Holding

The plaintiff had sufficiently demonstrated readiness and willingness to perform his part of the contract, and the High Court's finding to the contrary was erroneous; therefore, the decree for specific performance was restored.

Summary

The husband of appellant No.1 (Nunu Mahto) filed a suit for specific performance against the respondent for failure to return sale deeds, claiming he was ready to pay the consideration. After his death, his heirs substituted as plaintiffs. The trial court decreed specific performance, which was affirmed by the first appellate court. The respondent appealed to the Patna High Court, which reversed the decree on the ground that the plaintiff had not proved his readiness and willingness to perform his part of the contract under Section 16(c) of the Specific Relief Act, 1963. On appeal, the Supreme Court held that the plaint contained specific averments of readiness, the plaintiff testified that he had tendered the money, and the deposit was made within the time ordered, rendering the High Court's finding contrary to the record. Consequently, the Supreme Court set aside the High Court judgment, restored the trial court and appellate court decrees, and allowed the appeal.

Issues considered

Whether the plaintiff proved, as required by Section 16(c) of the Specific Relief Act, 1963, that he was ready and willing to perform his part of the contract.
Whether the decree for specific performance can be set aside on the basis of alleged lack of such proof when the record shows the plaintiff had tendered consideration and made the required deposit.

Legislation cited

Code of Civil Procedure, 1908s. 100
Specific Relief Act, 1963s. 16(c)

Subjects

specific performancecontractreadiness and willingnessSpecific Relief ActSection 16(c)civil appealdecree restorationoral submission

Judgment

-f

\ MOST. ETWARI DEVI AND ORS. A
v.
MOST. PARVATI DEVI

JANUARY 17, 2006

[ARIJIT PASAYAT AND TARUN CHATTERJEE, JJ.] B

'y Specific Relief Act, 1963; Section. 16(C):

Suit for specific performance of contract-Al/owed by Trial Court and
affirmed by first Appellate Court-Reversed by High Court on grounds that c
neither pleading nor evidence tendered by the plaintiff proved that he was
ready and willing to perform his part of the contract-On appeal, held: Specific
averments regarding readiness and willingness to perform his part of the
contract made by the plaintiff in the plaint-Plaintiff as prosecution witness
~ categorically stated that he went to the defendant to tender the consideration D
~ amount in fulfilment of his part of the contract but respondent was not willing
\

to perform his part of the contract-Moreover. the defendant did not raise any
such plea against the plaintiff before the Trial Court or the first Appellate
Court-Besides, Plaintiff deposited the amount in question in terms of order
of the Trial Courl-fn lhe facls and circumstances of the case, the High Court
should not have acted on the oral submission of the respondent-Hence the E
order of the High Court indefensible.

Husband of appellant No. I filed a suit for specific performance
r\
' against the respondent on the ground that the respondent had failed to
perform his part of the contract though he was ready and willing to
perform his part of the contract. Plaintiff died and his legal heirs were F
substituted. Trial Court decreed the suit, which was affirmed by the first
Appellate Court. Aggrieved, respondent filed second appeal before the
High Court. Single Judge of the High Court dismissed the suit by reversing
the order of the Trial Court. Hence the present appeal.
G
Allowing the appeal, the Court

i HELD. 1. 1. The findings of the High Court are contrary to the
materials on record. As noted by the first Appellate Court, specific
averments regarding readiness and willingness of the plaintiff to perform
447 H
448 SUPREME COURT REPORTS 120061 I S.C.R.

A his part of the contract have been made. Additionally, the plaintiff who
was examined as Prosecution Witness has categorically stated that he had
gone to tender the money, that is the consideration, to the defendant who
was not agreeable to return the sale deeds and therefore the only course
left open to the plaintiff was to file a suit. On this ground alone, the
B judgment of the HiJ?lt Court is vulnerable. 1449-F-G-H; 450-AI

1.2. There can be no quarrel with the proposition that in a suit for
specific performance of the contract, the plaintiff must prove that he was
ready and willing to perform his part of the contract continuously between '<
the date of the contract and the date of hearing of the suit. But the finding
C that the plaintiff has not proved his capacity to perform his part of the
contract as he was not even ready to deposit the money in terms of the
trial Court's order is factually wrong. No such plea was raised by the
defendant either before the first Appellate Court or before the High Court
in the second appeal. However, the deposit was made well within one
month's time granted by the Trial Court by its judgment and decree.
D Notwithstanding the deposit, an application for extension of time was filed. '
The High Court should have ignored the app1ication and should not have
put any emphasis thereon as verification of the records would have
revealed that the payment had been made. Even otherwise there was no
such plea taken by the respondent about the non deposit within time
E granted by the Trial Court. The High Court should not have acted on an
oral submission made by the respondent without granting of an
opportunity to the present appellants to have their say in the matter.
Hence, the impugned judgment of the High Court is indefensible and set
aside. The judgment and decree passed by the Trial Court and the first
Appellate Court are restored. 1450-B-C-D-E-Fl
F
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1514 of:.?.000.

From the Judgment and Order dated 11.5.1999 of the Patna High Court
in Appeal from Appellate Decree No. 23 of 1984 (R).

G Gopal Prasad for the Appellants.

K.K. Gupta for the Respondent.
\-
fhe Judgment of the Court was delivered by

ARIJ IT PASAYA T, J. Challenge in th is appeal is the judgment of the
H
MOST. ETWARI DEVI v MOST. l'ARVATI DEVI [PASAYA T. J.] 449

learned Single Judge of the Patna High Court holding that the appellants A
\ were not entitled to a decree for specific performance of contract. In a second
appeal filed by the respondent, the judgment and decree of the trial court as
affirmed by the first Appellate Court were reversed and suit of the plaintiff
was dismissed. Originally the suit was filed by Nunu Mahto, husband of
appellant No. 1, father of appellant No. 5. After death of Nunu Mahto his
legal heirs were substituted. The High Court proceeded on the basis that the B
plaintiff had not proved that he was ready and willing to perform his part of
the contract. There was neither pleading nor evidence was tehdered in terms
y of requirement of Section 16(c) of the Specific Relief Act, 1963 (in short the
'Act'). Learned counsel for the appellants highlighted as to how the judgment
of the High Court suffers from various infirmities both faetually and on C
principle of law. None appears for the respondent though she was represented
by a counsel who did not appear on several dates of hearing and also is not
present today.

The second appeal was admitted by the High Court and following
.J questions were framed which according to the High Court were substantial D
~ questions of law as required to be framed under Section I 00 of the Code of
Civil Procedure, 1908 (in short ·code')

(i) Whether the finding that the plaintiffs were always ready and
willing to perform their part of contract is vitiated on account of
absence of evidence on the point? E
(i) Whether the decree passed by the lower appellate court is
maintainable in absence of the evidence on the point refer,-ed to
above?
'\
The High Court recorded findings to the effect that there were no p
specific averments in the pleadings that the plaintiff was ready and willing
to perform his part of the contract and1 also no evidence was adduced in this
regard. As rightly pointed out by learned counsel for the appellants, the
findings are contrary to the materials on record. As noted by the first Appellate
Court in various paragraphs of the plaint. more particularly, paragraphs I 8
and 22 specific averments regarding readiness and willingness of the plaintiff G
to perform his part of the contract have been niade. Additionally, the plaintiff
Nunu Mahto who was examined as PW9 has categorically stated that he had
gone to tender the money. that is the consideration, to the defendant who was
not agreeable to return the sale deeds and therefore the only course left open
to the plaintiff was to file a suit. H
450 SUPREME COURT REPORTS [2006[ I S.C.R.

A On this ground alone, the judgment of the High Court is vulnerable.
Another factor which appears to have weighed with the High Court is that
even though one month time was granted by the trial court to the plaintiff to
deposit a sum of Rs. 1500, this was not done. This again is a finding contrary
to the materials on record. There can be no quarrel with the proposition that
B in a suit for specific performance of the contract. the plaintiff must prove that
he was ready and willing to perform his part of the contract continuously
between the date of the contract and the date of hearing of the suit. But the
finding that the plaintiff has not proved his capacity to perform liis part of
the contract as he was not even ready to deposit the money in terms of the
trial court's order is factually wrong. It appears that no such plea was raised
C by the defendant before the first appellate court. In the memorandum of
appeal filed before the High Court in the second appeal also, there was no
such plea taken. On perusal of the records, it appears that the deposit was
made on 19.12.1978, that was well within one month time granted by the
trial court by its judgment and decree dated 25.11.1978. Confusion appears
to have arisen because notwithstanding the deposit, an application for extension
D of time was filed. The High court should have ignored the application and
should not have put any emphasis thereon a~ verification of the records )

would have revealed that the payment had been made. Even otherwise there
was no such plea taken by the defendant (respondent herein) about the non
deposit within time granted by the trial court. The High Court should not
E have acted on an oral submission made by the learned counsel for the
defendant, who was the appellant before it, without granting of an opportunity
to the present appellants to have their say in the matter. Above being the
position, the impugned judgment of the High Court is indefensible deserves
to be set aside which we direct. The inevitable conclusion is that the judgment
and decree passed by the trial court and the first appellate court are to be
; .
F restored. The appeal is allowed accordingly. There shall be no order as to
costs.

S.K.S. Appeal allowed.