RAM AWADH (DEAD) BY LRS. AND ORS.versusACHHAIBAR DUBEY AND ANR.

A                RAM AWADH (DEAD) BY LRS. AND ORS.
                                        v.
                      ACHHAIBAR DUBEY AND ANR.

                              FEBRVARY, 1, 2000
B
     (S.P. BHARUCHA, N. SANTOSH HEDGE AND RU~IA PAL, JJ.]

         Specific ReliefAct, 1963-Section l16(c}-Suitfor specific perfonnance
  of an agreement-To aver and prove that person has perfonned or willing to
  perjonn the cot1tract--Held, any defendant in a suit to contend and establish
C that requirements of section 16(c) not complied with-Further such plea can
  be raised by the subsequent Purchaser of the property or his legal repre-
  sentatives.

          'B' filed a suit for specific performance of an ngreement to sell
D property. She did not plead in her plnint that she was ready and ll'illing
    to perform her part of the agreement but was later introduced in the
    plaint by way of an amendment. The first appellate court relying on
    Jugraj Singh's case, did not permil: the nppellant-leeal representatives of
    the subsequent purchaser of the property to plead that 'B' and her legal
E   representatives wer.i never prepared to perform their D8feemenL Hiflh
    Court affirmed the virn. Hence this appeal.

          Allowing the appeal, the Court

         HELD : 1.1. An obligation 1!1 Imposed on the court by section 16
F of the Special Relief Act, 1963 not 1:0 grant relief of specific performance
  of contract to '1 plllintiff who has failed to aver and to prove that he
  has performed or has always been ready and willing to perform his
  part of the agreement, the specific performance whereof he seeks. There
  Is no question of the plea being aYailable to one defendant and not to
G another. It is open to any defendant-either subsequent purchaser of the
  property or his legal representatives-to contend and establish that the
  mandatory requirement of section l6(c) has not been complied ltith and
  it is for the court to determine whether it has or has not been complied
  with and, depending upon its condusion, decree or decline to decree
H the suit. (569-A-C]
                                       566
                RAMAWADHv.ADUBEY(BHARUCHA,J.]                           567

        Jugraj Singh and Anr. v. Labh Singh & Anr., (1995) 2 SCC 31, A
overrulzd.

      Ardeshir H. Mama v. Flora Sasson 55 IA 360; Gomathinayagam Pillai
v. Palaniswami Nadar, (1967) 1 SCR 227; Lakhi Ram v. Trikha Ram,
[1998) 2 sec 720, referred to.
                                                                              B
         CIVIL APPELLATE. JURISDICTION: Civil Appeal No. 4955 of
1999.

     From the Judgment and Order dated 25.2.97 of the Allahabad High
Court in S.A. No. 72 of 1996.                                                 C

     Sudhir Chandra, Parmanand Gaur and Ms. Priya Rao and Achintya
Dvivedi for the Appellants.

         B.D. Agarwala, Anish Dayal and Ms. Manjula Gupta for the Respon-
dents.                                                                        D
         The Judgment of the Court was delivered by

       BHARCCHA, J. This appeal stands referred to a Bench of three
Judges because the two learned Judges who heard it earlier found difficulty
in following the judgment of a Bench of two learned Judges in Jugraj Singh    E
& Anr. v. Labh Singh & Ors., (1995) 2 SCC 31.

       It it not necessary to go into any great detail insofar as the facts are
concerned. The appellants before us are the legal representatives of a
subsequent purchaser of certain property. They were defendants to a suit F
by one Bachna for specific performance of an earlier agreement to sell that
property to her. She had not pleaded in her plaint that she was ready and
willing to perform her part of the agreement, but that plea was later
introduced by way of an amendment. The question now is in regard to
whether she or her legal representatives were, in fact, at all material times
ready and willing to perform their part of that agreement. The first appel- G
late court declined to permit the present appellants to plead and contend
that Bachna and her legal representatives were never prepared to perform
their part of the agreement and, for this purpose, it relied upon . the
judgement of this Court in the case of Jugraj Singh. The High Court, in
second appeal, affirmed that view.                                              H
    568                   SUPREME COURT REPORTS                    [2000) 1 S.C.R.
A        In !ugraj Singh's case, upon substantially similar facts, this Court
  noted Section 16(c) of the Spc:cial Relief Act and the dictum of the Privy
  Council in Ardeshir H Mama v. Flora Sasson (55 Ind App 360) that in a
  suit for specific performance the avcrment of readiness and willingness on
  the plaintiffs part, upto the date of the decree, was necessary. It also noted
B that this Court in Gomathinayagam Pillai v. Palaniswami Nadar, [1967] 1
  SCR 227, had held that it was for the plaintiff in a suit specific performance
  'to establi~h that he was, since the datt: of the contract, continuously ready
  and willing to perform his part of the contract. If he fails to do so, his claim
  for specific performance must fail". lugraj Singh's case, however, held :

c            "That plea is specifically available to the vendor/defendant. It is
             personal to him. The subsequent purchasers have got only the right
             to defend their purchase on the premise that they have no prior
             knowledge of the agr;~ement of sale with the plaintiff. They are
             bona fide purchasers for valuable consideration. Though they are
             necessary parties to the suit, since any decree obtained by the
D            plaintiff would be binding on the subsequent purchasers, the plea
             that the plaintiff must always be ready and willing to perform his'
             part of the contract must be available only to the vendor or his
             legal representatives, hut not to the subsequent purchasers."

E         The decision in Jugraj Singh's case was noted by a Bench of two
    learned Judges in Lakhi Ram v. Trikha Ram, [1998) 2 SCC 720 and
    doubted, but the appeal there was decided on another point.

             Section 16 of the Specific performance Act reads :

F            "16. Personal bars to re:lief. ----- Specific performance of a contract
             cannot be enforced in favour of a person -----

             (a) xx xx x

             (b)xxxxx
G
             ( c) who fails to aver and prove that he has performed or has always
             be;:n ready and willing to perform the essential terms of the
             contract which are to be performed by him, other than terms the
             performance of which has been prevented or wah:ed by the defen-
H            dant.''
             RAMAWADH v. A DUBEY[BHARUCHA,J.]                          569
      The obligation imposed by Section 16 is upon the court not to grant A
specific performance to a plaintiff who has not met the requirements or
clauses (a), (b) and (c) thereof. A court may not, therefore, grant to a
plaintiff who has failed to aVt:r and to prove that he has performed or has
always been ready and wiiling to perform his part of the agreement the
specific performance whereof he seeks. There is, therefore, no question of B
the plea being available to one defendant and not to another. It is open to
any defendant to contend and establish that the mandatory requirement of
Section 16(c) has not been complied with and it is for the court to
determine whether it has or has not been complied with and, depending
upon its conclusion, decree or decline to decree the suit. We are of the
view that the decision in Jugraj Singh 's case is erroneous.                C
       In the circumstances, it becomes necessary to remand the suit to the
trial court, namely, the Court of the Munsif, Gyanpur, Varanasi, to con-
sider whether or not it has been established that the original plaintiff
Bachna and her legal representatives had proved that they had performed
or were always ready and willing to perform the terms of the agreement        D
for sale in Bachna's favour.

       The appeal is allowed. The judgments and order under appeal and
the orders and decrees of the courts below are set aside and the suit is
remanded to the trial court for decision of the question stated above. The    E
suit shall be decided as expeditiously as possible, and within a perioct of
six months from today.

      No order as to costs.

NJ.                                                       Appeal allowed.