SUGHAR SINGHversusHARI SINGH (DEAD) THROUGH LRS. & ORS.

                         [2021] 10 S.C.R. 287                              287


                          SUGHAR SINGH                                     A
                                   v.
         HARI SINGH (DEAD) THROUGH LRS. & ORS.
                   (Civil Appeal No. 5110 of 2021)
                         OCTOBER 26, 2021                                  B
         [M. R. SHAH AND ANIRUDDHA BOSE, JJ.]
       Specific Relief Act, 1963: s.20 – Discretion under – Exercise
of, scope – Held: Discretion under s.20 of the Act is required to be
exercised judiciously, soundly and reasonably – Plaintiff cannot
                                                                           C
be punished by refusing the relief of specific performance despite
the fact that the execution of the agreement to sell in his favour was
established and proved and that he was found to be always ready
and willing to perform his part of the contract – Not to grant the
decree of specific performance despite the execution of the
agreement to sell and part sale consideration having been proved           D
and the plaintiff being always ready and willing to perform his part
of the contract would encourage the dishonesty – In such a situation,
the balance should tilt in favour of the plaintiff rather than in favour
of the defendant-executant of the agreement to sell, while exercising
the discretion judiciously.
                                                                           E
       Specific Relief Act, 1963: s.16(c) – Suit for specific
performance of the agreement to sell – Both, the Trial Court as well
as the First Appellate Court held all the issues in favour of the
plaintiff including the issue that the plaintiff was always ready and
willing to perform his part of contract – However, High Court in
                                                                           F
exercise of powers under s.100 of the CPC reversed the concurrent
findings recorded by both the Courts below on readiness and
willingness, solely on the ground that there were no specific
averments in the plaint required as per s.16(c) of the Act – High
Court also allowed the appeal on the ground that the relief of specific
performance is the discretionary relief under s.20 of the Act and          G
that even though the execution of the agreement to sell is proved
and even the plaintiff was found to be always ready and willing to
perform his part of the obligation under the agreement to sell, the
decree of specific performance is not automatic and such grant of
decree is dependent upon the principles of justice, equity and good
                                                                           H
                                  287
288            SUPREME COURT REPORTS                      [2021] 10 S.C.R.


A     conscience – On appeal, held: High Court committed a grave error
      in holding the issue with respect to readiness and willingness against
      the plaintiff solely on the ground that there were no specific
      averments/pleadings in the plaint as required under s.16(c) of the
      Act – The fact that initially payment of Rs.25,000/- was made at the
      time of execution of the agreement to sell and further sum of
B
      Rs.15,000/- in two installments were paid at the time when the
      subsequent two documents were executed for extension of time and
      even the time was extended at the instance of defendant No.1 and
      the balance amount of Rs.16,000/- was to be paid at the time of
      execution of the sale deed proved that the plaintiff was always ready
C     and willing to perform his part of the contract under the agreement
      to sell – Suit for specific performance of agreement of sell decreed.
            Code of Civil Procedure, 1908: s.100 – Scope of interference
      – Held: There were concurrent findings of fact recorded by Trial
      Court as well as First Appellate Court on readiness and willingness
D     on the part of the plaintiff, which were on appreciation of evidence
      on record – Therefore, in exercise of powers under s.100 of the
      CPC, High Court ought not to have interfered with such findings of
      fact unless such findings are found to be perverse – The findings
      recorded by the Trial Court as well as the First Appellate Court on
      readiness and willingness on the part of the plaintiff showed that
E     they were not perverse and/or contrary to the evidence on record –
      On the contrary, High Court had ignored the necessary aspects on
      readiness and willingness including the conduct on the part of the
      parties – Specific Relief Act, 1963 – s.16(c).
            Allowing the appeal, the Court
F
            HELD: 1 The appellant-original plaintiff instituted the suit
      for specific performance of the agreement to sell. Both, the Trial
      Court as well as the First Appellate Court held all the issues in
      favour of the plaintiff including the issue that the plaintiff was
      always ready and willing to perform his part of contract. However,
G     the High Court in exercise of powers under Section 100 of the
      CPC has reversed the concurrent findings recorded by both the
      Courts below on readiness and willingness, mainly / solely on the
      ground that there are no specific averments in the plaint which
      are required as per section 16(c) of the Act. The High Court has
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 SUGHAR SINGH v. HARI SINGH (DEAD) THROUGH LRS. & ORS.                    289


also allowed the appeal on the ground that the relief of specific         A
performance is the discretionary relief under Section 20 of the
Act and that even though the execution of the agreement to sell
is proved and even the plaintiff was found to be always ready and
willing to perform his part of the obligation under the agreement
to sell, the decree of specific performance is not automatic and
                                                                          B
such grant of decree is dependent upon the principles of justice,
equity and good conscience. [Para 5.1][301-A-D]
       2. In the deposition of plaintiff, it was the specific case on
behalf of the plaintiff that he paid initially Rs.25,000/- as part sale
consideration and the sale deed was to be executed within a period
of two years. That, thereafter, the period was extended on the            C
prayer of vendor who as such was the father-in-law of the plaintiff.
The time period was extended till 31.10.1984 and then the plaintiff
paid a further sum of Rs.7000/- to vendor for which also the
document was executed. Thus, from time to time, a total sum of
Rs.40,000/- was paid out of the total sale consideration of               D
Rs.56,000/-. As per the last document executed which has been
held to be proved even by all the Courts below, the balance
amount of Rs.16,000/- was to be paid at the time of execution of
sale deed. It is specifically stated in the deposition that he was
ready and willing to perform his part of the obligation in terms of
agreement to sell and this fact was known to vendor. Considering          E
the aforesaid facts and circumstances, the High Court committed
a grave error in holding the issue with respect to readiness and
willingness against the plaintiff solely on the ground that there
are no specific averments/pleadings in the plaint as required under
Section 16(c) of the Act. Considering the fact that initially payment     F
of Rs.25,000/- was made at the time of execution of the agreement
to sell and further sum of Rs.15,000/- in two installments were
paid at the time when the subsequent two documents were
executed for extension of time and even the time was extended
at the instance of defendant No.1 and the balance amount of
Rs.16,000/- was to be paid at the time of execution of the sale           G
deed, it can safely be said that the plaintiff was always ready and
willing to perform his part of the contract under the agreement
to sell. [Para 6.1][303-B-F]

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290            SUPREME COURT REPORTS                      [2021] 10 S.C.R.


A           3. There were concurrent findings of fact recorded by the
      Trial Court as well as the First Appellate Court on readiness and
      willingness on the part of the plaintiff, which were on appreciation
      of evidence on record. Therefore, in exercise of powers under
      Section 100 of the CPC the High Court ought not to have
      interfered with such findings of fact unless such findings are found
B
      to be perverse. Having gone through the findings recorded by
      the Trial Court as well as the First Appellate Court on readiness
      and willingness on the part of the plaintiff, findings recorded cannot
      be said to be perverse and/or contrary to the evidence on record.
      On the contrary High Court has ignored the necessary aspects
C     on readiness and willingness including the conduct on the part of
      the parties. [Para 7][304-G-H; 305-A-B]
            4. Even the observations made by the High Court that
      Forms 47 and 48 of the Appendix A to the CPC provide for making
      an averment that the plaintiff has been “and still is ready and
D     willing specifically to perform the agreement on his part” or that
      “the plaintiff is still ready and willing to pay the purchase money
      of the said property to the defendant” and that “there is non-
      compliance of Section 16(c) of the Specific Relief Act and the
      plaint does not even contain any averment that the plaintiff ever
      required defendant no.1 to attend the office of the Sub-Registrar
E
      to execute the sale deed within time agreed are too technical in
      the facts and circumstances of the case. The overall circumstances
      and the conduct on the part of the parties are relevant
      consideration for the purpose of deciding the aforesaid issues
      and the prayer of the plaintiff in whose favour the execution of
F     the agreement to sell has been held to be proved. The High Court
      has given unnecessary stress on the word “still”. [Para 8]
      [305-C-E]
            C.S. Venkatesh v. A.S.C. Murthy (Dead) By Lrs. and
            Ors. (2020) 3 SCC 280: [2020] 2 SCR 676 – relied on
G
            5. In the present case, even it was not the case on behalf
      of the defendants and even there is no finding by the High
      Court that the plaintiff was not having any means to generate
      consideration amount. As per the last extension and the
      document executed the balance amount of sale consideration i.e.
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 SUGHAR SINGH v. HARI SINGH (DEAD) THROUGH LRS. & ORS.                   291


Rs. 16,000/- was to be paid at the time of execution of the sale         A
deed and earlier out of Rs.56,000/- of total sale consideration,
Rs.40,000/- was already paid and there were two extensions at
the instance of the original defendant No.1 who was his father-in-
law. [Para 9][305-H; 306-A-B]
        6. Now, so far as the finding recorded by the High Court         B
and the observations made by the High court on Section 20 of
the Act and the observation that even if the agreement is found
to be duly executed and the plaintiff is found to be ready and
willing to perform his part of the Agreement, grant of decree of
specific performance is not automatic and it is a discretionary
                                                                         C
relief is concerned, the same cannot be accepted and/or approved.
In such a case, many a times it would be giving a premium to the
dishonest conduct on the part of the defendant / executant of the
agreement to sell. Even the discretion under Section 20 of the
Act is required to be exercised judiciously, soundly and
reasonably. The plaintiff cannot be punished by refusing the relief      D
of specific performance despite the fact that the execution of the
agreement to sell in his favour has been established and proved
and that he is found to be always ready and willing to perform his
part of the contract. Not to grant the decree of specific
performance despite the execution of the agreement to sell is
                                                                         E
proved; part sale consideration is proved and the plaintiff is
always ready and willing to perform his part of the contract would
encourage the dishonesty. In such a situation, the balance should
tilt in favour of the plaintiff rather than in favour of the defendant
– executant of the agreement to sell, while exercising the
discretion judiciously. [Para 10][306-B-F]                               F
       7. Even amendment to the Specific Relief Act, 1963 by which
section 10(a) has been inserted, though may not be applicable
retrospectively but can be a guide on the discretionary relief.
Now the legislature has also thought it to insert Section 10(a)
and now the specific performance is no longer a discretionary            G
relief. As such the question whether the said provision would be
applicable retrospectively or not and/or should be made applicable
to all pending proceedings including appeals is kept open.
However, at the same time, the same can be a guide.
[Para 10][306-F-G]
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292            SUPREME COURT REPORTS                    [2021] 10 S.C.R.


A           8. Even otherwise, as such on applicability of Section 20 of
      the Act, no issue was framed either by the Trial Court or by the
      First Appellate Court or even by the High Court. The same has
      been dealt with by the High Court for the first time in a Second
      Appeal under Section 100 of the CPC. Even otherwise no cogent
      reasons have been given as to why the decree of specific
B
      performance shall not be passed in favour of the plaintiff.
      [Para 10.1][306-H; 307-A]
             9. Now, so far as the submission on behalf of the defendant
      Nos.2 to 5 that the agreement to sell was executed long back
      and that defendant Nos.2 to 5 are in possession of the suit property
C
      / land since many years and if the suit is decreed, in that case,
      they will have to vacate the suit land and therefore, the discretion
      may be exercised in favour of defendant Nos.2 to 5 while declining
      the decree of specific performance in favour of the plaintiff is
      concerned, the aforesaid cannot be accepted in the facts and
D     circumstances of the case. There are concurrent findings of fact
      recorded by the Courts below that the defendant Nos.2 to 5 were
      in knowledge of the agreement to sell in favour of the plaintiff;
      despite the same they purchased the suit land surreptitiously.
      Even the sale consideration mentioned in the sale deed in their
      favour is found to be doubtful. Apart from the same, for all these
E
      years the defendant Nos. 2 to 5 cultivated the suit land and enjoyed
      the fruits while in possession. On the contrary, the balance must
      tilt in favour of the plaintiff as the plaintiff is deprived of the
      possession for all these years because of the long-drawn litigation.
      The trial Court passed the decree as far as back on 07.02.1987
F     but because of the appeal before the First Appellate Court and
      thereafter, Second Appeal before the High Court and thereafter
      a remand order by the High Court and again the decision by the
      First Appellate Court and thereafter by the High Court and the
      proceeding before this Court, huge time has lapsed, which cannot
      be to the disadvantage of the plaintiff. [Para 11][307-B-F]
G
            Syed Dastagir v. T.R. Gopalakrishna Setty (1999) 6 SCC
            337 : [1999] 1 Suppl. SCR 351 – referred to



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 SUGHAR SINGH v. HARI SINGH (DEAD) THROUGH LRS. & ORS.                         293


                         Case Law Reference                                    A
[1999] 1 Suppl. SCR 351           referred to                para 3.4
[2020] 2 SCR 676                  relied on                  para 9
        CIVIL APPELLATE JURISDICTION: Civil Appeal No.5110 of
2021.                                                                          B
       From the Judgment and Order dated 09.09.2010 of the High Court
of Judicature at Allahabad in Second Appeal No.836 of 2010.
       Col. Balasubramaniam, Sr. Adv., Abhigya Kushwah, Siddharth
Rajkumar Murarka, Ms. Sunita Yadav, Pradeep Kumar Dubey,
Ms. Anamika Kushwaha, Ms. Nandita Rao, Shashank Shekhar,
                                                                               C
Mrs. Mahija Reddy, K. N. Agnihotri, Virender Arora, Advs. for the
Appellant.
       Pramod Swarup, Sr. Adv., Ms. Pareena Swarup, Ms. Payal
Swarup, Ameet Singh, R. K. Singh, Praveen Swarup, Advs. for the
Respondents.
       The Judgment of the Court was delivered by                              D
       M. R. SHAH, J.
       1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 09.09.2010 passed by the High Court of Judicature at
Allahabad in Second Appeal No.836 of 2010 by which the High Court
has allowed the said Second Appeal under Section 100 of the Code of            E
Civil Procedure, 1908 (for short “CPC”) and has quashed and set aside
the judgment and decree for specific performance of the Agreement
confirmed by the First Appellate Court, the original plaintiff has preferred
the present Appeal.
       2. The facts leading to the present appeal in nut-shell are as under:   F
       2.1 That, one Ram Singh executed the agreement to sell in favour
of original plaintiff – Sughar Singh to sell the suit land for a total sale
consideration of Rs.56,000/-. Rs.25,000/- was received by the executant
as a part sale consideration at the time of the agreement. The said
agreement to sell was executed on 10.10.1976. At this stage it is required     G
to be noted that at the relevant point of time agreement to sell was not
required to be registered. As per the sale agreement the sale deed was
to be executed within a period of 2 years. The time period of 2 years
was extended at the instance of the vendor by the documents
dated 30.09.1978 and 29.09.1981. That, thereafter a further sum of
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294               SUPREME COURT REPORTS                       [2021] 10 S.C.R.


A     Rs.15,000/- was paid. The vendor agreed to receive the balance of
      Rs.16,000/- at the time of execution of the sale deed vide Annexure P3.
      Despite receiving Rs.40,000/- towards part sale consideration and despite
      execution of the agreement to sell, the original vendor executed the sale
      deed of the suit land on 23.06.1984 in favour of defendant Nos.2 to 5.
      That, thereafter, Sughar Singh – vendee filed the Civil Suit No.254 of
B
      1984 in the Court of learned Civil Judge, Mathura City, Mathura (for
      short “learned Trial Court”) against the vendor Ram Singh and Others.
      The persons in whose favour subsequently the sale deed was executed
      on 23.06.1984 were impleaded as defendant Nos.2 to 5 also. In the
      plaint it was also the specific case on behalf of the plaintiff that the
C     defendant Nos.2 to 5 are the real nephews of defendant No.1 and
      defendant Nos.2 to 5 and their father had managed to get defendant
      No.1 in their control and that defendant Nos.2 to 5 and their father have
      got one farzi document in the shape of sale deed without consideration
      executed by defendant No.1 on 23.06.1984 and in their favour though
      they had full knowledge about the agreement to sell executed in favour
D
      of the plaintiff.
             2.2 That, the suit was contested by the defendant No.1 by filing a
      written statement denying the very execution of the agreement to sell
      dated 10.10.1976 as well as two documents of alleged extension of time
      dated 30.09.1978 and 29.09.1981. He also denied having received a
E     sum of Rs.25,000/- at the time of agreement and thereafter Rs.8000/-
      and Rs.7000/- respectively at the time of alleged two extensions as part
      of the sale consideration.
             2.3 That, defendant Nos.2 to 5 by a separate written statement
      contended that they are the bonafide purchasers in good faith of the
F     aforesaid land for a value vide registered sale deed dated 23.06.1984
      and that they had no knowledge about the Agreement dated 10.10.1976.
             2.4 The learned Trial Court framed the following issues.
             “(1) Whether the defendant No.1 had executed the agreement
                    to sell (paper No.7-a) dated 10.10.1976 of the land in dispute
G                   for a sum of Rs.56,000/- after receiving advance of
                    Rs.25,000/- ?
            (2)     Whether under the aforesaid agreement to sell the
                    defendant No.1 has been paid a further amount of Rs.8000/
                    - on 30.09.1978 (Paper No.8-a/1) and Rs.7000/- on
                    29.09.1981 (Paper No.8-a/2)?
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 SUGHAR SINGH v. HARI SINGH (DEAD) THROUGH LRS. & ORS.                           295
                    [M. R. SHAH, J.]

       (3)    Whether the plaintiff has always been ready and willing            A
              and is still ready and willing to get the sale deed executed in
              accordance with the terms of the agreement of the sale. If
              yes, its effect?
       (4)    Whether the defendant Nos.2 to 5 are the bona fide
              purchasers in good faith of the land in dispute for a valuable     B
              consideration without notice of the aforesaid agreement?
       (5)    What relief the plaintiff is entitled to?”
       2.5 On the side of the plaintiff, 6 witnesses came to be examined.
Plaintiff also led the documentary evidences.
                                                                                 C
      On the side of the defendants, 3 witnesses came to be examined
and the documentary evidences were also brought on record.
       2.6 On appreciation of evidence, the learned Trial Court held the
issue Nos.1 and 2 in favour of the plaintiff and against the defendants.
The learned Trial Court concluded that the defendant No.1 had executed           D
an agreement to sell dated 10.10.1976 in favour of the plaintiff for the
sale of his property at Rs.56,000/- and Rs.25,000/- as advance payment
whose validity was extended as per the documents dated 30.09.1978
after receiving Rs.8000/- and on 29.09.1981 after receiving Rs.7000/-.
        2.7 On appreciation of evidence, the learned Trial Court also held
                                                                                 E
the issue No.4 in favour of the plaintiff and against the defendants. On
appreciation of evidence the learned Trial Court specifically held that
the defendant Nos.2 to 5 were aware of the execution of agreement to
sell in favour of the plaintiff at the time of execution of sale deed in their
favour. The learned Trial Court also doubted the payment of sale
consideration paid to the defendant No.1.                                        F
       2.8 On appreciation of evidence the learned Trial Court held issue
No.3 in favour of the plaintiff and against the defendants by observing
that the plaintiff was always ready and willing to get the sale deed executed
as per the terms and conditions of the agreement and that the plaintiff
also proved that the plaintiff has acted as per the conditions of the            G
agreement.
        Consequently and after holding all the issues in favour of the
plaintiff and against the defendants, the learned Trial Court decreed the
suit vide judgment and decree dated 07.02.1987 and directed the defendant
No.1 to execute the sale deed after obtaining income tax certificate             H
296            SUPREME COURT REPORTS                          [2021] 10 S.C.R.


A     from the Income Tax Department within two months and on receipt of
      Rs.16,000/- (balance sale consideration). The learned Trial Court also
      passed an order directing the defendant Nos.2 to 5 also to be a party to
      the sale deed along with defendant No.1.
             2.9 That, as the defendants neither preferred appeal nor acted as
B     per the judgment and decree passed by the learned Trial Court, the
      plaintiff filed Execution Case No.11 of 1987 to execute the judgment
      and decree dated 07.02.1987, on 29.08.1987. As directed by the learned
      Executing Court, the plaintiff deposited the balance amount of Rs.16,000/
      - on 20.09.1987. The original defendant No.1 – Ram Singh died intestate
      on 20.09.1989. That, after a period of almost 9 years from the date of
C
      passing of the judgment and decree by the learned Trial Court, the original
      defendant Nos.2 to 5 preferred appeal before the learned First Appellate
      Court. By judgment and order dated 24.08.1998, the learned First
      Appellate Court dismissed the said appeal and confirmed the judgment
      and decree passed by the learned Trial Court.
D
             2.10 Feeling aggrieved and dissatisfied with the judgment and order
      passed by the learned First Appellate Court dismissing the appeal and
      confirming the judgment and decree passed by the learned Trial Court,
      the original defendant Nos.2 to 5 preferred Second Appeal No.1388/
      1998 before the High Court.
E
             The High Court raised two points for determination viz. (1) non-
      compliance of the provisions of Section 16(c) of the Specific Relief Act,
      1963 (for short “the Act”) to the effect that the plaintiff has failed to
      aver and prove that he was always ready and willing to perform his part
      of the contract; and (2) with regard to the effect of non-registration of
F     the two extensions of time for executing the sale deed pursuant to the
      unregistered agreement to sell dated 10.10.1976 in view of the U.P. Act
      No. 57 of 1976 and to decide the same in accordance with law.
             By judgment and order dated 26.10.2007, the High Court set aside
      the judgment and order passed by the First Appellate Court and remanded
G     the matter to the First Appellate Court for decision afresh on issue no.3
      with regard to readiness and willingness of the plaintiff to get the sale
      deed executed and for framing an additional issue with regard to the
      effect of non-registration of the two documents granting extension of
      time to execute the sale deed in view of the amendment made in Section
      54 of the Transfer of Property Act vide U.P. Act No. 57 of 1976 and to
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 SUGHAR SINGH v. HARI SINGH (DEAD) THROUGH LRS. & ORS.                         297
                    [M. R. SHAH, J.]

decide the same in accordance with law. Vide clarificatory order dated         A
12.11.2008, the High Court specifically observed and clarified that the
matter has been remanded to the First Appellate Court for decision afresh
on issue No.3 and on the aforesaid additional issue only and without
disturbing or setting aside any other findings of the First Appellate Court.
       2.11 That, thereafter, on remand the learned First Appellate Court      B
reconsidered issue No.3 as directed by the High Court and held in favour
of the plaintiff and against the defendants and the First Appellate Court
specifically observed and held that there were necessary averments in
the plaint as required under Section 16(c) of the Act. On the additional
issue learned First Appellate Court held that considering the relevant
provisions the registration was not must. Consequently, the learned First      C
Appellate Court held the issue Nos.3 and 6 in favour of the plaintiff and
against the defendants and consequently dismissed the appeal and again
confirmed the judgment and decree passed by the learned Trial Court.
       2.12 Feeling aggrieved and dissatisfied with the judgment and order
passed by the learned First Appellate Court and the judgment and decree        D
for specific performance passed by the learned Trial Court confirmed
by the learned First Appellate Court, the original defendant Nos.2 to 5
preferred Second Appeal before the High Court and by impugned
judgment and order the High Court has allowed the said appeal and has
quashed and set aside the concurrent findings recorded by both the Courts      E
below and has reversed the judgment and decree of specific performance
solely on the ground that there are no specific averments in the plaint as
required under Section 16(c) of the Act and that there are no specific
averments in the plaint both with regard to readiness and willingness.
      2.13 Feeling aggrieved and dissatisfied with the impugned judgment       F
and order passed by the High Court, the original plaintiff has preferred
the present Appeal.
       3. Shri Col. Balasubramaniam, learned Senior Advocate appearing
on behalf of the appellant – original plaintiff has vehemently submitted
that in the facts and circumstances of the case the High Court has             G
committed grave error in allowing the Second Appeal under Section 100
of the CPC and has erred in setting aside the concurrent findings recorded
by both the Courts below insofar as the issue with respect to the readiness
and willingness and non-compliance of section 16(c) of the Act is
concerned.
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298             SUPREME COURT REPORTS                          [2021] 10 S.C.R.


A            3.1 It is vehemently submitted by the learned Senior Advocate
      appearing on behalf of the original plaintiff that even the reasoning and
      conclusion recorded by the High Court that the suit has to fail for non-
      compliance of pleadings as per section 16(c) of the Act is contrary to
      the record and law laid down by this Court. It is submitted that as per the
      settled proposition of law laid down by this Court, for determining the
B
      readiness and willingness, the suit has to be read as a whole, the pith and
      substance being that ‘readiness and willingness’ has to be in spirit and
      not in the letter and form.
             3.2 It is further submitted that in the present case the plaintiff
      specifically pleaded in paragraphs 1 to 4 of the plaint and in paragraph
C     11 that he was always ready and willing to get the sale deed executed
      and registered and perform his part of agreement, but the defendant
      No.1 refused and hence, he had to file the suit. It is submitted that
      therefore finding recorded by the High Court is contrary to the record
      and hence, perverse.
D            3.3 It is further submitted by learned Senior Advocate appearing
      for the appellant that High Court has not properly appreciated the fact
      that in fact out of total sale consideration of Rs.56,000/-, Rs.40,000/-
      was already paid and only a balance of Rs.16,000/- was left to be paid,
      which as such was to be paid at the time of execution of the sale deed,
E     even as admitted by the vendor in the document at Annexure P3. It is
      submitted that therefore it cannot be said that the plaintiff was not ready
      and willing to perform his part of the contract.
            3.4 It is further submitted that even assuming for the sake of
      arguments that the pleadings are not as per prescribed form, the same
F     does not render the suit not maintainable in view of the law laid down by
      this Court in the case of Syed Dastagir Vs. T.R. Gopalakrishna Setty
      reported in (1999) 6 SCC 337.
             3.5 It is further submitted that as such the question of readiness
      was very much pleaded and demonstrated by the necessary averments
G     in the plaint. It is submitted that the finding by the High Court that the
      plaintiff has only stated about his readiness and not expressed his
      willingness to perform his obligation is fatal and it overlooks the contents
      of document P3 wherein it was agreed by the vendor to receive balance
      of Rs.16,000/- at the time of executing sale deed and in the plaint itself
      there were specific averments that the plaintiff had gone to Sub-Registrar
H     office and asked the vendor to execute the deed but he refused.
 SUGHAR SINGH v. HARI SINGH (DEAD) THROUGH LRS. & ORS.                           299
                    [M. R. SHAH, J.]

        3.6 It is further submitted that the High Court has even erred in        A
non-suiting the plaintiff on applicability of proviso to Section 20 of the
Act. It is submitted that the High Court has erred in observing that it is
not mandatory but discretionary to grant specific relief. It is submitted
that the reasoning given by the High Court that even if the agreement to
sell is proved and even if the part or major portion of the sale consideration
                                                                                 B
is paid and even if the readiness and willingness is also proved, grant of
decree for specific performance is discretionary is unsustainable. It is
submitted that if such an interpretation is accepted, in that case, in no
case, the decree for specific performance would be passed. It is submitted
that even the discretion not to grant relief cannot be exercised dehors
the conduct of the parties. It is submitted that every discretion has to be      C
exercised soundly and reasonably.
        3.7 It is further submitted that even otherwise looking to the
conduct on the part of the defendants more particularly defendant Nos.2
to 5 to get the sale deed executed in their favour despite having knowledge
of the agreement to sell executed by the defendant No.1 in favour of the         D
plaintiff and even the payment of sale consideration by the defendant
Nos.2 to 5 is doubtful and is not proved, section 20 of the Act shall not
come in the way of the plaintiff in getting the relief of decree for specific
performance.
       It is submitted that as such in the facts and circumstances of the        E
case, section 20 of the Act shall not be applicable and/or attracted at all.
      3.8 It is further submitted that as such there were concurrent
findings of fact recorded by both the Courts below on readiness and
willingness which were on appreciation of evidence. The High Court
ought not to have set aside the concurrent findings, in exercise of powers       F
under Section 100 of the CPC.
       3.9 It is further submitted that even no issue was framed either by
the learned Trial Court or by the First Appellate Court on applicability of
Section 20 of the Act and the High Court has dealt with and considered
the same for the first time in a Second Appeal under Section 100 of the          G
CPC, which is wholly impermissible and which is beyond the scope and
ambit of exercise of powers under Section 100 of the CPC.
        Making above submissions and relying upon the above decisions,
it is prayed to allow the present appeal.
                                                                                 H
300             SUPREME COURT REPORTS                          [2021] 10 S.C.R.


A           4. Present appeal is vehemently opposed by Shri Pramod Swarup,
      learned Senior Advocate appearing on behalf of the defendant Nos.2 to
      5.
             4.1 It is submitted that the High Court has rightly dismissed the
      suit and refused to grant the relief for specific performance in favour of
B     the plaintiff on the ground that there were no sufficient required averments
      in the plaint as per Section 16(c) of the Act.
              4.2 It is submitted that the High Court has rightly drawn the
      distinction between readiness and willingness. It is submitted that cogent
      reasons have been given by the High Court on readiness and willingness.
C     It is submitted that non-compliance of section 16(c) of the Act is fatal to
      the case of the plaintiff and therefore, the plaintiff is not entitled to the
      discretionary relief of decree for specific performance.
             4.3 It is further submitted that even otherwise the High Court is
      absolutely justified in observing that in view of section 20 of the Act, the
D     decree for specific performance is discretionary. It is submitted that
      therefore as such the High Court has rightly ordered the transferees to
      refund the amount of Rs.40,000/- to the plaintiff with interest at the rate
      of 8% per annum with effect from 23.06.1984 till the payment which
      they had deposited. It is submitted that as such the respondents –
      defendant Nos.2 to 5 had deposited a sum of Rs.1,24,135/- on 11.10.2010
E     in the bank, however the plaintiff refused to take the money which was
      calculated as per the directions of the High Court.
             4.4 It is further submitted by Shri Swarup, learned Senior Advocate
      appearing on behalf of the defendant Nos.2 to 5 that the agreement to
      sell was executed as far as back on 10.10.1976 and by now more than
F     45 years have passed and the defendant Nos.2 to 5 are in possession
      since many years, therefore, if the judgment and decree passed by the
      learned Trial Court is restored, defendant Nos.2 to 5 have to vacate the
      suit land and it will cause undue hardships to the defendant Nos.2 to 5
      and therefore, considering Section 20 of the Act, it is prayed not to
G     interfere with the impugned judgment and order passed by the High
      Court by which the High Court has granted equitable relief.
            Making above submissions, it is prayed to dismiss the present
      appeal.
             5. Heard learned counsel appearing for the respective parties at
H     length.
 SUGHAR SINGH v. HARI SINGH (DEAD) THROUGH LRS. & ORS.                           301
                    [M. R. SHAH, J.]

       5.1 At the outset it is required to be noted that the appellant herein    A
– original plaintiff instituted the suit for specific performance of the
agreement to sell dated 10.10.1976. The learned Trial Court as well as
the learned First Appellate Court decreed the suit in favour of the plaintiff.
Both, the learned Trial Court as well as the learned First Appellate Court
held all the issues in favour of the plaintiff including the issue that the
                                                                                 B
plaintiff was always ready and willing to perform his part of contract.
However, the High Court in exercise of powers under Section 100 of
the CPC has reversed the concurrent findings recorded by both the
Courts below on readiness and willingness, mainly / solely on the ground
that there are no specific averments in the plaint which are required as
per section 16(c) of the Act. The High Court has also allowed the appeal         C
and consequently dismissed the suit for specific performance on the
ground that the relief of specific performance is the discretionary relief
under Section 20 of the Act and that even though the execution of the
agreement to sell is proved and even the plaintiff was found to be always
ready and willing to perform his part of the obligation under the agreement
                                                                                 D
to sell, the decree of specific performance is not automatic and such
grant of decree is dependent upon the principles of justice, equity and
good conscience.
       6. Now, so far as the observations made by the High Court on
non-compliance of the provision of Section 16(c) of the Act is concerned,
having gone through the necessary averments in the plaint it cannot be           E
said that the averments / pleadings lack the requirement of Section 16(c)
of the Act. The necessary averments and pleadings on readiness and
willingness read as under:
       “2. That when two years were about to complete, the defendant
       requested the plaintiff to extend the date till 31.10.1981 and also       F
       took Rs.8000/- out of the balance money. Defendant No.1 is the
       father-in-law of the plaintiff and for that reason, the plaintiff was
       ready to give all kinds of accommodations to him. Plaintiff gave
       further Rs.8000/- to the defendant No.1 on 30.09.1978 and the
       time period for the execution between the plaintiff and the               G
       defendant No.1 was extended to 31.10.1981. The defendant No.1
       got this agreed date written legally and appended his thumb
       impression on it and gave it to the plaintiff.
       3. That even by 31.10.1981, the defendant no.1 could not get his
       land cleared of the loan from the bank because his brother Ranjeet        H
302      SUPREME COURT REPORTS                          [2021] 10 S.C.R.


A     Singh was also involved in that loan and he did not want to give
      his share of money completely and for this reason, the defendant
      No.1 requested to further increase the time period for the execution
      so that the bank loan could be cleared and the land gets free from
      all liabilities and the same could be executed and registered in the
      name of the plaintiff. For the reason of the relation and also that
B
      there was too much of love and affection between the defendant
      No.1 and the wife of the plaintiff who is the daughter of the
      defendant No.1, the plaintiff agreed to accommodate the defendant
      No.1 in all manner and for this reason, plaintiff accepted the prayer
      of the defendant No.1 and extended the date for execution and
C     registration till 31.10.1984 and also gave Rs.7000/- out of the
      balance amount of money to the defendant No.1. In this manner,
      out of the total amount of Rs.56,000/- agreed for the land, Rs.40,000/
      - had already reached the defendant No.1 and only Rs.16,000/-
      was balance to be paid by the plaintiff. The defendant No.1 also
D     gave this in writing on 29.09.1981 to the plaintiff.
      4. That the plaintiff has always been and even today, ready and
      willing to get the sale deed executed and registered and perform
      his part of the agreement in terms of its terms and conditions and
      the same is in complete knowledge of the defendant No.1.
E
      8. That the plaintiff even got the notice served through registered
      post by Sh. Mahesh Chandra Chaturvedi, Advocate in respect of
      the abovementioned agreement and gave him the warning that he
      would not get the execution and registration done in the name of
      any other person than the plaintiff. In hurry, there were some
F     mistakes that occurred in the notice.
      11. That it was told to the defendant No.1 to come to the Sub-
      Registrar’s office at Chatta and in respect of the abovementioned
      agreement, execute and register the disputed land in the name of
      the plaintiff and also give the possession of the same and also told
G     to the defendants No.2 – 5 that because they got the false sale
      deed registered in their favour, they should also get involved with
      the defendant No.1 in the execution and registration in the favour
      of the plaintiff. But the defendant No.1 said that because the
      defendants No.2 – 5 and their father are denying him and that he
H     cannot go against their wished, he cannot do the execution and
 SUGHAR SINGH v. HARI SINGH (DEAD) THROUGH LRS. & ORS.                         303
                    [M. R. SHAH, J.]

      registration and the defendants No.2 – 5 also denied to do or get        A
      involved with defendant No.1 to do the execution and registration
      and for this reason, the plaintiff is forced to institute the present
      suit.”
        6.1 Even in the deposition it was the specific case on behalf of the
plaintiff that he paid initially Rs.25,000/- as part sale consideration and    B
the sale deed was to be executed within a period of two years. That,
thereafter, the period was extended on the prayer of Ram Singh who as
such was the father-in-law of the plaintiff. The time period was extended
till 31.10.1984 and then the plaintiff paid a further sum of Rs.7000/- to
Ram Singh for which also the document was executed. Thus, from time
                                                                               C
to time, a total sum of Rs.40,000/- was paid out of the total sale
consideration of Rs.56,000/-. As per the last document executed which
has been held to be proved even by all the Courts below, the balance
amount of Rs.16,000/- was to be paid at the time of execution of sale
deed. It is specifically stated in the deposition that he was ready and
willing to perform his part of the obligation in terms of agreement to sell    D
and this fact was known to Ram Singh. Considering the aforesaid facts
and circumstances, the High Court has committed a grave error in holding
the issue with respect to readiness and willingness against the plaintiff
solely on the ground that there are no specific averments / pleadings in
the plaint as required under Section 16(c) of the Act. Considering the
                                                                               E
fact that initially payment of Rs.25,000/- was made at the time of
execution of the agreement to sell and further sum of Rs.15,000/- in two
installments were paid at the time when the subsequent two documents
were executed for extension of time and even the time was extended at
the instance of defendant No.1 and the balance amount of Rs.16,000/-
was to be paid at the time of execution of the sale deed, it can safely be     F
said that the plaintiff was always ready and willing to perform his part of
the contract under the agreement to sell.
      At this stage, the decision of this Court in the case of Syed
Dastagir (supra) on pleadings as required under Section 16(c) of the
Specific Relief Act on readiness and willingness to perform essential          G
terms of the contract is required to be referred to. In the case before
this Court, the short question raised was, how to construe a plea of
“readiness and willingness to perform” to subserve to the requirement
of Section 16(c) of the Specific Relief Act and the interpretation of its
explanation. In paragraph 9, it is observed and held as under:
                                                                               H
304             SUPREME COURT REPORTS                          [2021] 10 S.C.R.


A           “9. So the whole gamut of the issue raised is, how to construe a
            plea specially with reference to Section 16(c) and what are the
            obligations which the plaintiff has to comply with in reference to
            his plea and whether the plea 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
B
            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 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,
C           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 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
D
            performing his obligations as required under a statute. But to test
            whether he has performed his obligations, one has to see the pith
            and substance of a plea. Where a statute requires any fact to be
            pleaded then that has to be pleaded maybe in any form. The same
            plea may be stated by different persons through different words;
E           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 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
F
            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 exact words of a statute is to insist
            for the form rather than the essence. So the absence of form
G           cannot dissolve an essence if already pleaded.”
             7. Even otherwise it is required to be noted that as such there
      were concurrent findings of fact recorded by the learned Trial Court as
      well as the learned First Appellate Court on readiness and willingness on
      the part of the plaintiff, which were on appreciation of evidence on record.
H     Therefore, in exercise of powers under Section 100 of the CPC the
 SUGHAR SINGH v. HARI SINGH (DEAD) THROUGH LRS. & ORS.                         305
                    [M. R. SHAH, J.]

High Court ought not to have interfered with such findings of fact unless      A
such findings are found to be perverse. Having gone through the findings
recorded by the learned Trial Court as well as the learned First Appellate
Court on readiness and willingness on the part of the plaintiff, we are of
the opinion that findings recorded cannot be said to be perverse and/or
contrary to the evidence on record. On the contrary High Court has
                                                                               B
ignored the necessary aspects on readiness and willingness which are
stated hereinabove including the conduct on the part of the parties.
       8. Even the observations made by the High Court that Forms 47
and 48 of the Appendix A to the CPC provide for making an averment
that the plaintiff has been “and still is ready and willing specifically to
                                                                               C
perform the agreement on his part” or that “the plaintiff is still ready and
willing to pay the purchase money of the said property to the defendant”
and that “there is non-compliance of Section 16(c) of the Specific Relief
Act and the plaint does not even contain any averment that the plaintiff
ever required defendant no.1 to attend the office of the Sub-Registrar to
execute the sale deed within time agreed are too technical in the facts        D
and circumstances of the case. The overall circumstances and the
conduct on the part of the parties are relevant consideration for the
purpose of deciding the aforesaid issues and the prayer of the plaintiff in
whose favour the execution of the agreement to sell has been held to be
proved. The High Court has given unnecessary stress on the word “still”.
                                                                               E
        9. Even while proving the readiness and willingness the plaintiff is
not required to make any averment that the plaintiff required executant
of the agreement to sell to attend the office of the Sub-Registrar to
execute the sale deed within the time agreed. Even as held by this Court
in the case of C.S. Venkatesh Vs A.S.C. Murthy (Dead) By Lrs.
                                                                               F
and Ors. reported in (2020) 3 SCC 280 to adjudge whether the plaintiff
is ready and willing to perform his part of contract, the Court must take
into consideration the conduct of the plaintiff prior and subsequent to
filing of the suit alongwith other attending circumstances in a particular
case. It is also further observed that whether the plaintiff was ready and
was always ready to perform his part of contract may be inferred from          G
the facts and circumstances of a particular case. It is further observed
that it is not necessary for the plaintiff to produce ready money but it is
mandatory on his part to prove that he has means to generate
consideration amount. In the present case even it was not the case on
behalf of the defendants and even there is no finding by the High Court
                                                                               H
306            SUPREME COURT REPORTS                          [2021] 10 S.C.R.


A     that the plaintiff was not having any means to generate consideration
      amount. It is required to be noted that as per the last extension and the
      document executed the balance amount of sale consideration i.e.
      Rs.16,000/- was to be paid at the time of execution of the sale deed and
      earlier out of Rs.56,000/- of total sale consideration, Rs.40,000/- was
      already paid and there were two extensions at the instance of the original
B
      defendant No.1 who was his father-in-law.
              10. Now, so far as the finding recorded by the High Court and the
      observations made by the High court on Section 20 of the Act and the
      observation that even if the agreement is found to be duly executed and
      the plaintiff is found to be ready and willing to perform his part of the
C     Agreement, grant of decree of specific performance is not automatic
      and it is a discretionary relief is concerned, the same cannot be accepted
      and/or approved. In such a case, many a times it would be giving a
      premium to the dishonest conduct on the part of the defendant / executant
      of the agreement to sell. Even the discretion under Section 20 of the Act
D     is required to be exercised judiciously, soundly and reasonably. The
      plaintiff cannot be punished by refusing the relief of specific performance
      despite the fact that the execution of the agreement to sell in his favour
      has been established and proved and that he is found to be always ready
      and willing to perform his part of the contract. Not to grant the decree of
      specific performance despite the execution of the agreement to sell is
E     proved; part sale consideration is proved and the plaintiff is always ready
      and willing to perform his part of the contract would encourage the
      dishonesty. In such a situation, the balance should tilt in favour of the
      plaintiff rather than in favour of the defendant – executant of the
      agreement to sell, while exercising the discretion judiciously.
F            For the aforesaid, even amendment to the Specific Relief Act,
      1963 by which section 10(a) has been inserted, though may not be
      applicable retrospectively but can be a guide on the discretionary relief.
      Now the legislature has also thought it to insert Section 10(a) and now
      the specific performance is no longer a discretionary relief. As such the
G     question whether the said provision would be applicable retrospectively
      or not and/or should be made applicable to all pending proceedings
      including appeals is kept open. However, at the same time, as observed
      hereinabove, the same can be a guide.
            10.1 Even otherwise it is required to be noted that as such on
H     applicability of Section 20 of the Act, no issue was framed either by the
 SUGHAR SINGH v. HARI SINGH (DEAD) THROUGH LRS. & ORS.                         307
                    [M. R. SHAH, J.]

learned Trial Court or by the learned First Appellate Court or even by         A
the High Court. The same has been dealt with by the High Court for the
first time in a Second Appeal under Section 100 of the CPC. Even
otherwise no cogent reasons have been given as to why the decree of
specific performance shall not be passed in favour of the plaintiff.
        11. Now, so far as the submission on behalf of the defendant           B
Nos.2 to 5 that the agreement to sell was executed long back and that
defendant Nos.2 to 5 are in possession of the suit property / land since
many years and if the suit is decreed, in that case, they will have to
vacate the suit land and therefore, the discretion may be exercised in
favour of defendant Nos.2 to 5 while declining the decree of specific
performance in favour of the plaintiff is concerned, the aforesaid cannot      C
be accepted in the facts and circumstances of the case narrated
hereinabove. There are concurrent findings of fact recorded by the Courts
below that the defendant Nos.2 to 5 were in knowledge of the agreement
to sell in favour of the plaintiff; despite the same they purchased the suit
land surreptitiously. Even the sale consideration mentioned in the sale        D
deed in their favour is found to be doubtful. Apart from the same, for all
these years the defendant Nos.2 to 5 cultivated the suit land and enjoyed
the fruits while in possession. On the contrary the balance must tilt in
favour of the plaintiff as plaintiff is deprived of the possession for all
these years because of the long-drawn litigation. The learned trial Court
passed the decree as far as back on 07.02.1987 but because of the              E
appeal before the learned First Appellate Court and thereafter, Second
Appeal before the High Court and thereafter a remand order by the
High Court and again the decision by the learned First Appellate Court
and thereafter by the High court and the proceeding before this Court,
huge time has lapsed, which cannot be to the disadvantage of the plaintiff.    F
       12. In view of the above and for the reasons stated hereinabove,
the impugned judgment and order 09.09.2010 passed by the High Court
in Second Appeal No.836/2010 is unsustainable and same deserves to
be quashed and set aside and is, accordingly, quashed and set aside. The
judgment and decree dated 07.02.1987 passed by the learned Civil Judge,        G
Mathura City, Mathura in Civil Suit No.254 of 1984 is hereby restored
and the suit is decreed and there shall be a decree for specific
performance of the agreement to sell dated 10.10.1976 in favour of the
plaintiff. The defendants – heirs and legal representatives of defendant
No.1 as well as defendant Nos.2 to 5 to execute the sale deed in favour
                                                                               H
308              SUPREME COURT REPORTS                     [2021] 10 S.C.R.


A     of the plaintiff within a period of four weeks from today and hand over
      the peaceful and vacant possession of the suit land to the appellant –
      original plaintiff within a period of four weeks from today.
             Appeal is allowed accordingly. No costs.

B     Devika Gujral                                             Appeal allowed.




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D




E




F




G




H