Holding

The Supreme Court held that the High Court erred in interfering with the factual findings; Section 16(c) imposes a personal bar requiring proof of readiness and willingness, and the appeal is allowed.

Summary

The plaintiff, H.P. Pyarejan, entered into a sale agreement with five co‑owners, advancing a loan on condition that all would execute the deed. Only four signed, and the plaintiff sued for specific performance including the fifth defendant. The trial court and first appellate court dismissed the suit, finding no evidence that the plaintiff was ready and willing to perform his part (i.e., pay the consideration). The Karnataka High Court, on a second appeal, held that the plaintiff had pleaded readiness but did not examine the factual findings, and allowed the appeal. The Supreme Court held that Section 16(c) of the Specific Relief Act, 1963, requires the plaintiff not only to plead but also to prove readiness and willingness to perform, and that the High Court exceeded its jurisdiction by re‑appreciating facts, which is barred under Section 100 of the CPC. Consequently, the High Court order was set aside and the appeal was allowed.

Issues considered

Whether the plaintiff must aver and prove readiness and willingness to perform his part of the contract under Section 16(c) of the Specific Relief Act, 1963.
Whether the High Court had jurisdiction to interfere with the factual findings of the lower courts under Section 100 of the Code of Civil Procedure, 1908.

Legislation cited

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

Subjects

specific performanceSection 16(c)readiness and willingnessjurisdictionappellate reviewcontract lawCivil Procedure

Judgment

A H.P. PYAREJAN
v.
DASAPPA (DEAD) BY LRS. AND ORS.

FEBRUARY 6, 2006

B [ARIJIT PASA VAT AND TARUN CHATTERJEE, JJ.]

Specific ReliefAct, 1963-Section /6(c)-Plaintijfis entitled to the benefit
of specific performance of contract, if he avers and proves that he had
C performed or had always been ready and willing to perform his part of the
contract.

Code of Civil Procedure, 1908-Section JOO-Second appeal-Finding
of fact-Interference with--Not warranted, if it involves re-appreciation of
evidence-Jurisdiction of High Court to interfere, is confined to hearing on
D substantial question of law.

Plaintiff-Respondent had filed a suit for specific performance of
contract. Trial Court and First Appellate Court dismissed the suit and the
first appeal, on the ground that there was no evidence by plaintiff to show
that he was ready and willing to perform his part of the contract. High
E Court allowed the second appeal. Hence the present appeal.

Allowing the appeal, the Court

HELD: I. The basic principle behind Section 16(c) read with
Explanation (ii) of Specific Relief Act, 1963 is that any person seeking
F benefit of the specific performance of contract must manifest that his
conduct has been blemishless throughout, entitling him to the specific
relief. The provision imposes a personal bar. The Court is to grant relief
on the basis of the conduct of the person seeking relief. Section 16(c)
mandates the plaintiff to aver in the plaint and establish as the fact by
evidence aliunde that he has always been ready and willing to perform
G his part of the contra~t. If the pleadings manifest that the conduct of the
plaintiff entitles him to get the relief he should not be denied the relief.
(127-G, H;128-AI

Prem Raj v. The D.l.F. Housing and Construction (Private) Ltd. and
Anr., AIR (1968) SC 1355; Syed Dastagir v. T.R. Gopalakrishna Setty, (1999(
H IW
;
t H.P. PYAREJAN v. DASAPPA(DEAD) BY LRS. [PASAYAT, J.] 121

6 sec 337; Motilal Jain v. Ramdasi Devi (Smt.) and Ors., 1200016 sec 420; A
Anig/ase Yohannan v. Ramlatha and Ors., 120051 7 SCC 534 and Ardeshir
H. Mama v. Flora Sassoon, AIR (1928) PC 208, referred to.

Cork v. Ambergate etc. and Railway Co., (1851) 117 ER 1229, referred
to.
B
2. High Court had n<it formulated question regarding the correctness
or otherwise of the findings of facts recorded by the trial Court nor
discussed as to in what way the requirement of Section 16(c) regarding
the proof of readiness and willingness of the plaintiff to perform his part
of the contract was fulfilled. Therefore, the judgment of the High Court C
suffers from serious infirmities. It suffers from the vice of exercise of
jurisdiction which did not vest in it under the law. Under Section 100 of
the Code of Civil Procedure, 1908 the jurisdiction of the High Court to
interfere with the judgments of the courts below is confined to hearing
on substantial questions of law. Interference with finding of fact by the
High Court is not warranted if it involves re-appreciation of evidence. D
1128-B-DI

Panchugopal Barua v. Umesh Chandra Goswami, 11997] 4 SCC 713
and Kshitish Chandra Purkait v. Santosh Kumar Purkait, (199715 SCC 438,
relied on.
E
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1501 of2000.

(From the Judgment and Order dated 30.7.1997 of the Karnataka High
Court in R.S.A. No. 244 of 1937.

S.K Kulkarni, M. Gireesh Kumar and Ms. Sangeeta Kumar for the F
Appellant

Shantha Kumar Mahale, Rajesh Mahale, S. Manjunath and P.
Narasimhan for the Respondents

The Judgment of the Court was delivered by G
ARIJIT PASA YAT, J. Challenge in this appeal is to the judgment
rendered by a learned Single Judge of the Karnataka High Court allowing the
second appeal filed by the plaintiff.

Factual background in a nutshell is as follows: H
122 SUPREME COURT REPORTS [2006 J 2 S.C.R.
\
\

A The case of the plaintiff was that he entered into an agreement of sale
on 22.8.1977. Though defendants I to 5 were to execute the agreement, at ~ •#
the time of agreement, the fifth defendant went out saying that he would
come and sign later, but did not sign it at all and only defendants I to 4
signed the agreement of sale. However, the plaintiff claimed that defendant-
B 5 must also join in execution of the sale deed and prayed for a decree for
specific performance.

In the written statement filed by the first defendant, it was contended
that all the defendants are tenants in common and co-owners. Defendants 2
to 4 were in need of money during 1977 and approached the plaintiff to
C advance loan. The plaintiff agreed to advance loan provided the defendants
execute an agreement of sale in his favour for the security of the loan borrowed
and expressed his intention that all the defendants should execute nominal
agreement of sale and then only he would pay the amount. Under the
circumstances the first defendant and defendants 2 to 4 who were in need of
money were forced to sign the document and believing the words of the
D plaintiff, executed a nominal agreement of sale. The fifth defendant who filed
a separate written statement, however, claimed that there is a collusion between
the plaintiff and defendants I to 4 and the suit was brought to harass him and
deprive him of his legal right and interest over the suit property. They also
contended that there is undue delay on the part of the plaintiff and the suit
E was instituted just to overcome the period of limitation which was about to
expire.

The Trial Court as well as the First Appellate Court held that there was
no evidence adduced by the plaintiff to show that he was ready and willing
to perform his part of the contract. It was also noticed that there was no
F specific pleading showing readiness and willingness of the plaintifftctperform
his part of the contract. Accordingly the suit and the first appeal were
dismissed. Plaintiff filed second appeal under Section 100 of the Code of
Civil Procedure, 1908 (in short the 'Code'). The High Court framed the
following questions for adjudication:

G (I) Whether the lower Courts were in error in holding that there is
no specific pleading showing the readiness and willingness of
the plaintiff to perform his part of the contract?
(2) Whether the lower appellate Court was in error in taking the
view that the contract of sale is indivisible and that defendants
H I to 4 cannot convey their even 4/5th share?"
r-- •.
-'
H.P. PY AREJAN v. DASAPPA(DEAD) BY LRS. (PASA YAT, J.) 123

... ~ • ..>"
The High Court held that there was specific pleading as regards the readiness A
and willingness of the plaintiff to perfonn his part of the contract. It, however,
did not record any finding so far as the second question is concerned. It
accordingly allowed the second appeal.

Learned counsel for the appellant has submitted that in order to satisfy
the requirement of Section 16(c) of the Specific Relief Act, 1963 (in short the B
'Act') the plaintiff not only requires to plead that he is ready and willing to
perfonn his part of the contract but also to prove that aspect. In the instant
case no proof was adduced. On the contrary, the findings of fact recorded by
the Trial Court and the First Appellate Court to the effect that the plaintiff
had failed to t'.Stablish that he was ready and willing to petfonn his part of
the contract have been set aside without even formulating a question of law,
c
which is impennissible. It was further submitted that the High Court has
placed reliance on some of the discussions made by the Trial Court and the
First Appellate Court completely ignoring the findings recorded.

Learned counsel for the respondents on the other hand submitted that D
the High Court has taken note of the factual position and on a proper analysis
of the judgments of the Trial Court and the First Appellate Court recorded
·,..
" a finding that requirement of Section 16(c) of the Act was fulfilled.

The Trial Court recorded the following findings:
E
"Therefore, the evidence of the plaintiff is an utter lie and he has
not offered any amount as alleged on 22.11.l 977.

Even conceding for a moment that the plaintiff offered to pay
Rs.I I ,000/- on 22.11.977 and the first defendant has agreed to execute
the sale deed only on 30.11.1977, the point is, whether the plaintiff F
again offered to pay the amount on 30.11.1977. Admittedly according
j
to P.W.2, the plaintiff has not offered to pay the defendants 2 to 5.
So far as defendants 2 to 5 are concerned, the plaintiff has not
performed his part of the contract by offering to pay the balance of
the amount to them. Secondly, there is no evidence to show whether
the plaintiff has offered to pay the said amount again on 30.11.1977. G
So far as the plaintiff himself is concerned, he has clearly admitted
., in his evidence that only once i.e. about 3 or 4 days prior to the
expiry of three months period from the date of agreement he has
' offered to pay to the defendants and thereafter he has never offered
the amount. This clearly shows that the plaintiff has never offered !he H
r'
I
124 SUPREME COURT REPORTS [2006] 2 S.C.R.

A amount on 30.11.1977 ."

These conclusions were affirmed by the First Appellate Court.

In order to appreciate the rival submissions Section 16(c) needs to be
quoted along with the Explanations. The same reads as follows:
B "16. Personal bars to relief

(a)

(b)

(c) who fails to aver and prove that he has performed or has always
c been ready and willing to perform the essential terms of the
contract which are to be performed by him, other than terms of
the performance of which has been prevented or waived by the
defendant.

Explanation- For the purpose of clause (c)-
D
(i) where a contract involves the payment of money, it is not essential
for the plaintiff to actually tender to the defendant or to deposit
in Court any money except when so directed by the Court;

(ii) the plaintiff must aver performance of, or readiness and
E willingness to perform, the contract accordingly to its true
construction."

In Ardeshir H. Mama v. Flora Sassoon, AIR (1928) PC 208, the Privy
Council observed that where the injured party sued at law for a breach, going
to the root of the contract, he thereby elected to treat the contract as at an end
F himself and as discharged from the obligations. No further performance by
him was either contemplated or had to be tendered. In a suit for specific
performance on the other 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
G willingness from the date of the contract to the time of the hearing, to perform
the contract on his part. Failure to make good that averment brings with it
and leads to the inevitable dismissal of the suit. The observations were cited
with approval in Prem Raj v. The D.L.F. Housing and Construction (Private)
Ltd. and Anr., AIR (1968) SC 1355.

H The requirements to be fulfilled for bringing in compliance of the
,
I
~

H.P. PY AREJAN v. DASAPPA(DEAD) BY LRS. [PASA YAT. J.] 125

"'),.., .. Section 16(c) of the Act have been delineated by this Court in several A
judgments. While examining the requirement of Section 16(c) this Court in
Syed Dastagir v. T.R. Gopalakrishna Se/tty, [1999) 6 SCC 337 noted as
follows:

"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 B
which the plaintiff has to comply with in reference to his plea and
whether the plea 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 pleading, courts must keep in mind that a
c
plea is not an expression of art and science but an expression through
words to place fact and law of one's case for a relief. Such an
expression may be pointed, precise, sometimes vague but still it could
be gathered what he wants to convey through only by reading the
whole pleading, depending on the person drafting a plea. In India D
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 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
E
be pleaded then that has to be pleaded may be in any form. The same
plea may be stated by different persons through different words; then
how could it be constricted to be only in any particular nomenclature
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 F
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" has to be in spirit and substance and not
in letter and form. So to insist for a mechanical production of the G
exact words of a statute is to insist for the form rather than the
.t essence. So the absence of form cannot dissolve an essence if already
.J
"' pleaded."

Again in Motilal Jain v. Ramdasi Devi (Sml.} and Ors., [2000) 6 SCC
H
126 SUPREME COURT REPORTS [2006] 2 S.C.R.

A 420 it was noted as follows:
"7. The other contention which found favour with the High Court, is
that plaint averments do not show that the plaintiff was ready and
willing to perform his part of the contract and at any rate there is no
evidence on record to prove it. Mr. Choudhary developed that
B contention placing reliance on the decision in Varghese case [1969)
2 SCC 539. Jn that case, the plaintiff pleaded an oral contract for sale
of the suit property. The defendant denied the alleged oral agreement
and pleaded a different agreement in regard to which the plaintiff
neither amended his plaint nor filed subsequent pleading and it was
in that context that this Court pointed out that the pleading in specific
c performance should conform to Forms 47 and 48 of the First Schedule
of the Code of Civil Procedure. That view was followed in Abdul
Khader case, [1989] 4 SCC 313.

8. However, a different note was struck by this Court in Chandiok
case, [ 1970] 3 SCC 140). In that case 'A' agreed to purchase from
D
'R' a leasehold plot. 'R' was not having lease of the land in his
favour from the Government nor was he in possession of the same.
'R', however, received earnest money pursuant to the agreement for
sale which provided that the balance of consideration would be paid
within a month at the time of the execution of the registered ' sale
E deed. Under the agreement 'R' was under obligation to obtain
permission and sanction from the Government before the transfer of
leasehold plot. 'R' did not take any steps to apply for the sanction
from the Government. 'A' filed the suit for specific performance of
the contract for sale. One of the contentions of 'R' was that 'A' was
not ready and willing to perform his part of the contract. This Court
F
observed that readiness and willingness could not be treated as a
straitjacket formula and that had to be determined from the entirety
of facts and circumstances relevant to the intention and conduct of
the party concerned. It was held that in the absence of any material
to show that 'A' at any stage was not ready and willing to perform
G his part of the contract or that he did not have the necessary funds for
payment when the sale deed would be executed after the sanction
was obtained, 'A' was entitled to a decree for specific performance
of contract.

9. That decision was relied upon by a three-Judge Bench of this
H Court in Syed Dastagir case, [19991 6 sec 337 wherein it was held
,
I
~-

H.P. PYAREJAN v. DASAPPA(DEAD) BY LRS. [PASA YAT, J.) 127
""_.> that in construing a plea in any pleading, courts must keep in mind A
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. It is
pointed out that in India most of the pleas are drafted by counsel and
hence they inevitably differ from one to the other; thus, to gather the
true spirit behind a plea it should be read as a whole and to test
whether the plaintiff has performed his obligations, one has to see the
B
pith and substance of the plea. It was observed :
r'
. "Unless a statute specifically requires a plea to be in any particular
form, it can be in any form. No specific phraseology or language
is required to take such a plea. The language in Section 16(c) of
the Specific Relief Act, 1963 does not· require any specific c
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'
has to be in spirit and substance and not in letter and form."

It is thus clear that an averment of readiness and willingness in the D
, plaint is not a mathematical formula which should only be in specific
t words. If the averments in the plaint as a whole do clearly indicate
the readiness and willingness of the plaintiff to fulfil his part of the
obligations under the contract which is the subject-matter of the suit,
the fact that they are differently worded will not militate against the E
readiness and willingness of the plaintiff in a suit for specific
performance of contract for sale."

Lord Campbell in Cork v. Ambergate etc. and Railway Co., (1851) 117
ER 1229 observed that in common sense the meaning of such an averment
of readiness and willingness must be that the non-completion of the contract F
was not the fault of the plaintiffs, and that they were disposed and able to
complete it had it not been renounced by the defendant.

The basic principle behind Section 16(c) read with Explanation (ii) is
that any person seeking benefit of the specific performance of contract must
manifest that his conduct has been blemishless throughout entitling him to G
the specific relief. The provision imposes a personal bar. The Court is to
.I -1., grant relief on the basis of the conduct of the person seeking relief. If the
pleadings manifest that the conduct of the plaintiff entitles him to get the
relief on perusal of the plaint he should not be denied the relief.
H
128 SUPREME COURT REPORTS [2006) 2 S.C.R.

A Section 16(c) of the Act mandates the plaintiff to aver in the plaint and
establish as the fact by evidence aliunde that he has always been ready and
willing to perform his part of the contract. The principles were recently
elaborated in Aniglase Yohannan v. Ramlatha and Ors., [2005] 7 SCC 534.

As rightly contended by learned counsel for the appellant no question
B was even formulated regarding the correctness or otherwise of the findings
of facts recorded by the Trial Court. The High Court has also not discussed
as to in what way the requirement of Section 16(c) regarding the proof of ,.
readiness and willingness of the plaintiff to perform his part of the contract
was fulfilled.
c In our opinion, therefore, the judgment of the High Court suffers from
serious infirmities. It suffers from the vice of exercise of jurisdiction which
did not vest in the High Court under the law. Under Section 100 of the Code
(as amended in 1976) the jurisdiction of the High Court to interfere with the
judgments of the courts below is confined to hearing on substantial questions
D of law. Interference with finding of fact by the High Court is not warranted
if it involves re-appreciation of evidence (see Panchugopal Barua v. Umesh
Chandra Goswami, [1997] 4 SCC 713 and Kshitish Chandra Purkait v.
Santosh Kumar Purkait, [1997] 5 SCC 438). High Court has not even discussed t
any evidence. No basic finding of fact recorded by the courts below has been
reversed much less any reason assigned for taking a view contrary to that
E taken by the Courts below. The finding on the question of readiness and
willingness to perform the contract which is a mixed question of law and fact
has been upset. It is statutorily provided by Section 16( I)(c) of the Act that
to succeed in a suit for specific performance of a contract the plaintiff shall
aver and prove that he has performed and has always been ready and willing
p to perform the essential terms of the contract which were to be performed by
him other than the terms the performance of which has been prevented or
waived by the defendant.

Looked at from any angle the judgment of the High Court is vulnerable
and needs to be set aside and it is so directed.
G
The appeal is allowed without any order as to costs.

D.G. Appeal allowed.