the surrounding dealings of the parties; but is lacking in those material
    assertions on readiness and willingness on his part, which remain essential for
    grant of the relief of the specific performance.
  3. In the above set of circumstances, we are unable to find any fault in the
    findings of the High Court that the plaintiff had failed to aver and prove his
    continuous readiness and willingness to perform his part of the contract. The suit
    was bound to fail on this ground alone.
  4. So far as the proposition for amendment of the plaint is concerned, we are
    unable to find any illegality on the part of the First Appellate Court and the High
    Court in rejecting the prayer belatedly made by the plaintiff. As noticed, the
    averment and proof on readiness and willingness to perform his part of the
    contract has been the threshold requirement for a plaintiff who seeks the relief of
    specific performance. The principle that the requirement of such averment had
    not been a matter of form, applied equally to the proposition for amendment at
    the late stage whereby, the plaintiff only attempted to somehow improve upon the
    form of the plaint and insert only the phraseology of his readiness and
    willingness. In such a suit for specific performance, the Court would be, and had
    always been, looking at the substance of the matter if the plaintiff, by his conduct,
    14
    has established that he is unquestionably standing with the contract and is not
    wanting in preparedness as also willingness to perform everything required of
    him before he could be granted a relief whereby, the performance of other part of
    the contract could be enjoined upon the defendant. In the present case, the
    plaintiff-appellant had failed to aver and prove his readiness and willingness to
    perform his part of the contract. The Trial Court made a rather assumptive
    observation that he had proved such readiness and willingness. Thereafter, the
    plaintiff sought leave to amend the plaint only when the ground to that effect was
    taken in the first appeal by the defendant. In the facts and circumstances of the
    present case, in our view, it was too late in the day for the plaintiff to fill up such a
    lacuna in his case only at the appellate stage. In other words, the late attempt to
    improve upon the pleadings of the plaint at the appellate stage was only an
    exercise in futility in the present case.
  5. Moreover, the High Court has pointed out, and rightly so, that no
    substantial question of law as regards the correctness of the order refusing the
    application for amendment was formulated. In the scheme of the provisions
    relating to second appeal, it remains fundamental, as per Section 101 CPC, that
    no second appeal would lie except on the ground mentioned in Section 100.
    Sections 100 and 101 of the Code of Civil Procedure read as under:-
    “100. Second Appeal.- (1) Save as otherwise expressly provided
    in the body of this Code or by any other law for the time being in
    force, an appeal shall lie to the High Court from every decree
    15
    passed in appeal by any Court subordinate to the High Court, if
    the High Court is satisfied that the case involves a substantial
    question of law.
    (2) An appeal may lie under this section from an appellate decree
    passed ex parte.
    (3) In an appeal under this section, the memorandum of appeal
    shall precisely state the substantial question of law involved in the
    appeal.
    (4) Where the High Court is satisfied that a substantial question of
    law is involved in any case, it shall formulate that question.
    (5) The appeal shall be heard on the question so formulated and
    the respondent shall, at the hearing of the appeal, be allowed to
    argue that the case does not involve such question:
    Provided that nothing in this sub-section shall be deemed to take
    away or abridge the power of the Court to hear, for reasons to be
    recorded, the appeal on any other substantial question of law, not
    formulated by it, if it is satisfied that the case involves such
    question.
  6. Second appeal on no other grounds.-No second appeal
    shall lie except on the grounds mentioned in Section 100.”
  7. As per Section 100 CPC, the appeal would lie to the High Court from the
    decree passed in appeal by any Court subordinate only if the High Court is
    satisfied that the case involves a substantial question of law; such question is
    required to be stated in the Memorandum of Appeal; the High Court is required to
    formulate the question on being satisfied that the same is involved in the case;
    the appeal is to be heard on the question so formulated; and at the time of
    hearing, the respondent could urge that the case does not involve such a
    question. The proviso to sub-section (5) of Section 100 CPC makes it clear that
    the Court could hear the appeal on any other substantial question of law not
    16
    formulated by it, but only after recording the reasons that the case involves such
    a question. In the case of Surat Singh (Dead) v. Siri Bhagwan and Ors.: (2018)
    4 SCC 562 this Court has pointed out the contours of the powers of High Court
    under the proviso to sub-section (5) of Section 100 CPC as under:-
    “21……… The proviso to sub-section (5), however, also
    recognises the power of the High Court to hear the appeal
    on any other substantial question of law which was not
    initially framed by the High Court under sub-section (4).
    However, this power can be exercised by the High Court
    only after assigning the reasons for framing such additional
    question of law at the time of hearing of the appeal”.
  8. We are clearly of the view that the proviso to sub-section (5) of Section
    100 CPC is not intended to annul the other requirements of Section 100 and it
    cannot be laid down as a matter of rule that irrespective of the question/s
    formulated, hearing of the second appeal is open for any other substantial
    question of law, even if not formulated earlier. The said proviso, by its very
    nature, could come into operation only in exceptional cases and for strong and
    convincing reasons, to be specifically recorded by the High Court. There being
    no such strong and convincing reason in the present case to formulate and hear
    the second appeal on any other question of law, the High Court cannot be faulted
    in rejecting the contentions urged on behalf of the plaintiff-appellant in this
    regard.
    17
  9. For what has been discussed hereinabove, we are satisfied that the relief
    of specific performance of agreement in question has rightly been declined by the
    First Appellate Court and the High Court. No case for interference being made
    out, the appeal stands dismissed.
    ………………………………………..J.
    (ABHAY MANOHAR SAPRE) ………………………………………..J.
    (DINESH MAHESHWARI) 1
    New Delhi,
    Dated: 15th February, 2019.