Patna High Court
Girja SinghversusSri Bhagwan Singh
- Decided
- Disposal
- DISMISSED
- Bench
- RAMESH CHAND MALVIYA
Holding
The High Court affirmed the appellate court’s decision, holding that the plaintiffs failed to satisfy the statutory requirement of readiness and willingness and that the appellate court did not err in setting aside the decree.
Summary
Mahabir Prasad and others filed title suits in 1968 seeking specific performance of a contract for sale of land, alleging the defendant had taken an advance and was obligated to execute a sale deed. The trial court granted specific performance, but the appellate court set aside the decree, holding that the plaintiffs had not complied with Form 47 of the CPC nor averred their readiness and willingness to perform under Section 16(c) of the Specific Relief Act. The appellants filed second appeals under Section 100 CPC challenging the appellate court’s decision and raising the questions whether an appellate court may frame issues not raised in the pleadings and whether a suit can be dismissed for non‑compliance with statutory requirements absent a pleading. The High Court examined the statutory provisions, Supreme Court precedents, and the evidence, concluding that the plaintiffs failed to prove continuous readiness and willingness and that the appellate court correctly applied the law. Consequently, the High Court affirmed the appellate court’s judgment and dismissed the second appeals.
Issues considered
- Whether an appellate court can frame and decide issues that do not arise from the pleadings.
- Whether the suit for specific performance is maintainable when the plaintiff has not pleaded compliance with Section 16(c) of the Specific Relief Act.
- Whether the absence of an averment of readiness and willingness to perform bars decree of specific performance.
- Whether the appellate court erred in setting aside the trial court’s decree on the ground of non‑compliance with Form 47 of the CPC.
Legislation cited
- Code of Civil Procedure, 1908 — s. 100, Form 47 of Appendix I
- Specific Relief Act — s. 16(c), 20
Subjects
- Specific performance
- Specific Relief Act
- Form 47
- Section 16(c)
- Civil Procedure Code
- Appellate jurisdiction
- Issue framing
- Land sale contract
- Bihar Consolidation Act
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
SECOND APPEAL No.174 of 1992
======================================================
Mahabir Prasad Son of late Ram Singaran Singh, Resident of Village
Bhatauli, P.S. Nawanagar, District Bhojpur.
... ... Appellant/s
Versus
1.1. Mostt. Dhamuniya Devi W/o Sri Bhagwan Singh, Resident of Village Babu
Ganj English, P.O. Bisikala, P.S. Sikaraul, District Buxar.
1.2. Bikarma Singh Son of late Bhagwan Singh, Resident of Village Babu Ganj
English, P.O. Bisikala, P.S. Sikaraul, District Buxar.
1.3. Raj Kishore Singh alias Bucha Singh, Son of late Bhagwan Singh, Resident
of Village Babu Ganj English, P.O. Bisikala, P.S. Sikaraul, District Buxar.
1.4. Chandradeo Singh S/o Late Bhagwan Singh, Resident of Village Babu Ganj
English, P.O. Bisikala, P.S. Sikaraul, District Buxar.
2. Lallan Singh Son of late Babu Ram Singh, Resident of Village Bhatauli, P.S.
Nawanagar, District Bhojpur, at present District Buxar.
... ... Respondent/s
======================================================
with
SECOND APPEAL No. 175 of 1992
======================================================
1.1. Vijay Kumar Singh Son of Late Girja Singh, Resident of Village Bhatauli,
P.S. Nawanager, Dist. Buxar.
1.2. Ishwer Singh Son of late Girja Singh, Resident of Village Bhatauli, P.S.
Nawanager, Dist. Buxar.
... ... Appellant/s
Versus
1.1. Mostt. Dhanmuniya Devi W/o Late Bhagwan Singh, Resident of Village
Babuganj, P.O. Bisikalo, P.S. Sikaraul, District - Buxar.
1.2. Bikram Singh Son of late Bhagwan Singh, Resident of Village Babuganj,
P.O. Bisikalo, P.S. Sikaraul, District - Buxar.
1.3. Raj Kishore Singh alias Bucha Singh, Son of Late Bhagwan Singh, Resident
of Village Babuganj, P.O. Bisikalo, P.S. Sikaraul, District - Buxar.
1.4. Chandradeo Singh Son of late Bhagwan Singh, Resident of Village
Babuganj, P.O. Bisikalo, P.S. Sikaraul, District - Buxar.
2. Sri Lallan Singh Son of late Babu Ram Singh, Resident of Village Bhatauli,
P.S. Nawanager, Dist. Bhojpur at present Dist. Buxar.
... ... Respondent/s
======================================================
Appearance :
(In SECOND APPEAL No. 174 of 1992)
For the Appellant/s : Mr. Din Bandhu Singh, Advocate
Mr. Satya Deo Kumar, Advocate
For the Respondent/s : Mr. Yogendra Pd. Sinha, Advocate
(In SECOND APPEAL No. 175 of 1992)
For the Appellant/s : Mr. Din Bandhu Singh, Advocate
Patna High Court SA No.174 of 1992 dt.17-02-2026
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Mr. Satyadeo Kumar, Advocate
For the Respondent/s : Mr. Yogendra Pd. Sinha, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA
CAV JUDGMENT
Date: 17-02-2026
Heard Mr. Din Bandhu Singh, learned counsel
for the appellant assisted by Mr. Satyadeo Kumar and Mr.
Yogendra Prasad, learned counsel for the respondents in both
the appeals.
2. Both Second Appeal have been filed under
Section 100 of the Code of Civil Procedure (hereinafter read as
“CPC”) by the appellant/respondent/plaintiffs against the
judgment dated 16.04.1992 and decree dated 20.04.1992
passed by learned Additional District Judge, Buxar, whereby
and where under the learned Appellate Court in Title Appeal
Nos. 04 of 1978 and 05 of 1978 set asides the judgment and
decree dated 17.12.1977 passed in Title Suit Nos. 32 of 1968
and 30 of 1968 by learned Munsif-I, Buxar.
3. Following, substantial questions of law have
been formulated for determination: -
(i). Whether the appellate Court could
have framed issue for decision of the
appeal which does not arise out of
pleadings and the decision arrived at by
the appellate Court can be sustained?
(ii) Whether when there is no pleading as
to how the suit was maintainable and issue
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regarding maintainability have been
framed and decided by the appellate Court
setting aside the Judgment and decree of
the trial Court without assigning other
reason on merit and evidence?
4. The respondents herein were the
appellants/defendants before the learned appellate Court and
learned trial Court and the appellants here in were
respondents/plaintiffs. The appellants/respondents/plaintiffs
filed Title Suit Nos. 32 of 1968 and 30 of 1968 for Specific
Performance of Contract which was decreed vide judgment and
decree dated 17.12.1977 passed by learned Munsif, Buxar.
Being aggrieved, the respondents/appellants/defendants filed
Title Appeal No. 04 of 1978 and 05 of 1978 which was allowed
by the Additional District Judge, Buxar, vide judgment dated
16.04.1992 and decree dated 20.04.1992. Hence, the present
Second Appeal has been filed by the appellants/
respondents/plaintiffs.
5. In order to gauge the matter in its correct
perspective, it is necessary to briefly re-state what the suit
entails. The appellants/respondents/plaintiffs filed Title Suit
No. 32 of 1968 and 30 of 1968 for Specific Performance of
Contract in respect to the lands appertaining to C.S. Khata No.
75 and described in Schedule I of both the plaint for a direction
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to the defendant to execute the sale deed in favour of the
plaintiffs on receipt of the balance consideration money and in
the event of non-execution the same should be executed
through the process of the Court.
6. The case of the plaintiffs was that defendant
was in need of money and entered into an agreement to sale of
schedule I property of the plaint for a consideration of Rs.
5,000/- and executed an agreement for sale on 10.04.1966 after
taking Rs. 500/-as advance and agreed to pay the rest Rs.
4500/- at the time of execution of the deed. Therefore, the
plaintiffs prayed for the decree for specific performance of
contract for sale. The defendant has denied having entered into
any agreement for sale nor he has taken Rs. 500/- as an
advance for the execution of the sale deed. According to the
defendant, he was in need of the money to purchase a land in
village Babuganj English and for that purpose he had taken a
loan of Rs. 500/- from the plaintiffs and executed a hand note
which has been forged as an agreement to sale in collusion with
the scribe. The defendant has approached the plaintiffs several
times to repay the loan, but the plaintiffs have neither accepted
the repayment of loan nor returned the head note. Further,
according to the defendant, the schedule I land of the plaint is
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valued not less than Rs. 8,000/- and the defendant had no
intention to sell the same.
7. The learned Trial Court, on the basis of the
pleadings of the parties, framed issues and took up the issue
nos. 1 and 5 at first.
8. Issue Nos. 1 & 5 was whether the suit framed
is maintainable and that whether the suit abated in view of
Section 4(c) of the Bihar Consolidation of holdings and
prevention of Fragmentation Act? The lawyer for the defendant
argued that the suit had abated under Section 4(c) of the Bihar
Consolidation of Holdings and Prevention of Fragmentation
Act. This section typically moves land-related disputes out of
civil court and into the jurisdiction of consolidation officers.
The trial Court rejected the defendant's argument and allowed
the suit to proceed for specific performance of contract, not a
suit for the "correction of records" or a "declaration of
rights/interests in land" and further clarified that Section 4(c)
only applies to three specific types of proceedings:
a) Correction of records.
b) Declaration of rights or interests in any
land.
c) Adjudication of any other right for
which proceedings can be taken under the
Act.
9. Issue no. 4 was whether the defendant entered
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into agreement for sale? The learned trial Court noted that the
endorsement Ext 5 which is the deed of agreement for sale, is
in the defendant's own hand mark making it clear that the
money was an advance for the sale of land, which makes the
plea of the defendant false. The plaintiffs produced an
arbitration agreement Ext 2 and award Ext 1. While the suit
wasn't specifically to enforce the arbitration, the Court found
these documents strengthened the plaintiff's case. The
defendant filed several petitions Ext B series to show enmity,
but the trial Court found most were filed post litem motam.
Crucially, in these earlier petitions, the defendant failed to
mention his claim that he signed a blank paper, leading the trial
Court to view that story as an afterthought. Further the
plaintiff’s six witnesses, including the plaintiffs, testified that
the defendant took the Rs. 500/- advance for the land sale. The
defendant produced seven witnesses. However, the trial Court
found the key witnesses DW-1 and 2 unreliable due to previous
enmity with the plaintiff as he was an accused in a murder case
involving a witness's uncle. The trial Court found it
unbelievable that these enemies would have been present at the
plaintiff's house during the transaction. The trial Court
dismissed the defendant's version as a cooked-up story for the
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purpose of litigation. The trial Court highlighted that the
defendant had already sold almost all his other land in village
Bhatauli, except for the suit lands.
10. Issue No. 2 and 6 was that whether the
plaintiffs have valid cause of action for the suit and whether the
plaintiffs are entitled to any relief, if so to what relief? The
learned trial Court noted that the plaintiffs have valid cause of
action for the suit and the plaintiffs are entitled for decree of
specific performance of contract for sale and thus, directed the
defendant to execute the sale deed in favor of the plaintiffs
after receiving Rs. 4,500/- and obtaining permission from the
consolidation authority, if necessary, within three months
failing which the plaintiffs shall be entitled to get it registered
through the process of the Court.
11. Defendant being aggrieved by the impugned
judgment and decree passed in Title Suit No. 32 of 1968 and 30
of 1969 filed title appeal before the learned Additional District
Judge, Buxar wherein learned appellate Court held that
respondents/plaintiffs in both the appeal have failed to comply
with the mandatory requirement of Form 47 of Appendix I of
CPC and Section 16(c) of the Specific Relief Act. Because
these legal provisions are mandatory, the court ruled that the
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plaintiffs were not entitled to a decree for the specific
performance of a contract for sale. The appellate Court allowed
both the appeal stating that the trial Court erred in both law and
fact by granting the initial decree and ordered both appeals
filed against the original judgment and allowed on contest. The
trial Court judgments and decrees in favor of the plaintiffs were
set aside with no order as to cost.
12. Learned counsel for the appellants/
respondents/plaintiffs in both the appeal submits that
admittedly mere perusal of the judgment of appellate Court
reveals that the learned appellate Court while delivering his
judgment have not framed any issue in appeal against the
mandate of law. Similarly, clause (c) of Section 16 (1) of the
Specific Relief Act lays down:
“16. Specific performance of a contract
cannot be enforced in favour of a person-
(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…….”
12.i. He further submits that appellants/
respondents/plaintiffs pleaded in their plaint that he was ready
to pay the rest consideration money and money is ready with
him and to this effect several times made request to the
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respondents/appellants/defendants therefore the judgment of
appeal have no leg to stand and that it is against the law. So,
there is no application of Section 16 (1) (c) of the Specific
Relief Act and the trial Court rightly says that the suit of the
appellants/respondents/plaintiffs is maintainable and the claim
sought by the appellants/respondents/plaintiffs is in accordance
with the mandate of Specific Relief Act and rightly allowed the
suit of the appellants/respondents/plaintiffs. So far substantial
questions of law formulated by this court is concerned the
appellants submits that the Respondents/Appellants/Defendants
in Title Suit No. 32 of 1968 has not averted any statement by
way of pleading, from non-compliance of provision of Section
16 (1) (c) of the Specific Relief Act. Therefore, the learned
Additional District Judge travel beyond the pleadings of the
parties which is against the mandate of the law. It is not open to
Appellate Court to considered a plea not pleaded by the party
and give a judgment. Admittedly this plea was not pleaded by
the respondents/appellants/defendants.
12.ii. Learned counsel for the appellants/
respondents/plaintiffs relied upon the judgment rendered by the
Hon’ble Supreme Court in Union of India v. Ibrahim Uddin &
Anr. reported in (2012) 8 SCC 148 wherein it was held in para
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26, 41, 57, 62 and 63 that:
“26. The Appellate Court should not,
ordinarily allow new evidence to be
adduced in order to enable a party to raise
a new point in appeal. Similarly, where a
party on whom the onus of proving a
certain point lies fails to discharge the
onus, he is not entitled to a fresh
opportunity to produce evidence, as the
Court can, in such a case, pronounce
judgment against him and does not require
any additional evidence to enable it to
pronounce judgment. (Vide: Haji
Mohammed Ishaq Wd. S. K. Mohammed &
Ors. v. Mohamed Iqbal and Mohamed Ali
and Co., AIR 1978 SC 798).
41. Thus, from the above, it is crystal clear
that application for taking additional
evidence on record at an appellate stage,
even if filed during the pendency of the
appeal, is to be heard at the time of final
hearing of the appeal at a stage when after
appreciating the evidence on record, the
court reaches the conclusion that
additional evidence was required to be
taken on record in order to pronounce the
judgment or for any other substantial
cause. In case, application for taking
additional evidence on record has been
considered and allowed prior to the
hearing of the appeal, the order being a
product of total and complete non-
application of mind, as to whether such
evidence is required to be taken on record
to pronounce the judgment or not, remains
inconsequential/in-executable and is liable
to be ignored.
57. There may be exceptional
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circumstances where the High Court is
compelled to interfere, notwithstanding the
limitation imposed by the wording of
Section 100 CPC. It may be necessary to
do so for the reason that after all the
purpose of the establishment of courts of
justice is to render justice between the
parties, though the High Court is bound to
act with circumspection while exercising
such jurisdiction. In second appeal the
court frames the substantial question of
law at the time of admission of the appeal
and the Court is required to answer all the
said questions unless the appeal is finally
decided on one or two of those questions
or the court comes to the conclusion that
the question(s) framed could not be the
substantial question(s) of law. There is no
prohibition in law to frame the additional
substantial question of law if the need so
arises at the time of the final hearing of the
appeal.
62. This Court while dealing with an issue
in Kalyan Singh Chouhan v. C.P. Joshi,
AIR 2011 SC 1127, after placing reliance
on a very large number of its earlier
judgments including Messrs. Trojan & Co.
v. RM.N.N. Nagappa Chettiar, AIR 1953
SC 235; Om Prakash Gupta v. Ranbir B.
Goyal, AIR 2002 SC 665; Ishwar Dutt v.
Land Acquisition Collector & Anr., AIR
2005 SC 3165; and State of Maharashtra
v. M/s. Hindustan Construction Company
Ltd., AIR 2010 SC 1299, held that relief
not founded on the pleadings cannot be
granted. A decision of a case cannot be
based on grounds outside the pleadings of
the parties. No evidence is permissible to
be taken on record in absence of the
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pleadings in that respect. No party can he
permitted to travel beyond its pleading and
that all necessary and material facts
should be pleaded by the party in support
of the case set up by it. It was further held
that where the evidence was not in the line
of the pleadings, the said evidence cannot
be looked into or relied upon. 63. In
Bachhaj Nahar v. Nilima Mandal & Ors.,
AIR 2009 SC 1103, this court held that a
case not specifically pleaded can be
considered by the court unless the
pleadings in substance contain the
necessary averments to make out a
particular case and issue has been framed
on the point. In absence of pleadings, the
court cannot make out a case not pleaded,
Suo motu.
Therefore, in view of the above, there is
nothing on record to show that Maratha
Government had made a gift to the
ancestors of the plaintiff. The claim of the
plaintiff to get a title by virtue of the Will
cannot be taken note of being not based on
pleadings. Even this Will is dated 1.3.1929,
affidavits filed by the plaintiff/respondent
no.1 before this Court reveal that on
26.3.2012 he was 80 years of age. The
date of Will is 1.3.1929. So, it appears that
the Will had been executed prior to the
birth of the plaintiff/respondent no.1. In
such a fact-situation, it could not have
been taken into consideration without
proper scrutiny of facts and, that too,
without any pleading. In the plaint, the
plaintiff for the reasons, best known to
him, did not even make reference to the
Will. In absence of any factual foundation
of the case, based on Will, the first
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appellate Court committed a grave error
taking into consideration the said Will.
More so, the Will had not been proved as
required under Section 68 of the Evidence
Act.”
12.iii. He further relied upon the judgment
rendered by the Hon’ble Supreme Court in Kedar Nath Motani
and others. V. Prahlad Rai and others reported in AIR 1960
SC 213 and upon T. D. Gopalan v. Commissioner of Hindu
Religious and Charitable Endowments, Madras reported in
AIR 1972 SC 1716, wherein it was held in para 9 that:
“9. The High Court next proceeded to
reproduce a summary of the statement of
each of the witnesses produced by the
defendants. No attempt whatsoever was
made to discuss the reasons which the
learned District Judge had given for not
accepting their evidence except for a
general observation here and there that
nothing had been suggested in the cross-
examination of a particular witness as to
why he should have made a false
statement. We apprehend that the uniform
practice in the matter of appreciation of
evidence has been that if the trial court has
given cogent and detailed reasons for not
accepting the testimony of a witness the
appellate court in all fairness to it ought to
deal with those reasons before proceeding
to form a contrary opinion about accepting
the testimony which has been rejected by
the trial court. We are, therefore, not in a
position to know on what grounds the High
Court disagreed with the reasons which
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prevailed with the learned District Judge
for not relying on the evidence of the
witnesses produced by the defendants.”
12.iv. He further submits that so far second
question of Substantial question of law is concerned in this
regard appellants submits that there is no pleading on behalf of
respondents regarding the maintainability of the suit relating to
Section 16 (1) (c) of the Specific Relief Act rather the plea on
the maintainability were barred by limitation, waiver, estoppels
and acquiescence and cause of action which the trial Court
negated the same and held that suit is maintainable in all
practical purpose, the Exhibit-2 of the appellants/
respondents/plaintiffs clearly comes under the ambit of
Specific Relief Act and the same was executed by the
respondents/appellants/defendant in favour of appellants/
respondents/plaintiffs. From the above narration it is crystal
clear that the Judgement and Decree passed by Additional
District Judge, Buxar is/are fit to be set aside.
13. Learned counsel for the respondents/
appellants/defendant in both the appeal submits that the decree
in both the suits were assailed on the ground that both the suits
were not in conformity with form 47 of Appendix of 1st
Schedule of the CPC and against the mandatory provision of
Section 16 (c) of the Specific Relief Act and it was obligatory
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on the part of the appellants/respondents/plaintiffs of both the
suit not only to ever in the plaint, but also to prove by evidence
that there were always been ready and willing to perform their
part of agreement. As per section 16 (c) of the specific relief
Act, requirement is that there must have been and averment to
this effect in the plaint that the appellants/respondents/plaintiffs
was always ready & willing to perform his part of contract, but
there is no pleading/averment in the plaint that the
appellants/respondents/plaintiffs were always ready & willing
to perform their part of contract.
13.i. He further submits that from plain reading
of the plaint it would appear that the appellants/
respondents/plaintiffs only stated that the respondents/
appellants/defendants Babu Ram Singh was in necessary of
money and he entered into an agreement for sale of Schedule I
property for a consideration of Rs. 5,000/- and executed an
agreement for sale on 10.04.1966 after taking Rs. 500/- as
advance towards the consideration amount and on request did
not execute sale deed so, both the plaintiffs who are brother
filed separate two Title Suit for a specific performance of the
contract. In proof of their case the plaintiffs were examined but
they also did not State that they were ready & willing to
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perform their part of contract, but in spite of that the learned
Munsif decreed the Suit which has been set aside by the
Appellate Court.
13.ii. He further contends that on the point of
readiness and willingness, the co-ordinate bench of this Court
in Nawal Kishore v. Smt. Kauleshwari Devi and Anr. reported
in AIR 1986 Patna 301 has clearly laid down that there ought
to be and averment in the plaint regarding readiness &
willingness on the part of the plaintiff to perform his part of
contract. It has been laid down in the said judgment that there
must be specific statement under Section 16 (1) (c) of the
Specific Relief Act regarding readiness and willingness. The
Hon'ble Supreme court in AIR 1990 SC 662 has also laid down
that if the plaintiff brought a suit for specific performance of
contract for conveyance and in his plaint did not made
statement regarding readiness & willingness to perform his part
of contract the plaintiff is not entitled to get decree under
specific relief Act. The leaned Appellate Court considered the
legal position and came to the conclusion that since there was
no averment in the plaint nor in evidence of the plaintiffs that
they were ready & willing to perform their part of contract.
13.iii. He further submits that on behalf of the
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learned counsel appearing for appellant only submitted that the
appellate Court cannot make out a third case and as such the
finding recorded by the learned appellate Court is bad and fit to
be set aside by this Hon'ble Court. This submission of the
learned counsel appearing on behalf of the appellants is not
correct, since the present suit is under specific performance of
contract and not a general suit for declaration of Title or for
confirmation of possession/recovery of possession rather in a
suit for specific performance of contract, mandatory provision
has been laid down under specific relief Act, regarding there
must be averment in the plaint and the plaintiffs were ever
ready and willing to perform their part of contract. In the case
of Mahmood Khan and Anr. v. Ayub Khan and others
reported in 1978 Allahabad Page 463 it has also been laid
down that compliance of requirement of Section 16 (C) of
Specific Relief Act, was mandatory even though the defendant
had not raised to that effect in the written statement though
there was no issue. It was observed that the mandate of the
statue required that the plaintiffs must aver in the plaint and
must give proof of the fact that he was and has been ready and
willing to perform his part of contract. As it appears from the
pleading of both the suit there is no averment of tender of the
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balance consideration money before demanding of execution of
sale deed. No notice was served before filing of the suit. In the
case Rajendra Prasad Rai and Anr. v. Rajdeva Rai and Anr.
reported in AIR 1974 Allahabad 294 it has been specifically
laid down that there should have been notice to the defendant
before filing of the suit and depositing the balance of
consideration money.
13.iv. He further submits that in the present suit
the judgment was delivered on 17.12.1977 and Appeal before
appellate Court was preferred on 17.01.1971, but the balance
amount as per direction of the trial court was not deposited
within the stipulated period. In Nawal Kishore v. Smt.
Kauleshwari Devi and Anr. (Supra), it has clearly been laid
down that the plaintiff ought to have been ready and willing
throughout to perform his part of contract, but the plaintiff even
the date of judgment after one month did not perform their part
of contract and failed to deposit the balance amount in the court
within the time specified in the trial court judgment and as such
the learned appellate Court set aside the judgment and decree
of the trial Court due to non-compliance of from 47 of
Appendix 1 of the CPC and Section 16 (1) (C) of the specific
relief Act, which is mandatory in a suit for specific
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performance of contract.
13.v. He lastly contends that the judgment and
decree passed by the Appellate Court does not require
interference in any way as the appellate Court had right to
decide the Appeal even if issue is not framed, but in this case,
issue was from that the suit is not maintainable and the learned
appellate Court rightly passed the order in setting aside the
judgment & decree of the trial Court and the present Second
Appeal be accordingly dismissed.
14. On meticulous examination of the materials
on record, impugned judgments and as well as averments made
by the learned counsels for the respective parties, it is apparent
that so far question of readiness and willingness to perform part
of the contract by adducing cogent evidence, acceptable
evidence has not been placed on record to prove plaintiff's
readiness and willingness. It is a settled law that for relief of
specific performance, the plaintiff has to prove that all along
and till the final decision of the suit, they were ready and
willing to perform their part of the contract. It is the bounden
duty of the plaintiff to prove his readiness and willingness by
adducing evidence. This crucial fact has to be determined by
considering all circumstances, including availability of funds
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and mere statement or averment in plaint of readiness and
willingness would not suffice.
15. The observations made by the Hon’ble
Supreme Court in Ouseph Varghese v. Joseph Aley reported in
(1969) 2 SCC 539. In paragraph 9 of the said judgment the
Hon’ble Supreme Court observed that:
“……….A suit for specific performance
has to conform to the requirements
prescribed in Forms 47 and 48 of the First
Schedule in the Civil Procedure Code. In a
suit for specific performance, it is
incumbent on the plaintiff not only to set
out agreement on the basis of which he
sues in all its details, he must go further
and plead that he has applied to the
defendant specifically to perform the
agreement pleaded by him but the
defendant has not done so. He must further
plead that he has been and is still ready
and willing to specifically perform his part
of the agreement. Neither in the plaint or
at any subsequent stage of the suit the
plaintiff has taken those pleas.”
In making these observations the Supreme Court relied on an
earlier decision reported in AIR 1968 SC 1355, Prem Rai v.
The D.L.F. Housing and Construction (P.) Ltd. wherein it was
observed in paragraph 5:
“There is also another reason for holding
that the appellant has made out no cause
of action with regard to the relief of
specific performance of the contract. It is
Patna High Court SA No.174 of 1992 dt.17-02-2026
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well settled that in a suit for specific
performance the plaintiff should allege
that he is ready and willing to perform his
part of the contract. In the present case, no
such averment is made in the plaint.”
16. The Hon'ble Supreme Court in the case of
Vijay Kumar & Ors. v. Om Prakash reported in 2018 SCC
Online SC 1913 had held that in order to obtain a decree for
specific performance, the plaintiff has to prove his readiness
and willingness to perform his part of the contract and the
readiness and willingness has to be shown throughout and has
to be established by the plaintiff. It was further held that the
relief for specific performance is purely discretionary. As it has
been pointed out by the learned counsel by the
appellants/respondents/plaintiffs that they have been and are
still ready and willing to specifically perform their part of the
contract, though the second paragraph of Form No. 47 of the
First Schedule of the CPC was averred by the plaintiffs in the
plaint, the plaintiffs made no averment in the plaint as required
in paragraph 3 of Form No. 47 regarding specific performance.
In the instant case, there is no documentary evidence to show
that the plaintiffs ever showed his willingness to perform his
part of the contract and there is nothing to show that the
plaintiffs ever sent any notice to the respondents/
Patna High Court SA No.174 of 1992 dt.17-02-2026
22/25
appellants/defendants to that effect.
17. The Hon’ble Apex Court in the case of
Beereddy Dasaratha Rami Reddy Vs. Manjunath reported in,
has held that mere omission to frame issue doesn’t vitiate the
trial. The Hon’ble Apex Court has held that “omission to frame
an issue as required under Order XIV Rule 1 of the Code of
Civil Procedure, 1908 doesn’t vitiate the trial where the parties
go to trial fully knowing the rival case and led evidence in
support of their respective contentions to refute contentions of
the other side.”
18. The Hon'ble Supreme Court in the decision
reported in Civil Appeal Nos. 7254 to 7256 of 2002 reported in
(2011) 12 SCC 18: AIR 2011 SC 3234, has observed as
follows:
"Now there is galloping inflation and
prices of immovable properties have
increased steeply, by leaps and bounds.
Market values of properties are no longer
stable or steady. We can take judicial
notice of the comparative purchase power
of the property in the year 1975 and now
as also steep in-crease in the value of the
immovable properties between then and
now,"
It has also been observed in the judgment, that the steep
increase in prices is a circumstance which makes it inequitable
to grant the relief of specific performance where the purchaser
Patna High Court SA No.174 of 1992 dt.17-02-2026
23/25
does not take steps to complete the sale within the agreed
period and the vendor has not been responsible for any delay or
non-performance.
19. Further, under Section 20 of the Specific
Relief Act. the specific performance is a discretionary remedy.
The Court is not bound to decree specific performance merely
because it is lawful to do so. It can be seen from section that
the discretion of the Court is not arbitrary but sound and
reasonable guided by the judicial principles and capable of
correction by a Court of Appeal. The cases in which the Court
may properly exercise discretion not to decree specific
performance has been enumerated in sub-section (2) of Section
20 of the Specific Relief Act. They are
(i) where the terms of the contract or the
conduct of the parties at the time of
entering into the contract or the other
circumstances under which the contract
was entered into are such that the contract,
though not avoidable, gives the plaintiff an
unfair advantage over the defendant; or
(ii) where the performance of the contract
would involve some hardship on the
defendant which he did not foresee.
whereas its non-performance would
involve no such hardship on the plaintiff;
(iii) where the defendants entered into the
contract under circumstances which
though not rendering the contract void-
able, makes it inequitable to enforce
specific performance.
Under the Specific Relief Act, the Court exercises equitable
Patna High Court SA No.174 of 1992 dt.17-02-2026
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jurisdiction. Section 20 of the Act makes it clear that the
jurisdiction to decree specific performance is discretionary and
there is no obligation on the part of the Court to grant the relief
sought merely because it is lawful to do so.
20. The relief of specific performance is an
extraordinary equitable remedy that compels a party to execute
the terms and conditions of the contract according to the
precise terms agreed upon between them or to execute it
substantially, so that in the given set of circumstance, complete
justice will be done between the parties. Since, this relief is
given exercising the equity jurisdiction the conduct of the
plaintiff should be fair. So far as this case is concerned,
considering the conduct of the plaintiff and the defendants,
interest of parties under the agreement, it would not be in the
interest of justice to grant the relief of specific performance.
The galloping raise in price with leaps and bounds should also
be considered. Under such circumstances granting of relief of
specific performance would put the defendants into undue
hardship and put the plaintiff under an unfair advantage and
therefore, the grant of specific performance would not be in the
interest of justice. Hence, the refusal of the relief of specific
performance by the appellate Court is justified.
Patna High Court SA No.174 of 1992 dt.17-02-2026
25/25
21. In light of the discussions made above,
submission made by both the parties, relevant provision of law
and the principal laid down by the Hon’ble Supreme Court in
different cases, this Court hereby decides the substantial
question of law in favor of the respondents/
appellants/defendants and do not find any flaw/ legal
error/perversity or patent illegality in the findings of Appellate
Court in law. In view of the above discussions and findings, the
judgment dated 16.04.1992 and decree dated 20.04.1992 of the
Appellate Court in Title Appeal Nos. 04 of 1978 and 05 of
1978 is hereby affirmed.
22. Accordingly, this Second Appeal No. 174 of
1992 and 175 of 1992 stands dismissed. There shall be no order
as to costs. Pending interlocutory application(s), if any, shall
stand disposed of.
23. Let the trial Court and appellate Court
records be transmitted to the concerned Court forthwith.
(Ramesh Chand Malviya, J)
Mayank/-
AFR/NAFR AFR
CAV DATE 05.02.2026
Uploading Date 17.02.2026
Transmission Date NA
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