BISWANATH GHOSH (DEAD) BY LRS. AND OTHERSversusGOBINDA GHOSH ALIAS GOBINDHA CHANDRA GHOSH AND OTHERS

                     [2014] 3 S.C.R. 1097


  BISWANATH GHOSH (DEAD) BY LRS. AND OTHERS                          A
                                v.
GOBINDA GHOSH ALIAS GOBINDHA CHANDRA GHOSH
                   AND OTHERS
          (Civil Appeal No. 3672 of 2007)
                                                                     B
                       MARCH 14, 2014

   [JAGDISH SINGH KHEHAR AND M.Y. EQBAL, JJ.)

      SPECIFIC RELIEF ACT, 1963: s.16(c) - Specific
performance - Readiness and willingness to perform contract          C
- Held: For compliance of s. 16(c) of the Act, it is not necessary
for the plaintiff to aver in the same words/used in the section
i.e. ready and willing to perform the contract - The readiness
and willingness of person seeking performance means that
the person claiming performance has kept the contract                D
subsisting with preparedness to fulfill his obligation and accept
the performance when the time for performance arrive - In the
instant case, the sequence of facts and events showed that
the plaintiffs-appellants were always ready and willing to
discharge their obligation and perform their part of the             E
agreement - Therefore, there was sufficient compliance of the
requirements of s.16(c) of the Act on their part.

    CODE OF CIVIL PROCEDURE, 1908: s.100 - Second
appeal - Substantial question of law - Held: Jurisdiction of         F
High Court to entertain a second appeal is confined only to
such appeal which involves substantial question· of law.

    The plaintiff-appellants took a loan of Rs. 3000 from
the defendants-respondents and executed a registered
kobala dated 24.11.1964. On a same day, a registered                 G
Ekrarnama was also executed between them stipulating
the terms of re-conveyance on payment of the loan
amount by the appellants to the respondents. In 1990, the
appellants filed a suit for recovery against the
                           1097                                      H
    1098   SUPREME COURT REPORTS              [2014] 3 S.C.R.


A respondents under the Bengal Money Lenders Act, 1940.
  The Munsif dismissed the suit. On appeal, the matter was
  remanded back to the Munsif with a direction to the trial
  court to allow the appellants an opportunity for amending
  the plaint and to add the prayer of specific performance
s of the contract and pass fresh judgment in accordance
  with law.

       The appellant amended the plaint adding the prayer
  of specific performance of contract to transfer the suit
  property in terms of the agreement for reconveyance. The
C Munsif allowed the amendment application and finally
  decreed the suit holding that the suit was not barred by
  limitation by holding that the order of amendment related
  back to the date of institution of the suit. The appeal
  before first appellate court was dismissed. The High
D Court allowed the second appeal. Hence the instant
  appeal.

       Allowing the appeal, the Court

E      HELD: 1. The judgment of remand passed by the first
  appellate court in first round of appeal revealed that both
  the parties made their submission on the interpretation
  of two documents, namely Kobala and the agreement of
  re-conveyance. It also revealed that there were exchange
  of letters whereupon the defendants-respondents in the
F reply letter expressed their willingness to reconvey the
  land but after harvest of aushpaddy on the suit land.
  Thereafter, the plaintiff issued another letter agreeing to
  have conveyance of the suit land after harvest on
  payment of Rs.3000/-. The defendant also replied to such
G letter agreeing to reconvey the suit land after the harvest.
  From these finding, it is evidently clear that a direction
  was issued to the Munsif to allow the plaintiff to amend
  the plaint. The appellate court also gave opportunity to
  the defendants-respondents for filing additional written
H statement. The plaint was amended and a relief for a
 BISWANATH GHOSH (DEAD) BY LRS. v. GOBIN DA GHOSH 1099
         ALIAS GOBINDHA CHANDRA GHOSH

decree of specific performance was added in the said           A
suit. The Munsif decreed the suit for specific performance
holding that the suit was not barred by limitation. [Paras
7, 9 and 10] [1105-C-E; 1107-B-E]
     2. The judgment passed by the High Court revealed
                                                               B
that the High Court, after referring to Section 16 and
Section 20 of the Specific Relief Act held that since the
readiness and willingness have not been averred and
proved, both the Munsif and first appellate court
committed error in decreeing the suit for specific
performance. The High Court further observed that by           C
converting a suit under Section 36 of the Bengal Money
lenders Act into a suit for specific performance, basically
the nature and character of the suit was changed and
such amendment was wrongly allowed in favour of the
plaintiffs-appellants. [Para 14) [1108-B-D]                    D
     3. Section 100 states that an appeal shall lie to the
High Court from an appellate decree only if the High Court
is satisfied that the case involves a substantial question
of law. It further mandates that the memorandum of             E
appeal precisely states the substantial question of law
involved in the appeal. If such an appeal is filed, the High
Court while admitting or entertaining the appeal must
record its satisfaction and formulate the substantial
question of law involved in the appeal. The appeal shall
then be heard on the questions so formulated and the           F
respondent shall be allowed to argue only on those
substantial questions of law. However, proviso to this
section empowers the court to hear on any substantial
question of law not formulated, after recording reasons.
If the memorandum of appeal arising out from an                G
appellate decree is not drawn up in the manner provided
in the Code, the Court may reject the memorandum of
appeal or return the same for the purposes of being
amended within the time fixed by the Court. The order of
High Court showed that the High Court while admitting          H
    1100    SUPREME COURT REPORTS                 [2014) 3 S.C R.


A the appeal did not formulate any substantial question of
  law and it was only after the arguments were concluded,
  some questions of law were formulated and the appeal
  was decided by passing the impugned judgment. [Paras
  18, 20 and 22] [1109-G-H; 1110-A-B, F, H; 1111-A-B]
B
       Sasikumar & Ors vs. Kunnath .Chel/appan Nair & Ors.
  (2005) 12 SCC 588: 2005 (4) Suppl. SCR 363; Gurdev Kaur
  & Ors. vs. Kaki & Ors. (2007) 1 SCC 546: 2006 (1) Suppl.
  SCR 27 - relied on.

C        4. On the question of readiness and willingness, the
    High Court held both the courts below totally neglected
    and failed to consider the point of readiness and
    willingness which must be continuous and both the
    courts below also failed to consider that this readiness
D   and willingness have not been averred and/ or not been
    proved. The High Court has committed error of law in
    setting aside the judgment and decree of the trial court
    and the first appellate court on the basis of said finding.
    It is well settled proposition of law that in a suit for
E   specific performance the plaintiff must be able to show
    that he is ready and willing to carry out those obligations
    which are in fact part of the consideration for the
    undertaking of the defendant. For the compliance of
    Section 16(c) of the Act, it is not necessary for the plaintiff
F   to aver in the same words used in the section i.e. ready
    and willing to perform the contract. The readiness and
    willingness of person seeking performance means that
    the person claiming performance has kept the contract
    subsisting with preparedness to fulfill his obligation and
    accept the performance when the time for performance
G   arrive. [Paras 24, 25, 26, 32] [1111-D-F; 1112-C-E; 1117-
    A-B]

     Kedar Lal Seal & Anr. vs. Hari Lal Seal AIR (39) 1952
  SC 47: 1952 SCR 179 ; Syed Dastagir vs. T.R.
H Gopalakrishna Setty (1999) 6 SCC 337: 1999 (1) Suppl. SCR
 BISWANATH GHOSH (DEAD) BY LRS. v. GOBINDA GHOSH 1101
         ALIAS GOBINDHA CHANDRA GHOSH

351; Mst. Sugani vs. Rameshwar Das and Anr AIR 2006 SC           A
2172: 2006 (1) Suppl. SCR 235 - relied on.

    Ardeshir Mama vs. Flora Sassoon 55 IA (PC) 360;
Maksud Ali & Ors. vs. Eskandar Ali 16 DLR (19_64) 138 Cort
and Gee vs. The Ambergate, Nottingham and Boston and             8
Eastern Junction Railway Company (1851) 17 Queen's
Bench Reports 127 - referred to.

     5. Admittedly on 1.12.1964, two documents were
executed viz. the sale deed in favour of the defendants
on payment of Rs.3,000/-. An agreement of re-conveyance          C
was also executed on the same day whereby the
defendants agreed to return back the property within the
stipulated time. The plaintiffs sent a notice through a
lawyer informing the defendants that as per the terms of
the agreement of re-conveyance the plaintiffs tendered           D
the amount of Rs.3,000/- and requested them to execute
the sale deed. The defendants deferred the date and time
on one pretext or another. In the same notice, the
plaintiffs reminded the defendants to execute the sale
deed after receiving the said amount. The defendants-            E
respondents on 29.4.1968 sent reply to the plaintiffs'
notice stating that that they were ready to execute and
register the sale deed in favour of the plaintiffs, but
because of the paddy grown on the land it could be done
after some time. The plaintiffs again sent a notice on           F
6.6.1968 referring lhe reply dated 29.4.1968 and
requesting the defendants to execute the sale deed after
harvesting the paddy. In spite of assurance, when the
d_efendants failed to execute the sale deed, the plaintiffs
filed the suit on 7.5:1970 stating therein that the plaintiffs   G
have every right to reconvey and to take possession of
the suit land. Although the suit was dismissed, but in
appeal the first appellate court while dismissing the
appeal mentioned in the order that the plaintiffs have
deposited the money as per directions of the Munsif              H
    1102   SUPREME COURT REPORTS                [2014] 3 S.C.R.


A before the date fixed in the judgment passed for spPcific
  performance. Sequence of facts and events showed that
  the plaintiffs-appellants were always ready and willing to
  discharge their obligation and perform their part of the
  agreement. The undisputed facts and events shall
B amount to sufficient compliance of the requirements of
  Section 16(c) of the Specific Relief Act. The impugned
  judgment passed by the High Court is set aside and the
  judgment and decree of the first appellate court
  confirming the judgment and decree passed by the
c Munsif are restored. [Paras 33, 34, 36] [1117-C-G; 1118-
  G-H·I 1120-A-E I F-G]

                         Case Law Reference:
        2005 (4) Suppl. SCR 363      Relied on       Para 16
D       2006 (1) Suppl. SCR 27       Relied on       Para 16
        1952 SCR 179                 Relied on       Para 26
        1999 (1) Suppl. SCR 351      Relied on       Para 27

E       2006 (1) Suppl. SCR 235      Relied on       Para 28
        55 IA (PC) 360               Referred to     Para 29
        16 DLR (1964) 138            Referred to     Para 30
        (1851) 17 Queen's Bench      Referred to     Para 31
F
        Reports 127

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    3672 of 2007.

G       From the Judgment and Order dated 28.03.2005 of the
    High Court at Calcutta in S.A. No. 244 of 1987.

        S.B. Sanyal, R.K. Gupta, S.K. Gupta, M.K. Singh, B.P.
    Gupta, Shekhar Kumar for the Appellants.

H       Bijan Kumar Ghosh for the Respondent.
 tllSWANATH GHOSH (DEAD) BY LRS. v. GOBIN DA GHOSH 1103
          ALIAS GOBINDHA CHANDRA GHOSH

    The Judgment of the Court was delivered by                       A

     M.Y. EQBAL, J. 1. This appeal is directed against the
judgment and order dated 28.3.2005 passed by Calcutta High
Court in S.A. No.244of1987 whereby the judgment and decree
passed by the Trial Court as also the Appellate Court has been
                                                                     8
reversed and the suit was dismissed holding that the suit itself
was barred by limitation and lack of relevant pleading and
evidence disentitle the plaintiff-appellant to get a decree for
specific performance and for re-conveyance of the suit property.

     2. The facts of the case lie in a narrow compass.               C

     3. The plaintiffs-appellants in need 9f money took a loan
of Rs.3,000/- from the defendants-respondents and executed
a registered Kabala dated 24.11.1964. On the same day, a
registered Ekrarnama was also executed between the parties           0
stipulating the terms of re-conveyance on payment of the loan
amount by the appellants to the respondents.

     4. In the year 1970, the appellants filed a suit being Title
Suit No.215 of 1970 against the defendants before the Sub-
Divisional Munsif, Bangaon under Section 36 of the Bengal            E
Money Lenders Act, 1940. The said suit was resisted by the
defendants-respondents, stating therein that the aforesaid sale
deed executed by the plaintiffs was out an out-sale of the suit
property and possession was also delivered to the
respondents. The learned Munsif in terms of the judgment dated       F
20.12.1973 dismissed the suit. The plaintiffs then filed appeal
against the said judgment being Title Appeal No.350 of 1974.
The learned Additional District Judge, upon hearing the parties,
allowed the appeal and remanded the matter back to the Trial
Court with a direction to the Trial Court to allow the plaintiffs-   G
appellants an opportunity for amending the plaint and to add
prayer for specific performance of the contract and to pass
fresh judgment in accordance with law.

     5. Consequent upon the remand, the appellants amended
                                                                     H
    1104        SUPREME COURT REPORTS                [2014] 3 S.C.R.


A the plaint by filing application on 1.3.1975 adding prayer for
  specific performance of contract to transfer the suit property in
  terms of the agreement for re-conveyance. The said application
  for amendment was allowed and the learned Munsif framed
  additional issues, and after considering the evidence on record
B finally decreed the suit'holding that the suit was not barred by
  limitation. The court of Munsif held that the order for amendment
  related back to the date of institution of the suit and, therefore,
  the suit cannot be held to be barred by limitation. Aggrieved
  by the said judgment and decree, the defendants-respondents
c filed appeal being Title Appeal No.836 of 1983, which was
  dismissed on merit by the First Appellate Court. The
  respondents then filed Second Appeal, which was finally
  allowed in favour of the defendant-respondents and the
  judgment and decree passed by both the courts of Munsif and
  the Additional District Judge have been set aside. Hence, this
0
  appeal by special leave by the plaintiff-appellants.

       6. From the impugned judgment passed by the High Court
  it appears that the High Court formulated the following
  substantial questions of law and considered the same while
E allowing the appeal:

           "1)   Whether the Learned Courts below erred in law in
                 granting a decree for specific performance of
                 contract notwithstanding the fact that the necessary
                 averment as required by the provisions of the
F
                 Specific Relief Act were absent in the plaint.

           2)    Whether from the materials on records both the
                 learned Courts below ought to have held that the
                 plaintiffs had failed to plead and prove that they
G                were ready and willing to perform their part of
                 contract.

           3)     Whether the prayer for specific performance of
                  contract in the instant case is barred by limitation.
H
 BISWANATH GHOSH (DEAD) BY LRS.· v. GOBINDA GHOSH 1105
   ALIAS GOBINDHA CHANDRA GHOSH [M.Y. EQBAL, J.)

      4)    Whether the amendment as prayed for was rightly           A
            allowed and whether on the basis of the said
            amendment both the Courts below rightly decreed
            the suit."

      7. Before we proceed with the matter, it would be proper        8
to first go through the judgment of remand passed by the
Additional District Judge in first round of appeal being Title
Appeal No.350 of 1974, which was preferred against the
judgment passed by Munsif dismissing the suit of the plaintiffs-
appellants. From perusal of the judgment, it reveals that both        C
parties made their submission on the interpretation of two
documents, namely Kobala and the agreement of re-
conveyance. It also reveals that there were exchange of letters
(Exhibit 'B' and '81') whereupon the defendants-respondents
in the reply letter expressed their willingness to reconvey the
land but after harvest of aushpaddy on the suit land. Thereafter,     D
the plaintiff issued another letter dated 6.6.1968 agreeing to
 have conveyance of the suit land after harvest on payment of
 Rs.3000/- (Exhibit '82'). The defendant also replied to such
 letter (Exhibit '83') agreeing to reconvey the suit land after the
 harvest.                                                             E

      8. On the basis of these exchanges of letters and in the
facts and circumstances of the case, the Appellate Court held
that the plaintiff-appellants should be given opportunity to have
specific performance of contract in terms of the agreement. The       F
relevant portion of the finding and the order passed in the
appeal is extracted hereinbelow:

     "The learned advocate for the plaintiffs-appellants submits
     in view of the facts and circumstances the plaintiffs should
     be given an opportunity to have a specific performance of        G
     contract in terms of an agreement (ext.1). Under the law
     time is not essence of contract in case of sale of land. The
     parties mutually extended the time as the letters passed
     between them indicate. The evidence on record does not
     speak for the fact that the plaintiffs are keen to treat the     H
    1106   SUPREME COURT REPORTS                     (2014] 3 S.C.R.


A      transaction as a loan under the provision of Bengal Money
        Lenders Act. They are, on the other hand, keen to fall back
       upon the agreement of repurchase Ext.1. But the suit has
       been framed as one under section 36 of Bengal Money
       Lenders Act and as such no relief can be given to the
B      plaintiffs by way of specific performance. So far the end
       of justice the plaintiff should be given an opportunity to
       include a prayer for specific performance of contract by
       effecting amendment of the plaint appropriately and on
       payment of the requisite court fees and on compliance with
c      the formalities of a suit for specific performance.

             The learned advocate for the respondents has
       objected to giving of such opportunity to the plaintiffs as
       the proposed amendment will alter the nature of the suit. I
       do not think so.
D
       The main prayer of the plaintiffs is for restoration of the land
       in terms of the agreement either by reopening the
       transaction or by specific performance of contract.

            Considering all these, I for the ends of justice remand
E
      the suit for giving the plaintiffs an opportunity to amend the
      plaint in the light of observation made above in my
      judgment. The result the appeal succeeds. Memo of
      appeal is correctly stamped. Hence,
F                            ORDERED

      that the appeal be allowed on contest without costs. The
      judgment and decree of the learned Munsif are hereby set
      aside. The suit be remanded to the trial court for allowing
G     the plaintiff an opportunity to amend the plaint for making
      a prayer for specific performance of contract. The plaintiff
      shall pay a cost of Rs.30/- {Rupees Thirty) to the
      defendants for making such amendment. The defendants
      shall get opportunity to file additional written statement. The
      amendment shall be effected within two months from the
H
 BISWANATH GHOSH (DEAq) BY LRS. v. GOBIN DA GHOSH 1107
   ALIAS GOBINDHA CHANDRA GHOSH [M.Y. EQBAL, J.)

    receipt of record of this suit. In default, the. plaintiffs' suit   A
    shall stands dismissed.

    After the amendment the learned Munsif shall decide the
    suit on taking further evidence if the parties like to adduce
    and on the basis of evidence on record in terms of the
                                                                        B
    added prayer of the plaintiffs."

     9. From the finding recorded by the Additional District
Judge in the aforementioned judgment of remand, it is evidently
clear that a direction was issued to the learned Munsif to allow
the plaintiff to amend the plaint on payment of cost of Rs.30/-.        C
The Appellate Court also gave opportunity to the defendants-
respondents for filing additional written statement.

     10. In terms of the aforesaid judgment, the plaint was
amended and a relief for a decree of specific performance was           0
added in the said suit. The learned Munsif, after framing
additional issue and considering the facts and evidence on
record, decreed the suit for specific performance holding that
the suit was not barred by limitation. While passing the decree,
the plaintiff-appellant was directed to deposit consideration
                                                                        E
amount of Rs.3,000/-.

     11. Learned Munsif held that after the amendment was
allowed and relief for decree of specific performance was
added, it should be deemed that the suit for specific
performance was filed on the date of institution of the suit i.e. · F
7.5.1970.

     12. Aggrieved by the said judgment and decree passed :
by the Munsif, the defendants-respondents preferred an appeal
being Title Appeal No.836 of 1983. The said appeal was heard G
and finally dismissed by the First Appellate Court holding that
the suit was well within the period of limitation and it was not
barred by limitation inasmuch as the amendment of the plaint
related back to the date of the presentation of the plaint.
                                                                        H
    1108     SUPREME COURT REPORTS                  [2014] 3 S.C.R.


A        13. The defendants-respondents then assailed the
    judgment by filing second appeal being S.A. No.244 of 1987.
    The High Court, as stated above, reversed the finding given by
    the Trial Court and the Appellate Court and set aside the same
    by allowing the appeal.
B
       14. From perusal of the judgment passed by the High
  Court, it reveals that the High Court, after referring Section 16
  and Section 20 of the Specific Relief Act and relying on the
  decision of the Supreme Court, came to the conclusion that
  since the readiness and willingness have not been averred and
C proved, both the Trial Court and First Appellate Court
  committed error in decreeing the suit for specific performance.
  The High Court further observed that by converting a suit under
  Section 36 of the Bengal Money lenders Act into a suit for
  specific performance, basically the nature and character of the
D suit was changed and such amendments have been wrongly
  allowed in favour of the plaintiffs-appellants.

       15. Mr. S.B. Sanyal, learned senior counsel appearing for
  the appellant, vehemently contended that the impugned
E judgment of the High Court is vitiated in law for not following
  the mandatory requirements of Section 100 of the Code of Civil
  Procedure (in short "Code"). As a matter of fact, the High Court
  has adopted wrong procedure in dealing with the second
  appeal.
F      16. Mr. Sanyal further contended that the High Court while
  entertaining the appeal for admission has to formulate
  substantial question of law involved in the said appeal for
  consideration and only after giving notice to the respondents
  an opportunity of hearing on those substantial questions of law,
G shall finally decide the appeal. In this connection, learned senior
  counsel relied upon the decision of this Court in the cases of
  Sasikumar & Ors vs. Kunnath Cheflappan Nair & Ors., (2005)
  12 SCC 588 and Gurdev Kaur & Ors. vs. Kaki & Ors., (2007)
  1 SCC 546. We find force in the submission of Mr. Sanyal.
H
  BISWANATH GHOSH (DEAD) BY LRS. v. GOBINDA GHOSH 1109
    ALIAS GOBINDHA CHANDRA GHOSH [M.Y EQBAL, J.]

     17. Section 100 of the Code lays down the provision with         A·
regard to second appeal which reads as under:-

     "100. Second appeal:- (1)$ave 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   B
     from every decree 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.                                          C

     (3) In an appeal under this section, the memorandum of
     appeal shall precisely state the substantial question of law
     involved in the appeal.
                                                                      D
     (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       E
     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,          F
     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."

      18. From bare reading of the aforesaid provision it is
manifestly clear that an appeal shall lie to the High Court from      G
an appellate decree only if the High Court is satisfied that the
case involves a substantial question of law. It further mandates
that the memorandum of appeal precisely states the substantial
question of law involved in the appeal. If such an appeal is filed,
the High Court while admitting or entertaining the appeal must        H
    1110    SUPREME COURT REPORTS                 [2014] 3 S.C.R.


A record its satisfaction and formulate the substantial question of
  law involved in the appeal. The appeal shall then be heard on
  the questions so formulated and the respondent shall be
  allowed to argue only on those substantial questions of law.
  However, proviso to this section empowers the court to hear
B on any substantial question of law not formulated after recording
  reasons.

        19. Order XLI, Rule (3) of the Code is also worth to be
    quoted hereinbelow:-

C       "3.Rejection or amendment of memorandum:-(1)
        Where the memorandum of appeal is not drawn up in the
        manner hereinbefore prescribed, it may be rejected, or be
        returned to the appellant for the purpose of being amended
        within a time to be fixed by the Court or be amended then
D       and there.

        (2) Where the Court rejects any memorandum, it shall
        record the reasons for such rejection.

        (3) Where a memorandum of appeal is amended, the
E       Judge, or such officer as he appoints in this behalf, shall
        sign or initial the amendment."

        20. It is, therefore, clear that if a memorandum of appeal
  a'rising out from an appellate decree is not drawn up in the
F manner provided in the Code, the Court may reject the
  memorandum of appeal or return the same for the purposes
  of being amended within the time fixed by the Court. .

      21. In the instant case what the High Court has done is
  evident from its order dated 13.1.1987. The order reads as
G under:-

        "This appeal will be heard on all the grounds and issue a
        Rule and stay as prayed for"

H       22. The aforesaid order shows that the High Court while
 BISWANATH GHOSH (DEAD) BY LRS. v. GOBINDA GHOSH 1111
   ALIAS GOBINDHA CHANDRA GHOSH [MY EQBAL, J ]

admitting the appeal has not formulated any substantial question   A
of law and it was only after the arguments were concluded
some questions of law were formulated and the appeal was
decided by passing the impugned judgment.

     23. The law is well settled by catena of decisions of this
                                                                   B
Court that jurisdiction of the High Court to entertain a second
appeal is confined only to such appeals which involves
substantial question of law. Section 100 of the Code casts a
mandate on the High Court to first formulate substantial
question of law at the time of admission of the appeal. In other   C
words, a duty is cast on the High Court to formulate substantial
question of law before hearing the appeal. Since the same has
not been done, the impugned judgment is vitiated in law.

     24. On the question of readiness and willingness, the High
Court after relying upon some decisions of this Court allowed      D
the appeal and set aside the judgment and decree of the Trial
Court and the First Appellate Court. The only finding recorded
by the High Court is extracted hereinbelow:-

           "In my view, both the Courts below totally neglected    E
    and failed to consider the point of readiness and
    willingness which must be continuous and both the Courts
    below also failed to consider that this readiness and
    willingness have not been averred and/or not been proved.
    The Learned Appellate Court below without scanning the
    judgment and decree passed by the Learned Trial Judge
                                                                   F
    wrongly dittoed the judgment and decree passed by the
    Learned Trial Judge and failed to perform its statutory
    obligations and/ or duties.

          In view of the discussions made above and in view        G
    of the decisions of the Hon'ble Apex Court referred to
    above, both the judgments and decrees passed by the
    Learned Trial Judge as well as the Learned Appellate
    Court are set aside.
                                                                   H
    1112    SUPREME COURT REPORTS                   [2014] 3 S.C.R.


A             The suit is therefore, dismissed.

              Let a decree be drawn up accordingly.

              In the substantially of the facts and circumstances the
        parties are to bear their respective costs.
B
             Let the lower Court records be sent down to the
        Courts below forthwith.

              Urgent Xerox certified copy, if applied for, will be
        given to the parties as expeditiously as possible."
c
         25. In our considered opinion, the High Court has
    committed error of law in setting aside the judgment and decree
    of the Trial Court and the First Appellate Court on the basis of
    aforesaid finding.
D
       26. It is well settled proposition of law that in a suit for
  specific performance the plaintiff must be able to show that he
  is ready and willing to carry out those obligations which are in
  fact part of the consideration for the undertaking of the
E defendant. For the compliance of Section 16(c) of the Act it is
  not necessary for the plaintiff to aver in the same words used
  in the section i.e. ready and willing to perform the contract.
  Absence of the specific words in the plaint would not result in
  dismissal of the suit if sufficient fact and evidence are brought
F on record to satisfy the court the readiness and willingness to
  perform his part of the contract. In the case of Kedar Lal Seal
  & Anr. vs. Hari Lal Seal, AIR (39) 1952 SC 47, this Court has
  held that the Court would be slow to throw out the claim on mere
  technicality of the pleading. The Court observed:

G       "51. I would be slow to throw out a claim on a mere
        technicality of pleading when the substance of the thing is
        there and no prejudice is caused to the other side,
        however clumsily or inartistically the plaint may be worded.
        In any event, it is always open to a court to give a plaintiff
H       such general or other relief as it deems just to the same
 BISWANATH GHOSH (DEAD) BY LRS. v. GOBIN DA GHOSH 1113
   ALIAS GOBINDHA CHANDRA GHOSH [M.Y. EQBAL, J]

    extent as if it had been asked for, provided that occasions      A
    no prejudice to the other side beyond what can be
    compensated for in costs."

     27. In the case of Syed Dastagir vs. T.R. Gopalakrishna
Setty, (1999) 6 SCC 337, this Court dealing with a similar issue     B
observed:

    "9. So the whole gamut· of the issue raised is, how to
    construe a plea specially with reference to Section 16(c)
    and what are the obligations which the plaintiff has to
    comply with in reference to his plea and whether the plea        C
    of the plaintiff could not be construed to conform to the
    requirement of the aforesaid section, or does this section
    require specific words to be pleaded that he has
    performed or has always been ready and is willing to
    perform his part of the contract. In construing a plea in any    D
    pleading, 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           E
    through only by reading the whole pleading, depending on
    the person drafting a 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
    true spirit behind a plea it should be read as a whole. This     F
    does not distract one from performing his 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 that has to be pleaded maybe in any              G
    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 or word. Unless
    a statute specifically requires a plea to be in any particular
    form, it can be in any form. No specific phraseology or          H
    1114    SUPREME COURT REPORTS                      [2014] 3 S.C.R.


A       language is required to take such a plea. The language in
        Section 16(c) does not require any specific phraseology
        but only that the plaintiff must aver that he has performed
        or has always been and is willing to perform his part of the
        contract. So the compliance of "readiness and willingness"
B       has to be in spirit and substance and not in letter and form.
        So 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."
c        28. In the case of Mst. Sugani vs .. Ramesh war Das and
    Anr., AIR 2006 SC 2172, this Court observed that

        "17. It is not within the domain of the High Court to
        investigate the grounds on which the findings were arrived
D       at, by the last court of fact. It is true that the lower appellate
        court should not ordinarily reject witness accepted by the
        trial court in respect of credibility but even where it has
        rejected the witnesses accepted by the trial court, the
        same is no ground for interference in second appeal,
E       when it is found that the appellate court has given
        satisfactory reasons for doing so. In a case where from a
        given set of circumstances two inferences are possible.
        One drawn by the lower appellate court is binding on the
        High Court in se~ond appeal. Adopting any other approach
F       is not permissitile, The High Court cannot substitute its
        opinion for the opinion of the first appellate court unless it
        is found that the conclusions drawn by the lower appellate
        court were erroneous being contrary to the mandatory
        provisions of law applicable or its settled position on the
        basis of pronouncements made by the Apex Court, or was
G
        based upon inadmissible evidence or arrived at without
        evidence.

        18. If the question of law termed as a substantial question
        stands already decided by a larger Bench of the High
H       Court concerned or by the Privy Council or by the Federal
 BISWANATH GHOSH (DEAD) BY LRS. v. GOBINDA GHOSH              1115
   ALIAS GOBINDHA CHANDRA GHOSH [M.Y EQBAL, J.]

    Court or by the Supreme Court, its merely wrong                    A
    application on the facts of the case would not be termed
    to be a substantial question of law. Where a point of law
    has not been pleaded or is found to be arising between
    the parties in the absence of any factual format, a litigant
    should not be allowed to raise that question as a                  B
    substantial question of law in second appeal. The mere
    appreciation of the facts, the documentary evidence or the
    meaning of entries and the contents of the document
    cannot be held to be raising a substantial question of law.
    But where it is found that the first appellate court has           c
    assumed jurisdiction which did not vest in it, the same can
    be adjudicated in the second appeal, treating it as a
    substantial question of law. Where the first appellate court
    is shown to have exercised its discretion in a judicial
    manner, it cannot be termed to be an error either of law
                                                                       0
    or of procedure requiring interference in second appeal.
    This Court in Reserve Bank of India vs. Ramkrishna
    Govind Morey, AIR 1976 SC 830, held that whether the
    trial court should not have exercised its jurisdiction
    differently is not a question of law justifying interference."
                                                                       E
    29. In the case of Ardeshir Mama vs. Flora Sassoon, 55
IA (PC) 360, their Lordships of the Judicial Committee
observed that

    "Where the injured party sued at law for a breach, going,          F
    as in the present case, to the root of the contract, he
    thereby elected to treat the contract as at an end and
    himself as discharged from his obligations. No further
    performance by him was either contemplated or had to be
    tendered. In a suit for specific performance, on the other         G
    hand, he treated and was required by the Court to treat
    the contract as still subsisting. He had in that suit to allege,
    and if the fact was traversed, he was required to prove a
    continuous readiness and willingness, from the date of the
    contract to the time of the hearing, to perform the contract       H
    1116    SUPREME COURT REPORTS                  [2014] 3 S.C.R.


A       on his part. Failure to make good that averment brought
        with it the inevitable dismissal of his suit."

         30. Following the aforesaid principle, the Pakistan
    Supreme Court in the case of Maksud Ali & Ors. vs. Eskandar
    Ali, 16 DLR (1964) 138, observed as under:
8
        "25. So far as the question of making any express
        averment in the pleading of such readiness and
        willingness is concerned, we are of the view that although
        there can be doubt that this is the invariable practice of
C       pleading, and if we may say so, a desirable practice, de-
        signed to give a clear and express notice to the opponent
        of the case sought to be made out, it cannot be said that
        this is a rule of law which would render the structure of the
        suit itself defective or that without it a proper cause of
D       action would not appear on the plaint. We are, therefore,
        unable to accept the contention of the learned counsel that
        the present suit was bound to fail in the absence of such
        an averment."

E       31. In the case of Cort and Gee vs. The Ambergate,
    Nottingham and Boston and Eastern Junction Railway
    Company, (1851) 17 Queen's Bench Reports 127, the Court
    observed that

        "In common sense the meaning of such an averment of
F       readiness and willingness must be that the non-completion
        of the contract was not the fault of the plaintiffs, and that
        they were disposed and able to complete it if it had not
        been renounced by the defendants. What more can
        reasonably be required by the parties for whom the goods
G       are to be manufactured? If, having accepted a part, they
        are unable to pay for the residue, and have resolved not
        to accept them, no benefit can accrue to them from a
        useless waste of materials and labour, which might
        possibly enhance the amount of damages to be awarded
H       against them. "
 BISWANATH GHOSH (DEAD) BY LRS. v. GOBINDA GHOSH 1117
   ALIAS GOBINDHA CHANDRA GHOSH [MY EQBAL, J]

     32. In sum and substance, in our considered opinion, the         A
readiness, and willingness of person seeking performance
means that the person claiming performance has kept the
contract subsisting with preparedness to fulfill his obligation and
accept the performance when the time for performance arrive.
                                                                      B
     33. In the background of the principles discussed
hereinbefore, we shall now consider the conduct of the plaintiffs-
appellants and the act done by them in performance of their
part of obligations. These may be summarized as under:

     i) Admittedly on 1.12.1964, two documents were executed          C
     viz. the sale deed in favour of the defendants on payment
     of Rs.3,000/-.

     ii) An agreement of re-conveyance was also executed on
     the same day whereby the defendants agreed to return             o
     back the property within the stipulated time;

     iii) Before the expiry of the time stipulated in the d.eed of
     re-conveyance, the plaintiffs send a notice through a lawyer
     informing the defendants that as per the terms of the
     agreement of re-conveyance the plaintiffs tendered the           E
     amount of Rs.3,000/- and requested them to execute the
     sale deed. The defendants deferred the date and time on
     one pretext or another. In the same notice, the plaintiffs
     reminded the defendants to execute the sale deed after
     receiving the aforesaid amount.                                  F

    iv) The defendants-respondents on 29.4.1968 sent reply
    to the plaintiffs' notice stating that that they are ready to
    execute and register the sale deed in favour of the
    plaintiffs, but because of the paddy grown on the land it         G .
    could be done after some time. The reply dated 29.4.1968
    is reproduced hereinbelow:



                                                                      H
    1118    SUPREME COURT REPORTS                [2014] 3 S.C R


A                               "NOTICE

       To

       1. Sree Biswanath Ghosh

B      2. Sri Guru Pada Ghosh

       3. Tarak Dasi Ghosh of Village Narikela, P.O. Gaighata

             Under instructions and advice of my clients Sri
       Narendra Nath Ghosh, and Sri Harendra Nath Ghosh and
c      in reply of the said notice dated 22.4.68. I am to intimate
       you that the averments and contents of the said notice
       under reply regarding offer of Rs. 3000/- by you and to
       requesting them that after harvesting of the crops after the
       expiry of moth of Pous in respect of the land in question
D      and to execute and register the said sale deed are
       altogether false.

              That the land in question under the said notice my
       clients has shown Aush Paddy on the 4th day of Baisak
E      within the knowledge of you and without any objection and
       the said paddy seeds have grown to some extent my
       clients are ready to execute and register the sale deed in
       favour of you at our own cost after acknowledged receipt
       of the said amount of Rs. 3000/- from my clients within
       ensuring month of Bhadra after harvesting the said paddy
F
       dated 29.4.68.

                                        Sd/- Rabindra Nath Dutta
                                                       Advocate
                                                        29.4.68"
G
       v) The plaintiffs again sent a notice on 6.6.1968 referring
       the reply dated 29.4.1968 and requesting the defendants
       to execute the sale deed after harvesting the paddy. The
       said letter is also extracted hereinbelow:
H
BISWANATH GHOSH (DEAD) BY LRS. v. GOBINDA GHOSH 1119
  ALIAS GOBINDHA CHANDRA GHOSH [MY EQBAL. J]

         "From:                                                     A
         NirendraNath Basu, Advocate, Bongaon,
         P.O. Dt. 24 Parganas

         To,

         1 .Sri Narendra Nath Ghosh) Sons of Late Hazari            B
         Lai Ghosh

         2. Sri Harendra Nath Ghosh)

         Residents of Village Narikela, P.O. Gaighata, Dt. 24       C
         Parganas, Dated at Bongaon on the 6th day of June,
         1968.

  Sir,

  In pursuance of the letter dated 29/4/1968 sent on behalf         D
  of your Advocate Rabindra Nath Dutta under instruction of
  my clients Sri Biswanath Ghosh, Sri Gurupada Ghosh, Sri
  Tarak Basi Ghosh. You are informed that after harvest the
  'Aush Paddy' within the month of Bhadra and within the
  said month acknowledged receipt a sum of Rs. 3000/- in            E
  cash from my client and execute and register a sale deed
  in favour of my client and deliver vacant possession in
  favour of my clients otherwise you will be liable for all costs
  and damages dated 6.6.68.

                                    Sd/- Narendra Nath Basu         F
                                         Advocate, Bongaon
                                               Dated 6.6.68

  Schedule
         P.S. Gaighata, Mouza- Narikela                             G
  Settlement Plot No. 189 of .46 decimals.
  Settlement Plot No. 566 of .42 decimals out of .84 dee.
  Settlement Plot No. 416 of .14 decimals
  Settlement 413 of. 15 decimals.
                                                                    H
    1120      SUPREME COURT REPORTS                [2014] 3 S.C R.


A                 Total 1.17 acre of land. Sd/-

           vi) In spite of assurance, when the defendants failed to
           execute the sale deed, the plaintiffs filed the suit on
           7.5.1970 before the Munsif, Bongaon stating therein that
           the plaintiffs have every right to reconvey and to take
B
           possession of the suit land. Although the suit was
           dismissed, but in appeal the First Appellate Court while
           dismissing the appeal by Judgment dated 16.12.1985
           mentioned in the order that the plaintiffs have deposited
           the money as per directions of learned Munsif before the
c          date fixed in the judgment passed for specific
           performance.

       34. From the aforementioned sequence of facts and
  events, it can be safely inferred that the plaintiffs-appellants
D were always ready and willing to discharge their obligation and
  perform their part of the agreement. In our considered opinion,
  the undisputed facts and events referred to hereinabove shall
  amount to sufficient compliance of the requirements of Section
  16(c) of the Specific Relief Act.
E
         35. Taking into consideration the entire facts and
    circumstances of the case and the law discussed hereinabove,
    in our considered opinion the impugned judgment passed by
    the High Court cannot be sustained in law.

F       36. For the aforesaid reasons, the appeal is allowed, the
  impugned judgment passed by the High Court is set aside and
  the judgment and decree of the First Appellate Court confirming
  the judgment and decree passed by the Munsif are restored.
  However, in the facts of the case, there shall be no order as to
G costs.
    D.G.                                           Appeal allowed.