Holding

The plaintiff failed to aver and prove readiness and willingness to perform his part of the contract, so specific performance cannot be granted.

Summary

The plaintiff entered into an agreement of sale on 1 Oct 1978 with the owner of a suit property, paying Rs 20,000 of the Rs 30,000 price and agreeing to pay the balance and obtain a registered deed within three years. The owner later sold the property to the appellant on 15 May 1984. The plaintiff served a notice on 8 Aug 1984 and filed a suit for specific performance. The trial court dismissed the suit because the plaintiff failed to aver and prove that he was ready and willing to perform his part of the contract as required by Section 16(c) of the Specific Relief Act, 1963, and also refused discretionary relief under Section 20. The first appellate court affirmed, but the High Court reversed. The Supreme Court held that the plaintiff neither demanded execution of the deed from the owner nor tendered the balance amount within the stipulated period, and therefore did not satisfy the mandatory pleading and proof requirements of Section 16(c) nor the reasonable‑time requirement for discretionary relief. The appeal was allowed, setting aside the High Court judgment and reinstating the dismissal of the suit.

Issues considered

The plaintiff’s pleadings and evidence satisfy the statutory requirement of readiness and willingness under Section 16(c) of the Specific Relief Act, 1963.
Whether discretionary relief under Section 20 of the Specific Relief Act can be granted when the plaintiff has not acted within a reasonable time.
Whether the suit for specific performance was filed within a reasonable time.

Legislation cited

Code of Civil Procedure, 1908s. Form 47, s. Form 48
Specific Relief Act, 1963s. 16(c), s. 20

Subjects

Specific performanceReadiness and willingnessSpecific Relief ActSection 16(c)Section 20Discretionary reliefReasonable timeSale deed

Judgment

A MANJUNA TH ANANDAPPA URF. SHIVAPPA HANASI
v.
TAMMANASA AND ORS.

MARCH 13, 2003

B [BRIJESH KUMAR AND S.B. SINHA, JJ.]

Specific Relief Act, 1963; Section I 6(c) and Section 20: Suit for specific
pe1formance of contract-Dismissed by Trial Court holding that the plaintiff
C having not averred his readiness and willingness to perform his part of
contract-Affirmed by the first appellate Court-Reversed by High Court in
second appeal-On appeal, Held: Plainti/J neither asked the owner of suit
property to execute a deed of sale nor tendered the balance amount in her
favour wifhin the stipulated period-Thus, plaintiff had failed to aver and
prove that he was ready and willing to perform his part of the contract-
D Hence specific performance of the contract cannot be enforced in his favour
for non-compliance with the mandatory provision of the Act-Code of Civil
Procedure-Forms 47 & 48 of Appendix A.

Section 20-Discretionw:v Relief-Grant of-Held: Plaintiff neither made
any effort to get executed deed of sale by the owner nor approached the Court
E within a reasonable time for grunt of relief hence not entitled to a discretiona!J'
relief

Words and Phrases: "Ready and willing"-Meaning of in the context of
Section 16(c) of the Specific Relief Act, 1963.

F Defendant No.I-owner had entered into an agreement with the
plaintiff in respect of suit property on I. I 0.1978 for consideration amount
of Rs. 30,000 out of which Rs. 20,000 was paid as advance with the
stipulation that on payment of balance amount, sale deed had to be
executed within 3 years from the date of agreement. However, the owner
G sold the suit property to another person for Rs. 50,000 on 15.5.1984;
plaintiff served a notice upon the owner on 8.8.1984 demanding specific
performance of the agreement of sale dated 1.10.1978 and also filed a suit
for specific performance in the Court. Trial Court dismissed t~e suit on
ground that plaintiff did not aver in the plaint his readiness and willingness
to perform his part of contract and on not satisfying with his conduct
1068
MANJUNATH ANAND APP A URF. SHIVAPPA HAN AS Iv. TAMMA NASA ] 069

refused to grant discretionary relief as well. The first appellate Court A
affirmed the findings. However, High Court in the second appeal reversed
it. Hence the present appeal filed by the aggrieved vendee.

It was contended for the appellant that plaintiff having failed to make
averment of mandatory provision in terms of Section 16(c) of the Specific
Relief Act, High Court erred in reversing the judgment of the Courts below B
merely on the ground that vendor did not contest the suit; that since
Courts below did not exercise their discretionary jurisdiction under Section
20 of the Act, High Court should not have interfered therewith; and that
the suit was not filed wtthin a reasonable time.

On behalf of the respondent, it was submitted that having regard to c
statement made in the plaint as also in the deposition it was clearly stated
that plaintiff was ready to pay the balance amount of consideration, there
has been a substantial compliance of the provision of the Act.

Allowing the appeal, the Court
D
HELD: 1.1. The agreement was entered into on or about 1.10.1978.
Apart from the vague statements made in the plaint, the plaintiff has not
placed any material on record to show that at any point of time and far
less within a period of 3 years from the date of the said agreement, he
ever asked defendant No. I, owner to execute a deed of sale in his favour E
or tendered the balance amount of.consideration to her. In terms of the
provision under Section 16(c) of the Specific Relief Act, it is incumbent
npon the plaintiff both to aver and prove that he had all along been ready
and willing to perform the essential terms of contract which were required
r to be performed by him. [1074-C, D, GI
F
1.2. Plaintiff has not made any averment as per forms 47 and 48 of
the Appendix A of the Code of Civil Procedure, which prescribe the
manner in which such averments are required to be made by the plaintiff.
Apart from the fact that the date of the purported demand has not been
disclosed, admittedly no such demand was made upon defendant No.I. G
Though the plaintiff in his evidence admitted that defendant No. l had
revoked the power of attorney granted in favour of defendant No. 2, in
his deposition, he merely stated that such revocation took place after the
agreement for sale was executed. If he was aware of the fact that the power
of attorney executed in favour of defendant No. 2 was revoked, the
question of any demand by him upon defendant No. 2 to bring defendant H
1070 SUPREME COURT REPORTS [2003] 2 S.C.R.

A No. I for execution of the agreement for sale would not arise at all.
Furthermore, indisputably the said power of attorney was not a registered
-
one. Defendant No. 2, therefore, could not execute a registered deed of
sale in his favour. The demand, if any, for execution of the deed of sale in
terms of the agreement of sale could have been thus, made only upon
B defendant No. I, the owner of the property. The balance consideration of
Rs. 10,000 also could have been tendered only to defendant No. I. The
purported notice was issued only on 8.8.1984, that is, much after the expiry
of period of three years, within which the agreement of sale was required
to be acted upon. These statements made by the appellant in his deposition
regarding his willingness to pay balance consideration amount of Rs.
C 10,000 for execution of sale deed in respect of the disputed property do
not satisfy the requirements of Section 16(c) of the Specific Relief Act.
[1074-H; 1075-A-E[

1.3. Plaintiff in a suit for specific performance of contract not only
must raise a plea that he had all along been and even on the date of filing
D of suit was ready and willing to perform his part of contract, but also prove
the same. Only in certain exceptional situation where although in letter
and spirit, the exact words had not been used but readiness and willingness
can be culled out from reading all the averments made in the Plaint as a
whole coupled with the materials brought on record at the trial of the suit,
E to the said effect, the statutory requirement ofSection 16(c) of the Specific
Relief Act may be held to have been complied with. Having regard to the
facts and circumstances of the instant case and keeping in view the
decisions of this Court, plaintiff cannot be said to have even substantially
complied with the requirements of law. [I 080-A-Cf

p Ouseph Varghese v. Joseph Aley and Ors.. [1969[ 2 SCC 539; R.C.
Chundiok and Anr. v. Chuni Lal Sahharwa/ and Ors., [1970] 3 SCC 140;
Abdul Khader Rowther v. P.K. Sara Bai and Ors., AIR (1990) SC 682; Syed
Dastagir v. T.R. Gopalakrishna Setty, [I 9991 6 SCC 337; Moti/al Jain v.
Ramdasi Devi and Ors., 12000 I 6 SCC 420 and Pushparani S. Sundaram and
Ors. v. Pauline Manomani James and Ors., 120021 9 SCC 582, relied on.
G
Kidar Lall Seal and Anr. v. Hori Lall Seq al, 119521 SCR 179,
distinguished.

2.1. Plaintiff filed the suit almost after six years from the date of
entering into the agreement to sell. He did not bring any material on record
·--<
H to show that he had ever asked defendant No.I, the owner of the property,
MANJUNA THANANDAPPA URF. SHIYAPPA HANASI v. TAMMANASA [SB. SJNHA,J.] ] 07 J

to execute a deed of sale. He filed a suit only after he came to know that A
the suit land had already been soh by her in favour of the appellant.
Furthermore, it was obligatory on the part of the plaintiff for obtaining a
discretionary relief having regard to Section 20 of the Act to approach
the Court within a reasonable time. Having regard to his conduct, the
plaintiff was not entitled to a discretionary relief. 11080-E-G]
B
Veerayee Ammal v. Seeni Ammal, 12002] I SCC 134 and lourdu Mari
David and Ors. v. louis Chinnaya Arogiaswamy and Ors., [1996] 5 SCC 589,
relied on.

2.2. Both the trial Court and the first appellate Court refused to C
exercise tlieir discretionary jurisdiction in favour of the plaintiff. The High
Court should not have interfered therewith without arriving at a finding
that the discretion has been exercised by the Courts below on wrong ' legal
principle. 11082-D]

lalit Kumar Jain and Anr. v. Jaipur Traders Corporation Pvt. ltd., D
120021 5 SCC 383; Uttar Pradesh Co-operative Federation ltd. v. Sunder
Bros., AIR (1967) SC 249 and Gujarat Steel Tubes Ltd. etc. v. Gujarat Steel
Tubes Mazdoor Sabha and Ors., AIR (1980) SC 1896, relied on.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5662 of 1998.
E
From the Judgment and Order dated 18.3.1998 of the Karnataka High
Court in R.S.A. No. 677 of 1994.

Shantha Kumar Mahale, Rajesh Mahale, K.C. Sudershan and R.C. Kohli
for the Appellants.
F
Amarendra Sharan and ShaP.kar Divate for the Respondent.

The Judgment of the Comt was delivered by

S.B. SINHA, .J. Defendant No. 3 is the appellant herein. Defendant No.
is admittedly the owner of the property in suit. Defendant No. 2 is the G
constituted attorney of Defendant No. I, who, on or about l. l 0.1978 is said
to have entered into an agreement for sale with the Plaintiff in respect of the
suit property bearing No. C.T.S. No. 1921/A ofGadag Betageri City Municipal
area for a total consideration of Rs. 30,000 out of which a sum of Rs. 20,000
was allegedly paid as advance. In terms of the said agreement, the plaintiff
allegedly was put in possession of the suit property. H
1072 SUPREME COURT REPORTS [2003] 2 S.C.R.

A The Deed of sale, pursuant to the said agreement was to be executed
with in 3 years from the date thereof on payment of the balance sum of Rs.
I 0,000/-. Defendant No. 3, the appellant herein, purchased the suit property
by reason of a registered deed of sale dated 15.5.1984 for valuable
consideration of Rs. 50,000/-. The plaintiff on or about 15.5.1984 admittedly
B made an enquiry in the C.T.S. Office to obtain the C.T.S. extract of the suit
property, when he came to learn that the defendant already executed a
registered sale deed in respect of the suit property in favour of the appellant
whereupon he served a notice dated 8.8.1984 upon Defendant Nos. 1 and 2
demanding specific performance of the said agreement of sale dated I. I0.1978.
As regards cause of action, in the Plaint it was stated:
c "The cause of action to this suit arose on 8.8.1984 when the plaintiff
got served the notice to the defendants demanding specific performance
of agreement of saie dated 1.10.1978 and when the defendants failed
to execute the sale deed in favour of the plaintiff."

D It is not in dispute that the plaintiff in his plaint did not make any
averment as regard his readiness and willingness to perfo1111 his part c,f the
contract as is mandatorily required in terms of Section 16(c) of the Specific
Relief Act, 1963. He merely alleged:

"After the said agreement of sale, the Plaintiff demanded the Defendant
E No. 2 to bring the Defendant No. 1 and to execute a registered sale
deed both together after receiving the balance of sale consideration.
But Defendant No. 2 went on postponing the same by one or the
other reasons. At last this Plaintiff demanded Defendant Nos. I and 2
by giving notice. Even though the Defendant No. 2 has received the
notice, he has not replied anything. The notice sent to the Defendant
F No. 1 returned unclaimed. lnspite of the notice, Defendant No. 1 and
2 failed to execute the registered sale deed in respect of the suit
property in favour of the Plaintiff."

No notice admittedly was served on Defendant No. 1, the owner of the ...._
, __
G property.

The learned trial judge dismissed the suit holding inter alia that the
plaintiff having not averred his readiness and willingness to perform his part
of contract in the plaint, he is not entitled to a decree for specific performance
of contract. The learned trial judge further, having regard to the conduct of
H the plaintiff, refused to grant the discretionary relief in favour of the plaintiff.
MANJUNA TH ANANDAPPA URF. SHIVAPPA HANASI v. TAMMANASA [S.B. SINHA. J.] ] 073

The First Appellate Court on an appeal from the said judgment agreed with A
the said findings.

In the second appeal filed by the plaintiff, the High Court, however,
reversed the said findings. Therein, the only substantial question of law which
was framed was as regards the readiness and willingness on the part of the
plaintiff to perform his part of contract. The High Court answered the said B
question merely stating: "The question of law that was framed was regarding
the willingness and readiness on the part of the plaintiff to perform his part
of the contract. But that question does not arise for consideration for simple
reason that Defendants I & 2 did not contest the case. It, however, entered
into the question as to whether the appellant herein was a bonafide purchaser C
for value. The said question was answered in the negative solely on the
ground that the appellant did not examine himself in tht: suit."

Mr. Mahale, the learned counsel appearing on behalf of the appellant
has raised a short question in support of this appeal. The learned counsel
would contend that in view of the fact that the plaintiff failed and/or neglected D
to aver in the plaint his readiness and willingness to perform his part of
contract, the High Court must be held to have erred in passing the impugned
judgtnent solely on the ground that defendant No. I did not contest the suit.
The learned counsel would submit that an averment in terms of Section 16(c)
of the Specific Relief Act, 1963 is mandatory. Strong reliance in this regard
was placed on Syed Dastagir v. T.R. Gopa/akrishna Setty reported in [1999] E
6 sec 337.

The learned counsel would next contend that, in any event, having
regard to the fact that the trial court as also the first appellate court did not
exercise their discretionary jurisdiction in terms of Section 20 of the said Act, F
the high court should not have interfered therewith.

Mr. Mohale, urged that although time was not the essence of contract,
but it was obligatory on the part of the plaintiff to file a suit within a reasonable
time. Reliance in this connection has been placed on K.S. Vidyanadam and
Ors. v. Vairavan, reported in [1997] 3 sec I. G
Mr. Amarendra Sharan, the learned senior counsel appearing on behalf
of the respondents, on the other hand, would submit that having regard to the
statements by the Plaintiff made in Paragraph 6 of the plaint, as referred to
hereinbefore, as also in his deposition wherein he stated that even on that day
he was ready to pay the balance amount of consideration to the Defendants, H
1074 SUPREME COURT REPORTS [2003] 2 S.C.R.

A it must be held that there has 1:-een a substantial compliance of the requirements
of Section 16(c) of the Specific Relief Act, 1963. The learned counsel in
support of the said contention would place strong reliance in Motifal Jain v.
Ramdasi Devi and Ors., (2000] 6 SCC 420.

The learned counsel would further urge that the pleading should not be
B strictly construed. Reliance in this connection was placed on Kidar Lal/ Seal
and Anr. v. Hari Lal/ Seal, (1952] SCR 179.

The basic fact of the matter is not in dispute. The agreement was
entered into on or about 1.10.1978. Apart from the vague statements made
C in Paragraph 6 of the plaint as noticed hereinbefore, the plaintiff has not
placed any material on record to show that at any point of time and far less
within a period of 3 years from the date of the said, agreement, he ever asked
Defendant No. 1 to execute a deed of sale in his favour or tendered the
balance amount of consideration to her. The plaintiff admittedly served a
notice dated 8.8.1984 upon the Defendant No. 2 alone, that is much after the
D expiry of the said period of 3 years. He, only upon having come to learn that
Defendant No. 1 had transferred the property in suit in favour of the appellant
herein, filed the suit. Admittedly the Defendant No. I did not receive any
notice.

Section 16(c) of the Specific Relief Act reads thus:
E
"Specific performance of a Contract cannot be enforced in favour of
a person:-

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

In terms of the aforementioned provision, it is incumbent upon the
plaintiff both to aver and prove that he had all along been ready and willing
to perform the essential terms of contract which were required to be performed
G by him.

Forms 47 and 48 of the Appendix A of the Code of Civil Procedure
prescribe the manner in which such averments are required to be made by the
plaintiff. Indisputably, the plaintiff has not made any averment to that effect.
He, as noticed hereinbefore, merely contended that he called upon defendant
H No. 2 to bring defendant No. 1 to execute a registered sale deed. Apart from
MANJUNATH ANANDAPPA URF. SHIVAPP/\ HAN/\SI v. TAMMANASA [ S.B. SINHA, J] 1075

the fact that tile date of the purported demand has not been disclosed, A
admittedly no such demand was made upon defendant No, I. We may notice,
at this juncture, that the plaintiff in his evidence admitted that defendant No.
I had revoked the power of attorney granted in favour of defendant No. 2.
In his deposition, he merely stated that such revocation took place after the
agreement for sale was executed. If he was aware of the fact that the power
of attorney executed in favour of defendant No. 2 was revoked, the question B
of any demand by him upon the defendant No. 2 to bring the defendant No.
I for execution of the agreement for sale would not arise at all. Furthermore,
indisputably the said power of attorney was not a registered one. Defendant
No. 2, therefore, could not execute a registered deed of sale in his favour.
The demand, if any, for execution of the deed of sale in terms of the agreement C
of sale could have been, thus, made only upon the Defendant No. 1, the
owner of the property. The balance consideration of Rs. 10,000 also could
have tendered only to Defendant No. 1. As indicated hereinbefore, the
purported notice was issued only on 8.8.1984, that is, much after the expiry
of period of three years, within which the agreement of sale was required to
be acted upon. D
Even in his deposition, he merely said: "As per the agreement the
defendant No. 2 did not execute the sale deed. I issued a notice calling upon
the defendant Nos. 1 and 2 to execute the sale deed after receiving the
balance consideration. However they did not come forward to execute the E
sale deed despite the receipt of the notice. Even today I am ready to pay the
balance consideration of Rs. I 0,000." These statements do not satisfy the
requirements of Section 16(c) of the Specific Relief Act.

The requirement to comply with the mandatory provisions of Section
16(c) of the Specific Relief Act came up for consideration of this Court in F
Ouseph Varghese v. Joseph Aley and Ors., [ 1969] 2 SCC 539 wherein it was
held:

" ............ The plaintiff did not plead either in the plaint or at any
subsequent stage that he was ready and willing to perform the
agreement pleaded in the written statement of defendant. A suit for G
specific performance has to conform to the requirements prescribed
in Forms 47 and 48 of the I st Schedule in the Civil Procedure Code.
In a suit for specific performance it is incumbent on the plaintiff not
only to set out agreement on the basis of which he sues in all its
details. he must go further and plead that he has applied to the H
1076 SUPREME COURT REPORTS [2003) 2 S. C.R.

A defendant specifically to perform the agreemenl pleaded by him but
the defendant has not done so. He must further plead that he has been
and is still ready and willing to specifically perform his part of the
agreement. Neither in the plaint nor at any subsequent stage of the
suit the plaintiff has taken those pleas. As observed by this Court in
Pt. Prem Raj v. D.L.F. Housing and Construction (Private) (Ltd.)
B and Another, (Civil Appeal No. 37/66, decided on 4-4-1968) [reported
in 1968 (3) SCR 648] that it is well settled that in a suit for specific
performance the plaintiff should allege that he is ready and willing to
perform his part of the contract and in the absence of such an allegation
the suit is not maintainable."
c Without_ noticing the said decision, however, another two Judge bench
in R.C. Chandiok and Anr. v. Chuni Lal Sabharwal and Ors. reported in
[I 970] 3 sec 140 stated:

"6 ..... Readiness and willingness cannot be treated as a straight jacket
D formula. These have to be determined from the entirety of facts and
circumstances relevant to the intention and conduct of the party
concerned. In our judgment there was nothing to indicate that the
appellants at any stage were not ready and willing to perform their
part of the contract."

E In Abdul Khader Rowther v. P.K. Sara Bai and Ors. reported in AIR
1990 SC 682 this Court followed Ouseph Varghese (supra) holding:

"His plaint does not contain the requisite pleadings necessary to obtain
a decree for specific performance. This equitable remedy recognized
by the Specific Relief Act cannot be had on the basis of such pleadings
F and evidence."

The question again came up for consideration before a three Judge
bench of this Court in Syed Dastagir v. T.R. Gopalakrishna Setty reported in
(1999] 6 sec 337.

G Therein also the earlier decisions of this Court in Abdul Khader Rowther
(supra) and Ouseph Varghese (supra) were not referred to. However, inter
alia noticing R.C. Chandiok (supra), this Court observed:

"13. It was held in the case of R.C. Chandiok v. Chuni Lal Sabharwal,
[ 1970] 3 SCC 140 that readiness and willingness cannot be treated as
H a strait-jacket formula. This has to be determined from the entirety of
MANJUNATH ANANDAPPA URF. SHIVAPPA HANASI v. TAMMANASA ( S.B. SINHA,J.J] 077

the facts arid circumstances relevant to the intention and conduct of A
the party concerned. Finally, we have no hesitation to hold that the
pleading as made by the plaintiff not only shows his readiness and
willingness to perform his part of the obligation under the contract
but by tendering the total amount shows he has performed his part of
the obligation. We also construe such a plea to be a plea of"readiness B
and willingness" as required under Section 16(c). In view of the
aforesaid findings we hold that the High Court committed an error by
defeating the claim of the plaintiff on the basis of a wrong
interpretation of his plea in terms of the said section."

In that case the requisite averments of the plaintiff in the Plaint was to C
the following effect:

"6 ..... The defendant has entered into an agreement with the plaintiff
on 1-8-1960 ... for a consideration of Rs. 9500.00 ... the plaintiff has
agreed to that on adjustment of the mortgage amount of Rs. 5000.00
and Rs. 500.00 paid towards advance payment of the sale price, that D
on payment of the obtaining sum of Rs. 4000.00 and off, he would
execute a proper sale deed conveying the suit schedule properties... ;
the defendant has accordingly received a sum of Rs. 3680.00 ... from
the plaintiff and has endorsed the same on the agreement on 21-12-
1965. He has further received Rs. 100.00 on 21-3-1966 and Rs. 100.00
on 4-5-1966 and in all Rs. 3880.00. These payments are also duly E
written up in the account-book of the defendant. The plaintiff
approached the defendant to receive the balance amount of Rs. 120.00
towards the sale price and execute the proper sale and he agreed. He
evaded and hence a legal notice was issued on 23-2-1967 calling
upon him to perform his part of the contract. ... He (plaintiff) has F
today deposited in court Rs. 120.00 under RO No. being the balance
due to the defendant."

The said averments were held to be in spirit and substance although
may not be in letter and form of "readiness and willingness" on the part of
the Plaintiff stating: G
"10 ... It is true that in the pleading the specific words "ready and
willing to perform" in this nomenclature are not there but from the
aforesaid plea, could it be read that the plaintiff was not ready and
willing to perform his part of that obligation ? Jn other words, can it
be said that he has not pleaded that be is "ready and willing" to H
1078 SUPREME COURT REPORTS (2003) 2 S.C.R.

A perform his part ? Courts cannot draw any inference in the abstract
or to give such hypertechnical interpretation to defeat a claim of
specific perfonnance which defeats the very objective for which the
said Act was enacted. The section makes it obligatory to a plaintiff
seeking enforcement of specific performance tha1 he must not only
come with clean hands but there should be a plea that he· has
B performed or has been and is ready and willing to perform his part
of !he obligation. Unless this is there, Sec/ion ! 6(c) creates a bar to
the grant of this discretionary relief As we have said, for this 'it is
not necessary to plea by any specific words, if through a'ny words it
reveals the readiness and willingness of the plaintiff to perform his
c part of the obligation then it cannot be said there is non-compliance
of the said section." (Emphasis supplied)

This Court further noticed that despite Explanation appended to Section
16(c), the plaintiff can always tender the amount to the defendant to deposit
in the court for performance towards the contract under the obligation of the
D contract with a view to exhibit to perform his part of obligation.

The aforementioned decision was referred to again by a two Judge
bench of this Court in Moti/a/ Jain v. Ramdasi Devi and Ors. reported in
[2000] 6 SCC 420. In that case also this Court took into consideration the
averments made by the plaintiff in Paragraphs 6 to I I of the plaint and
E opined:

" ............. 9. It is thus clear that an averrnent ofreadiness and willingness
in the plaint is not a mathematical formula which should only be in
specific words. If the averments in the plaint as a whole do clearly
indicate the readiness and willingness of the plaintiff to fulfil his part
F 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 readiness and willingness of the plaintiff in a suit for
specific performance of contract for sale.

In the instant case a perusal of paras 6 to I I of the plaint does clearly
G indicate the readiness and willingness of the plaintiff. The only
obligation which he had to comply with was payment of balance of
consideration. It was stated that he demanded the defendant to receive
the balance of consideration of Rs. 8000 and execute the sale deed.
The defendant was in Patna (Bihar) at the time of notices and when
H he came back to his place the plaintiff filed the suit against him. In
MANJUNATHANANDAPPA URF. SHIVAPPA HANASI '" TAMMANASA [S.B. SINHA,)]) 079

support of his case, he adduced the evidence of PW I and PW 2. The A
plaintiff had parted with two-thirds of the consideration at the time of
execution of Ext. 2. There is no reason why he would not pay the
balance of one-third consideration of Rs. 8000 to have the property
conveyed in his favour."

In Pushparani S. Sundaram and Ors. v. Pauline Manomani James and B
Ors., reported in (2002) 9 SCC 582 it is stated:

"5 ....... So far there being a plea that they were ready and willing to
perform their part of the contract is there in the pleading, we have no
hesitation to conclude, that this by itself is not sufficient to hold that
the appellants were ready and willing in terms of Section 16(c) of the C
Specific Relief Act. This requires not only such plea but also proof
of the same. Now examining the first of the two circumstances, how
could mere filing of this suit, after exemption was granted be a
circumstance about willingness or readiness of the plaintiff. This at
the most could be the desire of the plaintiff to have this property. It D
may be for such a desire this suit was filed raising such a plea. But
Section 16(c) of the said Act makes it clear that mere plea is not
sufficient, it has to be prov.ed.

6. Next and the only other circumstance relied upon is about the
tendering of Rs. 5000, which was made on 2.3.1982 which was even E
prior to the grant of the exemption. Such small feeder to the vendor
is quite often made to keep a vendor in good spirit. Jn this case the
only other payment made by the plaintiff was Rs.5000 at the time of
execution of the agreement of sale. Thus, the total amount paid was
insignificantly short of the balance amount for the execution of the
sale deed. Thus in our considered opinion the said two circumstances F
taken together, is too weak a filament to stand even to build an image
of readiness and willingness. Section 16(c) of the Specific Relief Act
requires that not only there be a plea of readiness and willingness but
it has to be proved so. It is not in dispute that except for a plea there
is no other evidence on record to prove the same except the two G
circumstances. It is true that mere absence of a plaintiff coming in the
witness box by itself may not be a factor to conclude that he was not
ready and willing in a given case as erroneously concluded by the
High Court.. ..... " (emphasis supplied)

The decisions of this Court, therefore, leave no manner of doubt that H
1080 SUPREME COURT REPORTS [2003] 2 S.C.R.

A a Plaintiff in a suit for specific performance of contract not only must raise
a plea that he had all along been and even on the date of filing of suit was ·-
ready and willing to perfonn his part of contract, but also prove the same.
Only in certain exceptional situation where although in letter and spirit, the
exact words had not been used but readiness and willingness can be culled
B out from reading all the averments made in the Plaintiff as a whole coupled
with the materials brought on record at the trial of the suit, to the said effect,
the statutory requirement of Section 16( c) of the Specific Relief Act may be
held to have been complied with.

Having regard to the facts and circumstances of the case and keeping
C in view the decisions of this Court, as referred to herein before, w~ are of the
opinion that the plaintiff cannot be said to have even substantially complied
with the requirements of law.

Kidar Lall Seal and Anr. v. Hari Lall Seal, (1952] SCR 179, whereupon
reliance has been placed by Mr. Amarendra Saran, has no application in the
D instant case. Therein, this Court was concerned with the 'inartistical wordings'
of the relief claimed by the plaintiff, having regard to Order XXXIV of the
Civil Procedure Code. It was held:

"But reading the two reliefs together, I am of opinion that though
the claim is inartistically worded the plaintiff has in substance asked
E for a mortgage decree up to a limit of Rs. 40,253-11-10 with interest
against each defendant. No other kind of decree could be given under
Order XXXIV. Therefore, though he has not used the word
'subrogation' he has asked in substance for the relief to which a
subrogee would be entitled under the Transfer of Property Act."

E There is another aspect of the matter which cannot be lost sight of. The
plaintiff filed the suit almost after six years from the date of entering into the
agreement to sell. He did not bring any material on records to show that he
had ever asked defendant No. I, the owner of the property, to execute a deed
of sale. He filed a suit only after he catne to know that the suit land had
F already been sold by her in favour of the appellant herein. Furthermore, it
was obligatory' on the part of the plaintiff for obtaining a discretionary relief
having regard to Section 20 of the Act to approach the court within a
reasonable time. Having regard to his conduct, the plaintiff was not entitled
to a discretionary relief.

G In Veerayee Amma/ v. Seeni Amma/ reported in (2002] I SCC 134 the
MANJUNATHANANDAPPA URF. SHIVAPPAHANAS! v. TAMMANASA[S.B. S!NHA,J.] I 081
law is stated in the following tenns: A
"11. When, concededly, the time was not of the essence of the contract,
the appellant-plaintiff was required to approach the court of law within
a reasonable time. A Constitution Bench of this Hon 'ble Court in
Chand Rani v. Kamal Rani, [1993] I SCC 519 held that in case of
sale of immovable property there is no presumption as to time being B
of the essence of the contract. Even if it is not of the essence of
contract, the court may infer that it is to be performed in a reasonable
time if the conditions are (i) from the express terms of the contract;
(ii) from the nature of the property; and (iii) from the surrounding
circumstances, for example, the object of making the contract. For C
the purposes of granting relief, the reasonable time has to be
ascertained from all the facts and circumstances of the case.

12. In K. S. Vidyanadam v. Vairavan (1997) 3 SCC I this Court held:
(SCC p. 11, para 14)
"Even where time is not of the essence of the contract, the plaintiff D
must perform his part of the contract within a reasonable time
and reasonable time should be determined by looking at all the
surrounding circums\ances including the express terms of the
contract and the nature of the property."
13. The word "reasonable" has in law prima facie meaning of E
reasonable in regard to those circumstances of which the person
concerned is called upon to act reasonably knows or ought to know
as to what was reasonable. It may be unreasonable to give an exact
definition of the word "reasonable". The reason varies in its conclusion
according to idiosyncrasy of the individual and the time and F
circumstances in which he thinks. The dictionary meaning of the
"reasonable time" is to be so much time as is necessary, under the
circumstances, to do conveniently what the contract or duty requires
should be done in a particular case. In other words it means, as soon
as circumstances permit. In P. Ramanatha Aiyar's The Law Lexicon
it is defined to mean : G
"A reasonable time, looking at all the circumstances of the case;
a reasonable time under ordinary circumstances; as soon as
circumstances will permit; so much time as is necessary under the
circumstances, conveniently to do what the contract requires should
be done; some more protracted space than 'directly'; such length H
1082 SUPREME COURT REPORTS [2003] 2 S.C.R.

A of time as may fairly, and properly, and reasonably be allowed or
required, having regard to the nature of the act or duty and to the·
·-
attending circumstances; all these convey more or less the same
idea".

In Lourdu Mari David and Ors. v. Louis Chinnaya Arogiaswamy and
B Ors .. reported in (1996) 5 sec 589 this Court observed:

"2. It is settled law that the party who seeks to avail of the equitable
jurisdiction of a court and specific performance being equitable relief,
must come to the court with clean hands. In other words the party
who makes false allegations does not come with clean hands and is
C not entitled to the equitable relief... ..... "

Yet again, both the trial court and the first appellate court refused to
exercise their discretionary jurisdictions in favour of the plaintiff. The High
Court, in our opinion, should not have interfered therewith without arriving
at a finding that the discretion has been exercised by the Courts below on
D wrong legal principle.

In La/it Kumar Jain and Anr. v. Jaipur Traders Corporation Pvt. Ltd.
reported in (2002] 5 SCC 383 this Court observed:

"9. We are of the view that the High Court failed to address itself to
E ce.rtain crucial factors which disentitles the plaintiff to equitable relief.
The High Court reversed a well-considered judgment of the trial
court without adverting to the reasoning of the trial court except in
a cursory manner. In the view we are taking, it is not necessary for
us to dilate on various legal issues debated before us. We shall proceed
F on the basis that in law the plaintiff could annul the contract of sale
before the act of registration got completed and title passed to thf
appellants. We shall further assume that the plaintiff in fact rescinded
the contract with effect from the date of expiry of the time stipulated
in the fourth and final notice dated 3-7-1973. If such rescission or
· termination of contract is not justifiable on facts or having regard to
G the conduct of the plaintiff, the equitable relief under Section 27 or
31 of the Specific Relief Act has to be denied to the plaintiff, no
further question arises for consideration. In such a case, the appellants'
plea has to be accepted and the suit is liable to be dismissed."

Yet again in Nirmala Anand v. Advent Corporation (P) Ltd and Ors.
H reported in (2002] 8 sec 146 this Court observed:
MAN JUN ATH ANANDAPPA URF. SHIVAPPA HANASI v. TAMMANASA [ S.B. SINHA, J.] j 083

"6. It is true that grant of decree of specific performance lies in the A
discretion of the court and it is also well settled that it is not always
necessary to grant specific performance_ simply for the reason that it
is legal to do so. It is further well settled that the court in its discretion
can impose any reasonable condition including payment of an
additional amount by one party to the other while granting or refusing B
decree of specific performance .......... "

[See also M V. Shankar Bhat and Anr. v. Claude Pinto Since
(Deceased) By L.Rs and Ors. [2003] 2 SCALE 124.

It is now also well settled that a court of appeal should not ordinarily C
interfere with the discretion exercised by the _courts below.

In Uttar Pradesh Co-operative Federation Ltd. v. Sunder Bros. reported
in AIR 1967 SC 249 the law is stated in the following tenns:

"8. It is well-established that where the discretion vested in the Court
under s. 34 of the Indian Arbitration Act has been exercised by the D
lower court the appellate court should be slow to interfere with the
exercise of that discretion. In dealing with the matter raised before it
at the appellate stage the appellate court would normally not be
justified in interfering with the exercise of the discretion under appeal
solely on the ground that if it had considered the matter at the trial E
stage it may have come to a contrary conclusion. If the discretion has
been exercised by the trial court reasonably and in a judicial manner
the fact that the appellate court would have taken a different view
may not justify interference with the trial court's exercise of discretion.
As is often said, it is ordinarily not open to the appellate court to
substitute its own exercise of disctetion for that of the trial Judge; but F
if it appears to the appellate court that in exercising its discretion the
trial court has acted unreasonably or capriciously or has ignored
relevant facts then it would certainly be open to the appellate court
to interfere with the trial court's exercise of discretion. This principle
is well-established; but, as has been observed by Viscount Simon, G
L.C., in Charles Osenton & Co. v. Johnston 1942 AC 130 at p. 138:

"The law as to the reversal by a court of appeal of an _order made
by a Judge below in the exercise of his discretion is well-
established, and any difficulty that arises is due only to the
application of well-settled principles in an individual case"."
H
1084 SUPREME COURT REPORTS [2003] 2 S.C.R.

A Yet again in Gujarat Steel Tubes Ltd., etc. v. Gujarat Steel Tubes
Mazdoor, Sabha and Ors., AIR (1980) SC 1896 the law is stated in the
following terms:

"73. While the remedy under Article 226 is extraordinary and is of
Anglo-Saxon vintage, it is not a carbon copy of English processes.
B Article 226 is a sparing surgery but the lancet operates where injustice
suppurates. While traditional restraints like availability of alternative
remedy hold back the court, and judi<>ial power should not ordinarily
rush in where the other two branches fear to tread, judicial daring is
not daunted where glaring injustice demands even affirmative action.
The wide words of Article 226 are designed for service of the lowly
numbers in their grievances if the subject belongs to the court's
province and the remedy is appropriate to the judicial process. There
is a native hue about Article 226, without being anglophilic or
anglophobic in attitude. Viewed from this jurisprudential perspective,
we have to be cautious both in not overstepping as if Article 226
D were as large as an appeal and not failing to intervence where a grave
error has crept in. Moreover, we sit here in appeal over the High
Court's judgment. And an appellate power interferes not when the
order appealed is not right but only when it is clearly wrong. The
difference is real, though fine."

E For the foregoing reasons, we are of the opinion that the impugned
judgment cannot be sustained. It is set aside accordingly.

This appeal is allowed with costs. Counsel's fee assessed at Rs. 5,000.

S.K.S. Appeal allowed.