K. KARUPPURAJversusM. GANESAN

                          [2021] 8 S.C.R. 743                                 743


                          K. KARUPPURAJ                                       A
                                    v.
                             M. GANESAN
                (Civil Appeal Nos. 6014-6015 of 2021)
                          OCTOBER 04, 2021                                    B
             [M.R.SHAH AND A.S. BOPANNA, JJ.]
      Specific Performance – Suit for specific performance of
contract filed by plaintiff – Dismissed – First appeal, allowed by
High Court – Held: For the purpose of passing decree for specific
                                                                              C
performance, plaintiff has to prove both readiness and willingness–
Trial court held the issue of willingness against plaintiff by giving
cogent reasons, on appreciation of evidence and considering the
pleadings in the plaint, the same is justified – Plaintiff was not entitled
to decree of specific perfpormance – Impugned judgment set aside
– Decree passed by Trial court, restored – Code of Civil Procedure,           D
1908.
       Code of Civil Procedure, 1908 – s.96, Or.XLI, r.31; Or.VI,
r.17 – First appeal – Disposal of – Held: First appeals are to be
decided after following the procedure under CPC – Reliance upon
the affidavit without amending the plaint and the pleadings is wholly         E
impermissible under the law – In the present case, the High Court
disposed of the appeal preferred u/Or.XLI r/w s.96 in a most casual
and perfunctory manner.
      Allowing the appeals, the Court
      HELD:1.1 The High Court has disposed of the appeal                      F
preferred under Order XLI CPC read with Section 96 in a most
casual and perfunctory manner. Apart from the fact that the High
Court has not framed the points for determination as required
under Order XLI Rule 31 CPC, it appears that the High Court
has not exercised the powers vested in it as a First Appellate                G
Court. The High Court has neither reappreciated the entire
evidence on record nor has given any specific findings on the
issues which were even raised before the Trial Court. As per the
case of the original plaintiff- respondent, the defendant-appellant
was required to evict the tenants and hand over the physical and
                                                                              H
                                   743
744            SUPREME COURT REPORTS                         [2021] 8 S.C.R.


A     vacant possession at the time of execution of the sale deed on
      payment of full sale consideration. Even in the suit notice issued
      by the plaintiff, the plaintiff called upon the defendant to evict the
      tenants and thereafter execute the sale deed on payment of full
      consideration from the plaintiff. Even when the pleadings and
      the averments in the plaint are considered, it appears that the
B
      plaintiff was never willing to get the sale deed executed with
      tenants and/or as it is. It was the insistence on the part of the
      plaintiff to deliver the vacant possession after evicting the tenants.
      Therefore, on the basis of the pleadings in the plaint and on
      appreciation of evidence, the Trial Court held the issue of
C     willingness against the plaintiff. However, before the High Court,
      the plaintiff filed an affidavit stating that he is now ready and willing
      to get the sale deed executed with respect to the property with
      tenants and the High Court relying upon the affidavit in the first
      appeal considered that as now the plaintiff is ready and willing to
      purchase the property with tenants and get the sale deed executed
D
      with respect to the property in question with tenants, the High
      Court has allowed the appeal and decreed the suit for specific
      performance. The aforesaid procedure adopted by the High Court
      relying upon the affidavit in a First Appeal by which virtually
      without submitting any application for amendment of the plaint
E     under Order VI Rule 17 CPC, the High Court as a First Appellate
      Court has taken on record the affidavit and as such relied upon
      the same. Such a procedure is untenable and unknown to law.
      First appeals are to be decided after following the procedure to
      be followed under the CPC. The affidavit, which was filed by the
      plaintiff and which has been relied upon by the High Court is just
F
      contrary to the pleadings in the plaint. There were no pleadings
      in the plaint that he is ready and willing to purchase the property
      and get the sale deed executed of the property with tenants and
      the specific pleadings were to hand over the peaceful and vacant
      possession after getting the tenants evicted and to execute the
G     sale deed. The proper procedure would have been for the plaintiff
      to move a proper application for amendment of the plaint in
      exercise of the power under Order VI Rule 17 CPC, if at all it
      would have been permissible in a first appeal under Section 96
      read with Order XLI CPC. However, straightaway to rely upon
H
                K. KARUPPURAJ v. M. GANESAN                                 745


the affidavit without amending the plaint and the pleadings is              A
wholly impermissible under the law. Therefore, such a procedure
adopted by the High Court is disapproved. The learned Trial Court
held the issue of willingness against the plaintiff by giving cogent
reasons and appreciation of evidence and considering the
pleadings and averments in the plaint. The Trial Court was justified
                                                                            B
in holding the issue of willingness against the plaintiff. The plaintiff
was never ready and willing to purchase the property and/or get
the sale deed executed of the property with tenants. It was for
the first time before the High Court in the affidavit filed before
the High Court and subsequently when the Trial Court held the
issue of willingness against the plaintiff, the plaintiff came out          C
with a case that he is ready and willing to purchase the property
with tenants. For the purpose of passing the decree for specific
performance, the plaintiff has to prove both the readiness and
willingness. Therefore, once it is found on appreciation of evidence
that there was no willingness on the part of the plaintiff, the plaintiff
                                                                            D
is not entitled to the decree for specific performance. Therefore,
in the present case, the Trial Court was justified in refusing to
pass the decree for specific performance. [Paras 6, 8][752-B-C;
754-G-H; 755-A-H; 756-A-C]
      B.V. Nagesh and Anr. Vs. H.V. Sreenivasa Murthy (2010)
      13 SCC 530 : [2010] 11 SCR 784; H. Siddiqui (Dead)                    E
      by LRs. Vs. A. Ramalingam (2011) 4 SCC 240 : [2011]
      5 SCR 587; State Bank of India and Anr. Vs. Emmsons
      International Limited and Anr. (2011) 12 SCC 174 :
      [2011] 10 SCR 436; Madhukar and Ors. Vs. Sangram
      and Ors.,(2001) 4 SCC 756 : [2001] 3 SCR 138; H.K.N.                  F
      Swami Vs. Irshad Basith (Dead) by LRs., (2005) 10 SCC
      243; Jagannath Vs. Arulappa and Anr. (2005) 12 SCC
      303 – relied on.
      1.2 Not refunding the amount of part sale consideration with
18% interest as ordered by the Trial Court cannot be a ground               G
to confirm the impugned judgment and order passed by the High
Court. The plaintiff as such could have filed an execution petition
to execute the judgment/decree passed by the Trial Court.
The appellant-original defendant to refund the amount of
Rs.3,60,001/- with 18% interest from the date of the agreement
                                                                            H
746            SUPREME COURT REPORTS                          [2021] 8 S.C.R.


A     till the date of realization within a period of eight weeks from
      today. The impugned judgment and order passed by the High
      Court of judicature at Madras in Appeal Suit No. 94 of 2010 is
      quashed and set aside and the judgment and decree passed by
      the Trial Court stands restored. [Paras 10, 11][757-F-H]
B                             Case Law Reference
      [2010] 11 SCR 784                relied on              Para 3.6
      [2011] 5 SCR 587                 relied on              Para 3.6
      [2011] 10 SCR 436                relied on              Para 3.6
C     [2001] 3 SCR 138                 relied on              Para 6.2
            CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.6014-
      6015 of 2021
             From the Judgment and Order dated 27.11.2017 and 06.01.2020
      of the High Court of Judicature at Madras in Appeal Suit No.94 of 2010
D
      and Review Application No.71 of 2019 in Appeal Suit No.94 of 2010.
            Ratnakar Dash, Sr. Adv., S. Thananjayan, Ms. Promila, Ms. Aaina,
      Ms. Jaswanti, Advs. for the Appellant.
           Navaniti Prasad Singh, Sr. Adv., P. V. Yogeswaran, Ashish Kumar
E     Upadhyay, Y. Lokesh, Ms. V. Keerthana, Pankaj Agarwal, Ms. Indira
      Bhakar, Advs. for the Respondent.
            The Judgment of the Court was delivered by
            M. R. SHAH, J.

F           1. Feeling aggrieved and dissatisfied with the impugned judgment
      and order dated 27.11.2017 passed by the High Court of Judicature at
      Madras in Appeal Suit No. 94 of 2010 by which the High Court has
      allowed the said appeal by quashing and setting aside the judgment and
      decree passed by the learned Trial Court dismissing the suit for specific
      performance and consequently decreeing the suit, the original defendant
G     has preferred the present Civil Appeal No. 6014 of 2021.
            1.1 Feeling aggrieved and dissatisfied with the judgment and order
      dated 06.01.2020 rejecting the Review Application No. 71 of 2019 in
      Appeal Suit No. 94 of 2010, the defendant as review applicant has
      preferred the present Civil Appeal No. 6015 of 2021.
H
                   K. KARUPPURAJ v. M. GANESAN                                   747
                          [M. R. SHAH, J.]

      2. The facts leading to the present appeals in a nutshell are as           A
under:-
       2.1 An agreement for sale of the property situated in Kaspa
Coimbatore was entered into between the plaintiff and the defendant
wherein the defendant agreed to sell the same for a sale consideration
of Rs. 16.20 lakhs to the plaintiff. A part sale consideration of Rs.3,60,001/   B
- was paid at the time of execution of the agreement to sell. There were
certain conditions stipulated in the agreement to sell. One of the conditions
was that the defendant as original owner was required to evict the tenants
from the property in question and thereafter to execute the sale deed on
receipt of the full sale consideration. The plaintiff sent a legal notice to
the defendant asking to evict the tenants from the property in question          C
and to execute the sale deed on receipt of the balance sale consideration
vide notice dated 01.07.2006.
       2.2 That thereafter the plaintiff filed the present suit before the
learned Trial Court for specific performance of the contract. It was the
case on behalf of the plaintiff that he was ready and willing to perform         D
his part of the contract but the defendant did not evict the tenants and
come forward to execute the sale deed. Therefore, it was averred in
the plaint that the defendant has to evict the tenants and perform his part
of the contract and execute the sale deed. It was pleaded on behalf of
the plaintiff that he was ready with the cash in his savings account and,        E
therefore, he was always ready to perform his part of the contract. The
defendant contested the suit by filing the written statement. Readiness
and willingness on the part of the plaintiff and to perform the specific
part of the contract was specifically denied. It was submitted that vacant
possession was already known to the plaintiff as the tenants had been
vacated and inspite of such the plaintiff was not ready to pay the               F
remaining consideration. The learned Trial Court framed the following
issues:-
       “1.    Whether the plaintiff is entitled for specific performance?
       2.     Whether the plaintiff was ready and willing to purchase the        G
              property?
       3.     To what relief?”
       2.3 Both the sides led the evidence, documentary as well as oral.
On appreciation of evidence and considering the pleadings in the plaint,
the learned Trial Court held the issue of readiness on the part of the           H
748             SUPREME COURT REPORTS                            [2021] 8 S.C.R.


A     plaintiff in favour of the plaintiff, however, held that the plaintiff was not
      willing to get the sale deed executed as it is, and, therefore, held the
      issue of willingness against the plaintiff. The Trial Court also held that
      the defendant has failed to prove that tenants had vacated the suit property
      as claimed, however, the learned Trial Court held on willingness against
      the plaintiff by observing that the plaintiff has not shown the willingness
B
      to purchase the property with the tenants and there are no such pleadings
      in the plaint and that the plaintiff has not elected to purchase the property
      as its nature. Therefore, the Trial Court on appreciation of the evidence
      ultimately held that the plaintiff was not at all willing to purchase the
      property with the tenants. Accordingly, the learned Trial Court dismissed
C     the suit and refused to pass the decree for specific performance of the
      contract and directed the defendant to refund the advance amount of
      Rs.3,60,001/- with interest @ 18% p.a. from the date of agreement till
      the date of realization, to be paid within a period of two months. The
      learned Trial Court also directed that there shall be a charge over the
      property till such amount is realized by the plaintiff from the defendant.
D
             2.4 Feeling aggrieved and dissatisfied with the judgment and decree
      passed by the learned Trial Court dismissing the suit for specific
      performance, the plaintiff filed the appeal suit before the High Court. By
      the impugned judgment and order, relying upon the affidavit filed before
      the High Court in which for the first time the plaintiff stated that he is
E     ready and willing to purchase the property with the tenants, the High
      Court without even re-appreciating the entire evidence on record and
      even without framing the points for determination has allowed the appeal
      by the impugned judgment and order and has set aside the judgment and
      decree passed by the learned Trial Court, and consequently has decreed
F     the suit for specific performance of the contract.
            2.5 Feeling aggrieved and dissatisfied with the impugned judgment
      and order/decree passed by the High Court – First Appellate Court
      allowing the appeal and consequently decreeing the suit for specific
      performance of the contract, the original defendant has preferred the
G     present appeal being Civil Appeal No.6014 of 2021. After the impugned
      judgment and order/decree, the defendant filed the review application
      before the High Court, which has been dismissed, which is the subject
      matter of Civil Appeal No.6015 of 2021.
            3. Shri Ratnakar Dash, learned senior counsel appearing for the
H     appellant/defendant has vehemently submitted that in the facts and
                    K. KARUPPURAJ v. M. GANESAN                                    749
                           [M. R. SHAH, J.]

circumstances of the case, the High Court has materially erred in allowing         A
the appeal and decreeing the suit for specific performance of the contract.
       3.1 It is vehemently submitted by the learned senior counsel
appearing for the appellant that the impugned judgment and order passed
by the High Court as a First Appellate Court cannot be sustained. It is
submitted that as such the High Court has not exercised the appellate              B
jurisdiction vested in it, particularly, while exercising the jurisdiction under
Section 96 read with Order XLI Rule 31 of the Civil Procedure Code. It
is submitted that the High Court has not at all re-appreciated the evidence
on record and without even discussing the evidence on record and even
without raising the points for determination on the basis of the issues
                                                                                   C
which were framed by the learned Trial Court, the High Court has allowed
the appeal and has decreed the suit for specific performance, which
otherwise is not permissible.
       3.2 It is further submitted by learned senior counsel appearing on
behalf of the appellant that there is no re-appreciation of evidence on
                                                                                   D
the issue of willingness on the part of the plaintiff, which was dealt with
and considered by the learned Trial court in detail and the issue which
was held against the plaintiff.
       3.3 It is submitted that even the High Court has erred in passing
the impugned judgment and order relying upon the affidavit of the
                                                                                   E
respondent-plaintiff, which was filed before the High Court in which for
the first time the plaintiff came out with a case that he is ready and
willing to purchase the property with tenants. It is submitted that such a
course adopted by the High Court is wholly impermissible under the law.
       3.4 It is submitted that what was not pleaded by the plaintiff in the       F
plaint on willingness to purchase the property with tenants has now been
permitted by the High Court relying upon the affidavit filed before the
High Court for the first time. It is submitted that the affidavit filed by the
plaintiff before the High Court that he is ready and willing to purchase
the property with tenants is just contrary to the pleadings in the plaint
and even the findings recorded by the learned Trial Court.                         G

       3.5 It is further submitted by learned senior counsel appearing for
the appellant that as such the plaintiff never agreed to purchase the
property with tenants and as per the case of the plaintiff and so averred
in the plaint, it was pleaded that it was the responsibility of the defendant
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750             SUPREME COURT REPORTS                            [2021] 8 S.C.R.


A     to evict the tenants and hand over the peaceful vacant possession and
      execute the sale deed. It is submitted that, therefore, thereafter it was
      not open on the part of the plaintiff to submit that he is ready and willing
      to purchase the property with tenants and that too by an affidavit for the
      first time filed before the High Court.
B            3.6 It is submitted that without even permitting the plaintiff to
      amend the plaint, the course adopted by the High Court permitting to
      change his stand by way of an affidavit is unknown to law and the
      procedure to be followed under the provisions of the CPC. Making above
      submissions and relying upon the decisions of this Court in the case of
      B.V. Nagesh and Anr. Vs. H.V. Sreenivasa Murthy, (2010) 13 SCC
C
      530,H. Siddiqui (Dead) by LRs. Vs. A. Ramalingam (2011) 4 SCC
      240 and State Bank of India and Anr. Vs. Emmsons International
      Limited and Anr. (2011) 12 SCC 174, it is prayed to allow the present
      appeal and quash and set aside the impugned judgment and order passed
      by the High Court and consequently dismiss the suit.
D
             4. Present appeal is vehemently opposed by Mr. Navaniti Prasad
      Singh, learned senior counsel appearing on behalf of the respondent –
      original plaintiff.
              4.1 It is vehemently submitted by learned senior counsel appearing
E     on behalf of the respondent - plaintiff that as such as per the condition in
      the agreement to sell, it was the responsibility of the defendant to evict
      the tenants and thereafter to hand over the peaceful and vacant possession
      and execute the sale deed on receipt of the balance sale consideration.
      It is submitted that in the present case admittedly the defendant did not
      perform his part of evicting the tenants. It is submitted, therefore, that to
F     allow the suit and pass the decree for specific performance will
      tantamount to giving a premium to the defendant, who has failed to
      perform his part under the agreement to sell.
             4.2 It is submitted that as such against the total sale consideration
      of Rs.16.20 lakhs, defendant paid only Rs. 3,60,001/- at the time of
G     execution of agreement to sell. It is submitted that, therefore, when
      subsequently the learned Trial Court held that plaintiff did not elect to
      get the sale deed executed with tenants, the defendant rightly filed an
      affidavit before the High Court and stated that he is ready and willing to
      get the sale deed executed even with tenants. It is submitted, therefore,
H     that by allowing the defendant to file the affidavit to contend that he is
                   K. KARUPPURAJ v. M. GANESAN                                  751
                          [M. R. SHAH, J.]

ready and willing to get the sale deed executed and to purchase the             A
property with tenants, the High Court has done the substantial justice so
as to not to permit the defendant to take the benefit of his own wrong in
not evicting the tenants.
       4.3 It is further submitted by learned senior counsel appearing on
behalf of the respondent - plaintiff that even the defendant has not returned   B
the amount of part consideration paid, i.e., Rs.3,60,001/- with interest @
18% p.a. to the plaintiff though directed by the learned Trial Court. In
the alternative, it is submitted by the learned senior counsel appearing on
behalf of the respondent that the technicalities shall not come in the way
of the plaintiff and, therefore, the matter may be remitted to the High
                                                                                C
Court and permit the plaintiff to amend the plaint in exercise of powers
under Order VI Rule 17 of the CPC.
       4.4 Alternatively, it is also submitted that if this Court is of the
opinion that the High Court ought not to have disposed of the appeal
without determining the points for determination on the issues framed by
                                                                                D
the learned Trial Court, in that case, the matter may be remitted to the
High Court for fresh consideration and to decide and dispose of the
appeal afresh after framing the points for determination as required under
Order XLI Rule 31 of the CPC. Making above submissions, it is prayed
to dismiss the present appeal.
                                                                                E
       5. Heard the learned counsel for the respective parties at length.
       6. In the present case, the original plaintiff instituted a suit for
specific performance of the contract. On appreciation of evidence, the
learned Trial Court held the issue of readiness in favour of the plaintiff.
However, refused to pass the decree for specific performance of the             F
contract on the ground that the plaintiff was not willing to purchase the
property with tenants. Therefore, the issue with respect to willingness
was held against the plaintiff. In an appeal filed before the High Court
under Section 96 read with Order XLI by the impugned judgment and
order, the High Court has allowed the said appeal and has quashed and
set aside the decree passed by the learned Trial Court dismissing the suit      G
and consequently has decreed the suit for specific performance. Having
gone through the impugned judgment and order passed by the High Court,
it can be seen that there is a total non-compliance of the Order XLI Rule
31 of CPC. While disposing of the appeal, the High Court has not raised
the points for determination as required under Order XLI Rule 31 CPC.           H
752               SUPREME COURT REPORTS                          [2021] 8 S.C.R.


A     It also appears that the High Court being the First Appellate court has
      not discussed the entire matter and the issues in detail and as such it
      does not reveal that the High Court has re-appreciated the evidence
      while disposing of the first appeal. It also appears that the High Court
      has disposed of the appeal preferred under Order XLI CPC read with
      Section 96 in a most casual and perfunctory manner. Apart from the
B
      fact that the High Court has not framed the points for determination as
      required under Order XLI Rule 31 CPC, it appears that even the High
      Court has not exercised the powers vested in it as a First Appellate
      Court. As observed above, the High Court has neither re-appreciated
      the entire evidence on record nor has given any specific findings on the
C     issues which were even raised before the learned Trial Court.
             6.1 In the case of B.V. Nagesh and Anr. (supra), this Court has
      observed and held that without framing points for determination and
      considering both facts and law; without proper discussion and assigning
      the reasons, the First Appellate Court cannot dispose of the first appeal
D     under Section 96 CPC and that too without raising the points for
      determination as provided under Order XLI Rule 31 CPC. In paragraphs
      3 and 4, it is observed and held as under:-
            “3. How the regular first appeal is to be disposed of by the
            appellate court/High Court has been considered by this Court in
E           various decisions. Order 41 CPC deals with appeals from original
            decrees. Among the various rules, Rule 31 mandates that the
            judgment of the appellate court shall state:
            (a)     the points for determination;

F           (b)     the decision thereon;
            (c)     the reasons for the decision; and
            (d)     where the decree appealed from is reversed or varied, the
                    relief to which the appellant is entitled.

G           4. The appellate court has jurisdiction to reverse or affirm the
            findings of the trial court. The first appeal is a valuable right of the
            parties and unless restricted by law, the whole case is therein
            open for rehearing both on questions of fact and law. The judgment
            of the appellate court must, therefore, reflect its conscious
            application of mind and record findings supported by reasons, on
H
                   K. KARUPPURAJ v. M. GANESAN                                  753
                          [M. R. SHAH, J.]

      all the issues arising along with the contentions put forth, and          A
      pressed by the parties for decision of the appellate court. Sitting
      as a court of first appeal, it was the duty of the High Court to deal
      with all the issues and the evidence led by the parties before
      recording its findings. The first appeal is a valuable right and the
      parties have a right to be heard both on questions of law and on
                                                                                B
      facts and the judgment in the first appeal must address itself to all
      the issues of law and fact and decide it by giving reasons in support
      of the findings. (Vide Santosh Hazari v. Purushottam Tiwari
      [(2001) 3 SCC 179], SCC p. 188, para 15 and Madhukar v.
      Sangram [(2001) 4 SCC 756] , SCC p. 758, para 5.)”
                                                                                C
       6.2 In the case of Emmsons International Limited and Anr.
(supra) while considering the scope and ambit of exercise of powers
under Section 96 of CPC by the Appellate Court and after considering
the decisions of this Court in the cases of Madhukar and Ors. Vs.
Sangram and Ors., (2001) 4 SCC 756; H.K.N. Swami Vs. Irshad
Basith (Dead) by LRs., (2005) 10 SCC 243 and Jagannath Vs.                      D
Arulappa and Anr., (2005) 12 SCC 303, it is held that sitting as a
Court of First Appeal, it is the duty of the Appellate Court to deal with all
the issues and the evidence led by the parties before recording its findings.
      6.3 In the case of H. Siddiqui (Dead) by LRs. (supra), it is
observed and held in paragraph 21 as under:-                                    E
      “21. The said provisions provide guidelines for the appellate court
      as to how the court has to proceed and decide the case. The
      provisions should be read in such a way as to require that the
      various particulars mentioned therein should be taken into
      consideration. Thus, it must be evident from the judgment of the          F
      appellate court that the court has properly appreciated the facts/
      evidence, applied its mind and decided the case considering the
      material on record. It would amount to substantial compliance
      with the said provisions if the appellate court’s judgment is based
      on the independent assessment of the relevant evidence on all             G
      important aspects of the matter and the findings of the appellate
      court are well founded and quite convincing. It is mandatory for
      the appellate court to independently assess the evidence of the
      parties and consider the relevant points which arise for adjudication
      and the bearing of the evidence on those points. Being the final
      court of fact, the first appellate court must not record mere general     H
754             SUPREME COURT REPORTS                            [2021] 8 S.C.R.


A            expression of concurrence with the trial court judgment rather it
             must give reasons for its decision on each point independently to
             that of the trial court. Thus, the entire evidence must be considered
             and discussed in detail. Such exercise should be done after
             formulating the points for consideration in terms of the said
             provisions and the court must proceed in adherence to the
B
             requirements of the said statutory provisions. (Vide Sukhpal
             Singh v. Kalyan Singh [AIR 1963 SC 146] , Girijanandini
             Devi v. Bijendra Narain Choudhary [AIR 1967 SC 1124] , G.
             Amalorpavam v. R.C. Diocese of Madurai [(2006) 3 SCC 224],
             Shiv Kumar Sharma v. Santosh Kumari [(2007) 8 SCC 600]
C            and Gannmani Anasuya v. Parvatini Amarendra Chowdhary
             [(2007) 10 SCC 296 : AIR 2007 SC 2380] .)”
             7. Applying the law laid down by this Court in the aforesaid
      decisions, if the impugned judgment and order passed by the High Court
      is considered, in that case, there is a total non-compliance of the provisions
D     of the Order XLI Rule 31 CPC. The High Court has failed to exercise
      the jurisdiction vested in it as a First Appellate Court; the High Court has
      not at all re-appreciated the entire evidence on record; and not even
      considered the reasoning given by the learned Trial Court, in particular,
      on findings recorded by the learned Trial Court on the issue of willingness.
      Therefore, as such, the impugned judgment and order passed by the
E
      High Court is unsustainable and in normal circumstances we would have
      accepted the request of the learned senior counsel appearing on behalf
      of the respondent to remand the matter to the High Court for fresh
      consideration of appeal. However, even on other points also, the impugned
      judgment and order passed by the High Court is not sustainable. We
F     refrain from remanding the matter to the High Court and we decide the
      appeal on merits.
             8. It is required to be noted that as per the case of the original
      plaintiff, the defendant was required to evict the tenants and hand over
      the physical and vacant possession at the time of execution of the sale
G     deed on payment of full sale consideration. Even in the suit notice issued
      by the plaintiff, the plaintiff called upon the defendant to evict the tenants
      and thereafter execute the sale deed on payment of full consideration
      from the plaintiff. Even when we consider the pleadings and the averments
      in the plaint, it appears that the plaintiff was never willing to get the sale
      deed executed with tenants and/or as it is. It was the insistence on the
H
                   K. KARUPPURAJ v. M. GANESAN                                 755
                          [M. R. SHAH, J.]

part of the plaintiff to deliver the vacant possession after evicting the      A
tenants. Therefore, on the basis of the pleadings in the plaint and on
appreciation of evidence, the learned Trial Court held the issue of
willingness against the plaintiff. However, before the High Court, the
plaintiff filed an affidavit stating that he is now ready and willing to get
the sale deed executed with respect to the property with tenants and
                                                                               B
unfortunately, the High Court relying upon the affidavit in the first appeal
considered that as now the plaintiff is ready and willing to purchase the
property with tenants and get the sale deed executed with respect to the
property in question with tenants, the High Court has allowed the appeal
and decreed the suit for specific performance. The aforesaid procedure
adopted by the High Court relying upon the affidavit in a First Appeal by      C
which virtually without submitting any application for amendment of the
plaint under Order VI Rule 17 CPC, the High Court as a First Appellate
Court has taken on record the affidavit and as such relied upon the
same. Such a procedure is untenable and unknown to law. First appeals
are to be decided after following the procedure to be followed under the
                                                                               D
CPC. The affidavit, which was filed by the plaintiff and which has been
relied upon by the High Court is just contrary to the pleadings in the
plaint. As observed hereinabove, there were no pleadings in the plaint
that he is ready and willing to purchase the property and get the sale
deed executed of the property with tenants and the specific pleadings
were to hand over the peaceful and vacant possession after getting the         E
tenants evicted and to execute the sale deed. The proper procedure
would have been for the plaintiff to move a proper application for
amendment of the plaint in exercise of the power under Order VI Rule
17 CPC, if at all it would have been permissible in a first appeal under
Section 96 read with Order XLI CPC. However, straightaway to rely
                                                                               F
upon the affidavit without amending the plaint and the pleadings is wholly
impermissible under the law. Therefore, such a procedure adopted by
the High Court is disapproved.
       The learned Trial Court held the issue of willingness against the
plaintiff by giving cogent reasons and appreciation of evidence and
considering the pleadings and averments in the plaint. We have also            G
gone through the averments and the pleadings in the plaint and on
considering the same, we are of the opinion that the learned Trial Court
was justified in holding the issue of willingness against the plaintiff. The
plaintiff was never ready and willing to purchase the property and/or get
the sale deed executed of the property with tenants. It was for the first      H
756             SUPREME COURT REPORTS                              [2021] 8 S.C.R.


A     time before the High Court in the affidavit filed before the High Court
      and subsequently when the learned Trial Court held the issue of willingness
      against the plaintiff, the plaintiff came out with a case that he is ready
      and willing to purchase the property with tenants. For the purpose of
      passing the decree for specific performance, the plaintiff has to prove
      both the readiness and willingness. Therefore, once it is found on
B
      appreciation of evidence that there was no willingness on the part of the
      plaintiff, the plaintiff is not entitled to the decree for specific performance.
      Therefore, in the present case, the learned Trial Court was justified in
      refusing to pass the decree for specific performance.
             9. The submission on behalf of the plaintiff that in the agreement
C     a duty was cast upon the defendant to evict the tenants and to handover
      the vacant and peaceful possession, which the defendant failed and,
      therefore, in such a situation, not to pass a decree for specific performance
      in favour of the plaintiff would be giving a premium to the defendant
      despite he having failed to perform his part of the contract. The aforesaid
D     seems to be attractive but for the purpose of passing a decree for specific
      performance, readiness and willingness has to be established and proved
      and that is the relevant consideration for the purpose of passing a decree
      for specific performance.
              10. Now, so far as the submission on behalf of the plaintiff that
E     even the defendant has not refunded the amount of Rs.3,60,001/- with
      interest @ 18% as ordered by the learned Trial Court concerned, the
      order passed by the learned Trial Court is very clear and the defendant
      is saddled with the law to pay the interest @ 18% till its realization.
      Therefore, the plaintiff is compensated by awarding 18% interest. His
      not refunding the amount of part sale consideration with 18% interest as
F     ordered by the learned Trial Court cannot be a ground to confirm the
      impugned judgment and order passed by the High Court. The plaintiff as
      such could have filed an execution petition to execute the judgment/
      decree passed by the learned Trial Court. Further, we propose to issue a
      direction to the appellant – original defendant directing him to refund the
G     amount of Rs.3,60,001/- with 18% interest from the date of the agreement
      till the date of realization within a period of eight weeks from today.
            11. In view of the above and for the reasons stated above, both
      the appeal succeeds. The impugned judgment and order passed by the
      High Court of judicature at Madras in Appeal Suit No. 94 of 2010 is
H     hereby quashed and set aside and the judgment and decree passed by
                  K. KARUPPURAJ v. M. GANESAN                                  757
                         [M. R. SHAH, J.]

the learned Trial Court stands restored. However, in the facts and             A
circumstances of the case, the appellant herein original defendant is
directed to refund the amount of Rs.3,60,001/- with 18% interest from
the date of agreement till realization within a period of eight weeks from
today. Appeals are allowed to the aforesaid extent, however, there shall
be no order as to costs.
                                                                               B
        Pending applications, if any, also stand disposed of.


Divya Pandey                                                Appeals allowed.

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