# Paras Nath & Ors v. Vishwanath

- **Citation:** (2020) 10 ILRA 280
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-08-24
- **Case number:** Second Appeal No. 1711 of 1991
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/paras-nath-ors-v-vishwanath-45195
- **Pages:** 16

## Headnote

Sri Shailendra Kumar, Sri Dharmendra
Kumar Nirankar, Sri R.P. Ram, Sri Ram
Avtar Pandey, Sri Ram Dular Patel, S.M.A.
Abdy, Sri Shailendra Kumar Pandey, Sri
Vinod Kumar Maurya

A. Civil Law - Specific Relief Act,1963 -
Section
16(c)-application-claim
for
specific
performance
of
a
registered
agreement to sell of agricultural landplaintiffs were not ready and willing to
perform their part of the suit agreement,
so as to entitle them to a decree for
10 All. Paras Nath & Ors. Vs. Vishwanath
281
specific performance-all through the trial
they set up a case that of the agreed sale
consideration-later on, after suffering an
adverse judgment in the trial court, the
plaintiffs amended the plaint before lower
Appellate Court, to plead as an alternative
case that they dubbed as a clarification, to
show that they were ready and willingalternative plea, at the appellate stage,
show lack of bona fides on the plaintiffs
part.(Para 1 to 40)

B. The basic principle behind section 16(c)
is that any person seeking benefit of the
specific performance of contract must
manifest that his conduct has been
blemishless throughout entitling him to
the specific relief. The provision imposes a
personal bar. the question as to whether
readiness and willingness has been proved
in a particular case, is ultimately a
question of fact that has to be judged on
the basis of facts, evidence, circumstances
and other surrounding factors.(Para 35 to
41)

The appeal is dismissed. (E-6)

List of Cases Cited:-

## Text

_Characters 0–39,908 of 54,580. This is a partial read: ask again with offset=39908 for what follows._

280 INDIAN LAW REPORTS ALLAHABAD SERIES
dealing with a report submitted by the
police, under s. 173, that no case is made
out for sending up an accused for trial,
which report, as we have already
indicated, is called, in the area in
question, as a 'final report'? Even in
those cases, if the Magistrate agrees with
the said report, he may accept the final
report and close the proceedings. But
there may be instances when the
Magistrate may take the view, on a
consideration of the final report, that the
opinion formed by the police is not based
on a full and complete investigation, in
which
case,
in
our
opinion,
the
Magistrate will have ample jurisdiction
to give directions to the police, under s.
156(3), to make a further investigation.
That is, if the Magistrate feels, after
considering the final report, that the
investigation
is
unsatisfactory,
or
incomplete, or that there is scope for
further investigation, it will be open to
the Magistrate to decline to accept the
final report and direct the police to make
further investigation, under s. 156(3).
The
police,
after
such
further
investigation, may submit a chargesheet, or, again submit a final report,
depending upon the further investigation
made by them. If ultimately, the
Magistrate forms the opinion that the
facts, set out in the final report,
constitute an offence, he can take
cognizance of the offence under Section
190(1)(c), notwithstanding the contrary
opinion of the police, expressed in the
final report.

11. We have no doubt that if the
learned Magistrate go by above position of
law then it will not only provide
expeditious justice to the aggrieved but will
also curtail frivolous petitions for further /
fair investigation before this Court.

12. The Registrar General is directed
to communicate this order to all the
Judgeships, in particular the Sessions
Judge, Prayagraj, the Director, Judicial
Training and Research Institute, Lucknow,
the Director General of Police, U.P.,
Lucknow,
the
I.G.,
Prayagraj
Zone,
Prayagraj,
the
S.S.P,
Prayagraj
for
necessary action forthwith.

13. Put up for compliance / for further
hearing on 13.10.2020.
----------
(2020)10ILR A280
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.08.2020

BEFORE
THE HON'BLE J.J. MUNIR, J.

Second Appeal No. 1711 of 1991

Paras Nath & Ors. ...Appellants
Versus
Vishwanath ...Respondent

Counsel for the Appellants:
Sri V.K. Singh, Sri A.L. Tripathi, Sri Ashok
Kumar Jaiswal, Sri Bhagwan Dutt Pandey,
Sri Dan Bahadur Yadav, Sri N.K. Singh, Sri
Neeraj Shukla, Sri S.K. Singh, Sri Siddharth
Jaiswal, Sri V.K. Singh

Counsel for the Respondents:
Sri Shailendra Kumar, Sri Dharmendra
Kumar Nirankar, Sri R.P. Ram, Sri Ram
Avtar Pandey, Sri Ram Dular Patel, S.M.A.
Abdy, Sri Shailendra Kumar Pandey, Sri
Vinod Kumar Maurya

A. Civil Law - Specific Relief Act,1963 -
Section
16(c)-application-claim
for
specific
performance
of
a
registered
agreement to sell of agricultural landplaintiffs were not ready and willing to
perform their part of the suit agreement,
so as to entitle them to a decree for
10 All. Paras Nath & Ors. Vs. Vishwanath
281
specific performance-all through the trial
they set up a case that of the agreed sale
consideration-later on, after suffering an
adverse judgment in the trial court, the
plaintiffs amended the plaint before lower
Appellate Court, to plead as an alternative
case that they dubbed as a clarification, to
show that they were ready and willingalternative plea, at the appellate stage,
show lack of bona fides on the plaintiffs
part.(Para 1 to 40)

B. The basic principle behind section 16(c)
is that any person seeking benefit of the
specific performance of contract must
manifest that his conduct has been
blemishless throughout entitling him to
the specific relief. The provision imposes a
personal bar. the question as to whether
readiness and willingness has been proved
in a particular case, is ultimately a
question of fact that has to be judged on
the basis of facts, evidence, circumstances
and other surrounding factors.(Para 35 to
41)

The appeal is dismissed. (E-6)

List of Cases Cited:-

1. Man Kaur (Dead) by LRs Vs Hartar Singh
Sangha,(2010) 10 SCC 512

2. Dheeraj Developers Pvt. Ltd. Vs Om Prakash
Gupta & Ors, (2016) 12 SCC 397

3. Pramod Building & Developers Pvt. Ltd. Vs
Shanta Chopra,(2011) 4 SCC 741

4. Aniglase Yohannan Vs Ramlatha & ors,(2005)
7 SCC 534

5. Madhukar Nivrutti Jagtap & ors. Vs Smt.
Pramilabai Chandulal Parandekar & ors., (2019)
SCC Online SC 1026

(Delivered by Hon'ble J.J. Munir, J.)

1. This is a plaintiffs' second appeal
arising from a suit for specific performance
of contract.

2. Original Suit No. 305 of 1987 was
instituted in the Court of the City Munsif,
Jaunpur by Parasnath and Smt. Sitawi against
Vishwanath.
They
claimed
specific
performance of a registered agreement to sell
dated 8th March, 1984, executed in favour of
the two plaintiffs aforesaid by Vishwanath,
the sole defendant. The agreement is about
the covenanted sale of an unpartitioned 1/3rd
share in agricultural land admeasuring a total
of six decimals. The land aforesaid, at the
time of execution of the agreement to sell,
bore Plot No. 851. During consolidation
operations, the plot has been renumbered as
791 with no change to its identity, areas or
boundaries. The land, subject matter of
agreement, is located at Mauja Deepakpur,
Pargana Garhvara, Teshil Machhlishahar,
District Jaunpur. One-third unpartitioned
share in Plot No. 791, last mentioned, subject
matter of agreement to sell dated 08.03.1984
between parties, is hereinafter referred to as
''the suit property'. The suit property shall,
however, be referred to, about its details
mentioned in the plaint, by its full particulars
and boundaries, in schedule ''Aa' and ''Ba'
while setting forth the parties' case. The
original plaintiffs, who are the two appellants
here, died pending appeal. Both the plaintiffappellants, which includes their respective
heirs and legal representatives, shall be
referred to hereinafter as ''the plaintiffs',
except where an individual reference is made
to either of them. Vishwanath, the sole
defendant to the suit is the sole respondent to
this appeal. He shall hereinafter be referred to
as ''the defendant'.

3. The plaintiffs brought this suit with
assertions to the effect that property
detailed in schedule Aa is a joint property
of
the
defendant
and
his
brothers
numbering two, Bahadur and Jangali. The
said property is a bhumidhari of the three
brothers, held jointly in equal share,
282 INDIAN LAW REPORTS ALLAHABAD SERIES
antedating the last Chakbandi. During the
last Chakbandi, it was settled with the
defendant and his two brothers. It is
averred that in the property described in
schedule Aa to the plaint, the defendant
holds a 1/3rd share that works out to two
decimals. The plaintiffs and the defendant
negotiated terms where the plaintiffs settled
with the defendant to purchase the suit
property (1/3rd share in the land described
in schedule Aa) for a sale consideration of
Rs.6000/-. The defendant accepted the
terms. In accordance with the terms settled
between parties, the defendant executed the
suit agreement in favour of the plaintiffs on
08.03.1984, agreeing to convey the suit
property for a total sale consideration of
Rs.6000/- in favour of the plaintiffs. The
defendant received an earnest of Rs.2000/-
at the time of execution of the suit
agreement, leaving a residue of 4000/- that
was agreed between parties to be payable at
the time of execution of the sale deed. The
suit agreement was registered as document
No. 693 in Book No. 1, Volume No. 1187
and recorded at page Nos. 255-256 in the
Office of the Sub Registrar. The suit
agreement carried a covenant that a sale
deed would be executed in favour of the
plaintiffs within a period of three years of
the date of execution of the agreement
under reference.

4. The plaintiffs allege that the
defendant asked them to pay varying sums
of money out of the residue of Rs.4000/-
payable
towards
the
agreed
sale
consideration, at different points of time,
which the plaintiffs paid. These part
payments, according to the plaintiffs,
aggregate to a sum of Rs.2500/-. This sum
of Rs.2500/-, paid by the plaintiffs to the
defendant, stands appropriated towards the
agreed sale consideration which together
with the earnest initially paid, left a residue
of Rs.1500/- to be made good at the time of
execution of the sale deed. It is then
pleaded that in the ensuing Chakbandi, the
property shown in schedule ''Aa' of which
the suit property is a part, has been
renumbered as Plot No. 791 carrying with
it no change in identity, location or
dimensions. The new number assigned to
the plot, of which the suit property is a part,
is 791 admeasuring six decimals. It is
averred that except for the nominal change
of the plot number, the defendant and his
two brothers continue to be bhumidhars of
the plot which constitutes their Chak. This
renumbered plot of the defendant and his
brothers, of which the suit property is a part
with its new number, has been detailed in
schedule ''Ba' to the plaint.

5. It is then averred in the plaint, as
originally framed, that the plaintiffs have
always been ready and willing and are still
ready and willing to perform their part of
the suit agreement, by securing execution
of a sale deed and its registration in terms
of the agreement, last mentioned, upon
payment of the balance sum of Rs.1500/-
due to the defendant. It is also averred that
the remainder four decimals of land
comprising property described in schedule
Aa to the plaint has been purchased by Smt.
Sitawi, plaintiff no. 2 and her son,
Shyambihari through a duly executed sale
deed. The defendant alone retains the suit
property out of the total of six decimals.
The defendant is thus left with two
decimals. The plaintiffs within the period
of three years called upon the defendant,
through a notice dated 21.01.1987 sent by
registered post, to execute a sale deed in
their favour, in accordance with the terms
of the suit agreement. The notice aforesaid
was served upon the defendant but led to
no action on their part; or a reply. The
plaintiffs have also pleaded that being
10 All. Paras Nath & Ors. Vs. Vishwanath
283
cognizant of the defendant's mala fides, the
plaintiffs further caused a notice dated
12.03.1987
to
be
served
upon
the
defendant, through registered post, calling
upon him to execute a sale deed in terms of
the suit agreement within seven days of
receipt. It was indicated that if the demand
in the notice was not complied with, they
would be compelled to bring action. The
notice aforesaid, was served upon the
defendant who chose not to respond or
comply.
The
plaintiffs,
accordingly,
instituted the present suit on 09.04.1987,
claiming a decree for specific performance
of the suit agreement, upon the defendant,
accepting the balance sale consideration of
Rs.1500/-, by executing a sale deed in their
favour conveying the suit property, out of
that described in schedule ''Ba' to the plaint
and to put the plaintiffs in ownership
possession. It has also been prayed that in
the event of default on the defendant's part
to comply with the decree, the decree be
executed through process of Court.

6. It must be remarked here that a
perusal of the relief clause shows that,
coupled with the direction sought requiring
execution of the sale deed by the defendant
in the plaintiffs' favour, there is a specific
prayer asking that the defendant be ordered
to deliver possession of the suit property to
the plaintiffs. A perusal of the description
of the suit property (material part) detailed
in schedule ''Ba' to the plaint reads to the
following effect (translated into English
from Hindi vernacular):

"1. Details of land comprising
schedule ''Ba' situate at Mauja Deepakpur,
Pargana Garhvara, Teshil Machhlishahar,
District Jaunpur:

1/3 part, to wit, -02 decimals
towards East in plot no. 791 admeasuring -
06 decimals

boundaries-
North
field
of
Ramkuber,

South-Pakka Road Balwarganj,
Belwar Road,

East-field of Kailash Narayan
Singh,

West- remainder of the plot in
question"

7. It must also be remarked here that
though in the averments carried in the
plaint, the suit agreement is clearly about a
1/3rd share in the property described in
schedule Aa, the remainder of which is held
by the defendant's brothers, the boundaries
of schedule ''Aa' property are the same
schedule ''Ba'. The boundaries and the
description of the suit property given in
schedule Aa, read to the following effect (
translated
into
English
from
Hindi
vernacular):

"1.
Details
of
property
comprising schedule Aa situate at Mauja
Deepakpur,
Pargana
Garhvara,
Tehsil
Machhalishahar, District Jaunpur:

1/3 part, to wit, two desimals in
Arazi No. 851/6/1 towards East, - 06

according
to
the
boundaries
indicated in schedule Ba above."

8. The defendant filed his written
statement traversing the plaint allegations.
It was pleaded that the going price of the
suit property is about Rs.50,000/-. The
defendant is not a literate man. He can sign
his name with great difficulty. The
defendant was in need of money and asked
the plaintiff to loan him a sum of Rs.2000/-
. The plaintiffs agreed to give him on loan
the required sum of 2000/-, subject to
execution of a document described as a
Makfool (an Arabic word for a security or
mortgage bond). It is pleaded that the
defendant went to the Sub Registrar's office
284 INDIAN LAW REPORTS ALLAHABAD SERIES
at Machhalishahar in order to execute a
security bond and sign the document, that
lateron turned out to be an agreement to
sell. He signed it believing it to be a
security bond. The suit agreement was
registered. It is averred that the suit
agreement was not read out or explained to
the defendant. It was secured through a
conspiracy between the plaintiffs and the
witnesses. The defendant never signed the
suit agreement, understanding it to be an
agreement to sell. The defendant never
received any notice from the plaintiffs. It is
also averred that the defendant was never
paid a further sum of Rs.2500/-, in parts or
installments, by the plaintiffs. The identity of
the suit property which the plaintiffs have
detailed, is absolutely incorrect. The suit
property, as it exists on the spot, is not at all
described in the suit agreement. The suit
agreement, therefore, does not create any
interests in the suit property and does not
attach any obligations to it.

9. It must be remarked here that the
defendant described the document that he
signed as a Makfool in paragraph 11 of his
written statement. The Trial Court in its
judgment, that would be alluded to in due
course, has also described the defendant's
understanding about the character of the
document as a Makfool. The lower Appellate
Court too has described the defendant's claim,
about his understanding of the suit agreement
as a Makfool. There is absolutely no
explanation in either of the two judgments, or
elsewhere, about what a Makfool means. This
Court and the learned Counsel for the parties
were clueless about the word. After
considerable exertions, this Court was able to
find the following meaning of the word
Makfool in the Urdu-Hindi Shabdkosh,
compiled by Mohammad Mustafa Khan
''Maddah'
(Second
Edition,
1972),
published by Hindi Samiti, Hindi Bhawan,
Mahatma
Gandhi
Marg,
Lucknow:
"िक्फूल (word in Urdu script) अ. मव. - रेहि
रखा हुआ, मगरौ, बंधक". This word appears to
be one employed in Old Court Language,
which has survived in use from the Medieval
Era. It is not commonly understood by men
of contemporary education. This Court would
have appreciated if either of the two Courts
below had used a translation of the word, in
Hindi or English, or taken care to explain the
word, once the defendant had used it in his
written statement.

10. The Trial Court on the pleadings
of the parties, struck the following issues
(translated
into
English
from
Hindi
vernacular):

"1.
Whether
the
defendant
covenanted with the plaintiff to sell the suit
property and according to the said covenant
executed the agreement to sell dated
08.03.1984?

2. Whether in peformance of
the agreement to sell dated 08.03.1984,
the defendant received of the plaintiff a
sum of Rs.2500/-on different dates
piecemeal?

3. Whether the plaintiff has been
ready and willing to perform his part of the
suit agreement?

4. Whether the plaintiffs got the
agreement dated 08.03.1984 executed by
the defendant by playing fraud?

5. Whether the suit agreement is
not capable of performance in view of the
assertions in paragraph 19 of the written
statement?

6. Whether the suit is barred by
limitation?

7. Whether the suit is barred by
Section 16 and 20(2) of the Specific Relief
Act?

8. Whether the plaintiffs are
entitled to any relief?"
10 All. Paras Nath & Ors. Vs. Vishwanath
285

11. It appears that on behalf of the
plaintiffs, Parasnath, plaintiff No. 1 entered
the witness box and testified as PW-1,
whereas one Jumman Khan also testified
on behalf of the plaintiffs as PW-2.
Documentary evidence was also led on
behalf of the plaintiffs that comprises the
suit agreement in original, a carbon copy of
the notice dated 21.01.1987, a registered
postal receipt relative to the said notice, a
copy of the notice dated 12.03.1987, a
registered postal receipt related to the last
mentioned notice, an extract of the
Khatauni, a copy of CH Form 41 and an
acknowledgment card of delivery by
registered post (relative to the notice dated
12.03.1987). On the defendant's side,
Vishwanath, the sole defendant entered the
box and testified as DW-1. No other
evidence, oral or documentary, was led on
behalf of the defendant. The Trial Court
decided issues nos. 1 and 4, in favour of the
plaintiff and against the defendant, in the
manner that the execution of the suit
agreement was held proved and the case of
fraud, on the plaintiff's part in securing the
suit agreement, was negated. The second
issue was answered against the plaintiff in
the negative, holding that the plaintiff had
not been able to establish that he paid a
sum of Rs.2500/-, from time to time,
towards the agreed sale consideration. Issue
no. 3 was also decided in the negative,
holding that the plaintiff had not proved
that he was ready and willing, according to
the terms of the suit agreement, to get the
sale deed executed. Issue no. 5 was again
answered in the negative, against the
defendant and in favour of the plaintiff,
holding that renumbering of the plot, of
which the suit property is a part, did not
change its identity at all. It was only a
change in its number, with no other change,
including boundaries. In answer to issue
no. 7 it was held, that plaintiff had not been
able to establish his claim to specific
performance, in accordance with the
Section 16 of the Specific Relief Act. The
provisions of Section 20 of the said Act,
were not attracted. Issue no. 8 was decided
in the manner that the plaintiff was held,
not entitled to the relief of specific
performance. He was, however, left free to
take appropriate proceedings for the
recovery of Rs.2000/- paid as earnest. The
learned City Munsif, Jaunpur who tried this
suit and returned the aforesaid findings,
dismissed the suit with costs by his
judgment and decree dated 23rd May,
1989.

12. The plaintiffs carried an appeal to
the learned District Judge, Jaunpur. The
appeal was lodged on 30.05.1989. It was
admitted to hearing on the said date and by
an interim injunction, the defendant was
restrained
from
transferring
the
suit
property till further orders. The appeal
aforesaid was numbered as Appeal No. 136
of 1989 and assigned for determination to
the
Court
of
the
learned
Special
Judge/Additional District Judge, Jaunpur.
The learned Additional District Judge,
Jaunpur proceeded to hear the appeal,
framing three points for determination, to
wit (translated into English from Hindi
vernacular):

"1.
Whether
the
defendant
entered into the suit agreement dated
08.03.1984 after understanding its terms?

2. Whether the plaintiff has been
ever ready and willing for the performance
of his part of his suit agreement?

3. Whether the suit is barred by
Section 16 (c) of the Specific Relief Act?"

13. Pending appeal before the lower
Appellate Court, the plaintiffs sought
amendment to the plaint, seeking to add a
286 INDIAN LAW REPORTS ALLAHABAD SERIES
case that they claimed was clarificatory of
their stand. This case was to the effect that
though they paid a sum of Rs.2500/-,
piecemeal to the defendant, post execution
of the suit agreement, a fact which the
defendant has not denied in response to the
notice of demand for performance served
upon him by the plaintiffs, but the
defendant was ready and willing and are
still ready and willing to secure execution
of the sale deed in their favour, upon
payment of the balance sale consideration
of Rs.4000/-. This amendment was allowed
by the lower Appellate Court vide order
dated 03.03.1990. An additional written
statement was filed on 22.03.1990. The
plaintiffs entered the witness box, before
the lower Appellate Court, in order to
support the amended plea.

14. The lower Appellate Court
determined the first point in favour of the
plaintiffs, holding that the defendant had
entered into the suit agreement dated
08.03.1984 understanding its terms, and
accepted an earnest of Rs.2000/-. He was
not defrauded, in any manner, about the
character of the document which the
defendant got registered. The second and
the third point for the determination,
however, were both decided against the
plaintiff and in favour of the defendant.
The
lower
Appellate
Court,
in
consequence, ordered the plaintiffs appeal
to be dismissed with costs.

15. Aggrieved, the present appeal has
been filed.

16. This appeal was admitted to
hearing, on a substantial question of law
that was formulated by this Court, adopting
Question
No.
(iii)
framed
in
the
memorandum of appeal. Thus, this appeal
was admitted on the following substantial
question of law:-

"(iii) Whether the findings given
by the Court below about non-readiness
and willingness on the part of the plaintiffs,
can be legally sustained, in the facts and
circumstances of the present case?"

17. This Court, at the time of hearing
the appeal, was of opinion that two further
substantial questions of law were involved,
which ought to be formulated and the
parties heard. Accordingly, on hearing
learned Counsel for the parties, this court
vide order dated 26.02.2020 proceeded to
frame two substantial questions of law, in
addition to the one already formulated,
which read as follows:

"1.
Whether
failure
by
the
plaintiff to establish that he has paid the
claimed sum of money out of the total sale
consideration as accelerated payment, leads
to an inference about his failure as to
readiness and willingness within the
meaning of Section 16(c) Specific Relief
Act?"

2. Whether an amendment to the
plea regarding readiness and willingness
made
at
the
appellate
stage,
notwithstanding the amendment being
granted, can be proved in accordance with
the requirement of Section 16(c) Specific
Relief Act?"

18. This appeal has been heard on all
the three substantial questions of law, that
is to say, the one formulated vide order
dated 01.11.1991 while admitting the
appeal, and the two further substantial
questions,
framed
vide
order
dated
26.02.2020.
10 All. Paras Nath & Ors. Vs. Vishwanath
287

19. Heard Sri B.D. Pandey, learned
Counsel for the plaintiffs and Sri S.M.A.
Abdy, learned Counsel appearing for the
defendant.

20. Sri B.D. Pandey, learned Counsel
for the plaintiffs submits that substantial
question of law no. (iii) ought to be
answered in their favour inasmuch as the
findings of both courts below, about the
plaintiffs failure to establish their readiness
and willingness, are perverse. He has urged
that the finding proceeds on the reasoning
that the plaintiffs having failed to establish
payment of Rs.2500/- post execution of the
suit agreement, their case about readiness
and willingness fails, because the plaintiffs
were not ready and willing to secure
execution on payment of the balance sale
consideration of Rs.4000/-. Rather, they
were ready and willing to pay what they
assert to be their remainder liability: a sum
of
Rs.1500/-
only.
Learned
Counsel
submits that this perspective of the courts
below is inherently flawed. According to
him, it is technical and flimsy, rather than
being wholesome and substantial. It is
urged by Mr. Pandey that the plaintiffs'
case is to be judged on the basis of his
amended pleadings. The amendment that
he sought to the plaint, before the lower
Appellate Court, would relate back to the
institution of the suit. The amendment is
clarificatory in nature and does not
introduce a new or inherently inconsistent
case. Therefore, according to Mr. Pandey,
the amendments to the plaint ought to be
read as an integral part of the plaintiffs'
case. The Courts below, according to
learned Counsel for the plaintiffs, have
committed a manifest error of law in
looking at the amendment as a changed
stand of the plaintiffs from which they have
inferred failure to establish readiness and
willingness.

21. Repelling the submissions of the
learned Counsel for the plaintiffs, Mr.
S.M.A. Abdy, learned Counsel for the
defendant has submitted that both courts
below have concurrently held that the
plaintiffs were not ready and willing to
perform their part of the suit agreement, so
as to entitle them to a decree for specific
performance. He submits that the finding
about the plaintiffs, not being ready and
willing to perform their part of contract
within the meaning of Section 16(c)
Specific Relief Act, betray no such fallacy
of
approach
that
may
vitiate
that
conclusion. According to learned Counsel
for the defendant, the findings on the issue
proceed on a correct perspective of the law,
on the standards whereof evidence has been
evaluated, to draw conclusions that are in
no way perverse. Learned Counsel submits,
therefore, that substantial question of law
no. (iii) does not at all arise.

22. It is also argued that grant of relief
of specific performance is discretionary and
the discretion is to be exercised not
arbitrarily. The court is not bound to grant
specific performance, merely because it is
lawful to do so. In this case, according to
learned Counsel for the defendant, the
Courts below have rightly exercised that
discretion.

23. It is urged that failure of the
plaintiffs
to
establish
readiness
and
willingness, is evident from the fact that all
through the trial they set up a case that of
the agreed sale consideration of Rs.6000/-,
he paid Rs.2000/- at the time of execution
of the suit agreement and Rs.2500/- post
execution,
piecemeal.
Lateron,
after
suffering an adverse judgment in the Trial
Court, the plaintiffs amended the plaint
before the lower Appellate Court, to plead
as an alternative case that they dubbed as a
288 INDIAN LAW REPORTS ALLAHABAD SERIES
clarification, to show that they were always
ready and willing and are still ready and
willing to pay the entire balance sale
consideration in the sum of Rs.4000/-. This,
the learned Counsel for the defendant says,
introduces a contradiction in the plaintiffs'
stand, rather than clarifying it. It does not
show the plaintiffs bona fides which are
essential to be proved in order to entitle the
plaintiffs
to
a
decree
for
specific
performance.

24. In support of his contention,
learned Counsel for the defendant has
placed reliance upon the decision of the
Supreme Court in Man Kaur (Dead) by
LRs vs. Hartar Singh Sangha, (2010) 10
SCC 512. He has drawn the attention of the
Court to paragraph 23 of the report, where
it is held:

"23. The respondent next relied
upon the following observations of this
Court in Aniglase Yohannan v. Ramlatha
[(2005) 7 SCC 534] : (SCC p. 540, para 12)

"12. The basic principle behind
Section 16(c) read with Explanation (ii) is
that any person seeking benefit of the
specific performance of contract must
manifest that his conduct has been
blemishless throughout entitling him to the
specific relief. The provision imposes a
personal bar. The court is to grant relief on
the basis of the conduct of the person
seeking relief. If the pleadings manifest that
the conduct of the plaintiff entitles him to
get the relief on perusal of the plaint he
should not be denied the relief."

This Court further held that the
averments
relating
to
readiness
and
willingness are not a mathematical formula
which should be expressed in specific
words and if the averments in the plaint as
a whole, do clearly indicate the readiness
and willingness of the plaintiff to fulfil his
part of the obligations under the contract,
the fact that the wording was different, will
not militate against the readiness and
willingness of the plaintiff. The above
observations
cannot
be
construed
as
requiring only a pleading in regard to
readiness and willingness and not "proof"
relating to readiness and willingness. In
fact, in the very next para, this Court
clarified that Section 16(c) of the Act
mandates the plaintiff to aver in the plaint
and establish the fact by evidence aliunde
that he has always been ready and willing
to perform his part of the contract.
Therefore, the decision merely reiterates
the need for both pleadings and proof in
regard to readiness and willingness of the
plaintiff."

25. Learned Counsel for the defendant
has further placed reliance on the decision
of
the
Supreme
Court
in
Dheeraj
Developers Private Limited vs. Om
Prakash Gupta and others, (2016) 12
SCC 397. He has drawn support from the
following remarks of their Lordships of the
Supreme Court in Dheeraj Developers
Private Limited (supra):

"4. We have referred to the
factual matrix only to a very limited extent
for the reason that the High Court
apparently has gone wrong in decreeing the
suit only on the basis of the finding on
genuineness of Ext. P-1 document. It
should have been borne in mind that the
suit was for specific performance and
obviously there were also several other
aspects of the matter including the aspect of
readiness and willingness which required
consideration by the High Court."

26. This Court has considered the
submissions advanced by learned Counsel
and perused the record. The question, about
10 All. Paras Nath & Ors. Vs. Vishwanath
289
readiness and willingness of the plaintiffs
to perform their part of the contract, is a
sine qua non for the Court to grant specific
performance. The proposition is too well
settled to brook doubt that specific
performance is not to be granted, merely
because it is lawful to do so. This principle
of law has developed in the face of a
presumption engrafted in explanation (i),
appended to Section 10 of the Specific
Relief Act, 1963 (as it stood prior to
amendment by Act 18 of 2018, which
governs this suit). Section 10 of Specific
Relief Act (supra), is quoted in extenso:

"10. Cases in which specific
performance of contract enforceable.--
Except as otherwise provided in this
Chapter, the specific performance of any
contract may, in the discretion of the court,
be enforced--

(a) when there exists no standard for
ascertaining the actual damage caused by the
non performance of the act agreed to be done;
or

(b) when the act agreed to be done is
such that compensation in money for its nonperformance would not afford adequate relief.

Explanation.--Unless and until the
contrary is proved, the court shall presume--

(i) that the breach of a contract to
transfer
immovable
property
cannot
be
adequately relieved by compensation in money;
and

(ii) that the breach of a contract to
transfer moveable property can be so relieved
except in the following cases--

(a) where the property is not an
ordinary article of commerce, or is of special
value or interest to the plaintiff, or consists of
goods which are not easily obtainable in the
market;

(b) where the property is held by
the defendant as the agent or trustee of the
plaintiff."

27. The principle that holds that
specific performance cannot be granted
merely because it is lawful to do so, is
largely built on the edifice of Section 16 (c)
and the explanation (i) appended to Section
10 of the Specific Relief Act. Section 16(c)
is extracted infra:

"16. Personal bars to relief.-

(a) x x

(b) x x

(c) [who fails to prove] that he
has performed or has always been 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 waived by
the defendant.

Explanation.- For the purposes of
clause (c),-

(i) where a contract involves the
payment of money, it is not essential for the
plaintiff to actually tender to the defendant
or to deposit in court any money except
when so directed by the court;

(ii) the plaintiff [must prove] aver
performance
of,
or
readiness
and
willingness
to
perform,
the
contract
according to its true construction.

28. The principle engrafted in Section
16(c) has been introduced in the statute as a
personal bar to relief. This implies that the
bar to relief envisaged under Section 16(c),
is something extraneous to the contract and
personal to the parties. It is not a bar arising
from the terms of the contract per se but
about the manner in which the parties act
and conduct themselves, in reference to the
contract.
This
statutory
feature,
that
governs
the
remedy
of
specific
performance, has its origins in equity that
was administered at one point of time in
England as a separate branch of the legal
system with all its Courts and principles
290 INDIAN LAW REPORTS ALLAHABAD SERIES
different from the common law and the
Courts where the latter was administered.
Since long, the distinction between law and
equity has ceased to exist in England, and
so far as our country is concerned,
principles, both of common law and equity,
are all expressed through statutes enacted
by the competent legislature. Nevertheless,
like many other telltale watershed, the
principles developed in the old equity
jurisdiction in England, can be seen
peeping behind principles of law, all
enmeshed in the same statute. The
principles in Section 16(c), or for that
matter the remedy of specific performance,
have all to be understood as products of the
old equity jurisdiction.

29. What the learned Counsel for the
plaintiffs here desires to say is that it was
their case that out of the agreed total sale
consideration minus the earnest of Rs.2000/-,
they have paid an additional sum of
Rs.2500/- piecemeal. However, implicit in
his pleading was his stand that if that case of
his be not accepted, he was and is still ready
and willing to perform his part of the contract
by paying to the defendant the balance sale
consideration of Rs.4000/-. He further urges,
that in the pleadings initially framed, this
implicit stand of the plaintiff was not all that
vivid. Therefore, he applied to make it
explicit, by introducing it in the plaint
through amendment, before the lower
Appellate Court. The amendment was
granted. The amendment would relate back to
the time when he filed his suit. He has also
supported the amended plea, by entering the
witness box before lower Appellate Court
and proving his case regarding readiness and
willingness, with reference to the balance sale
consideration of Rs.4000/-.

30. Readiness and willingness are no
words of art. Both carry different and well
acknowledged
connotations.
Whereas
''readiness' implies the financial capacity to
discharge
one's
part
of
the
contract,
''willingness' refers to the psychological or
mental inclination, to go ahead with the
contract. Now, the plaintiffs took a clear
stand in the plaint, as originally framed, that
the total sale consideration was Rs.6000/-. Of
this agreed sale consideration, they paid the
defendant earnest in the sum of Rs.2000/- at
the time of execution and registration of the
suit agreement. They further paid a sum of
Rs.2500/-,
piecemeal,
prior
to
commencement of action. There is not the
slightest plea in the plaint expressing a case
that if the sum of Rs.2500/- claimed to be
paid by the defendant be not held proved,
they were and still are ready and willing to
pay the balance sale consideration of
Rs.4000/- in performance of their part of the
contract. If the said plea had been there in the
plaint as an alternate plea, it would clearly
indicate the bona fides of the plaintiffs about
their readiness and willingness. Not only the
plaint, the testimony in the dock does not
remotely indicate their mind about the
alternative
above
indicated.
In
his
examination-in-chief dated 30.05.1989, PW1, Parasnath has stated:

"िोयदा के बाद मवश्विाथ को हि
लोगो िे २५००/- दो मकस्तों िें अदा भी
मकया । अब िहज मवश्विाथ को १५००/-
देिा बाकी है मजसको िैं देिे को तैयार हूँ"

31. All through the trial and until
judgment, there was not as much as a hint
in the plaintiffs' case that they had any time
contemplated performing their part of the
contract, in any other manner, but by
paying the defendant a sum of Rs.1500/-.
The plaintiffs, until judgment by the Trial
Court never made allowance for the
contingency that there claim about further
10 All. Paras Nath & Ors. Vs. Vishwanath
291
payment of a sum of Rs.2500/-, post
execution of the suit agreement and prior to
commencement of action, might not be
proved.
They
had
in
their
firm
contemplation always, that the part of the
contract left to be performed by them was
payment of a sum of Rs.1500/-, and may
be, their liability towards expenses of
execution and registration, whatever it
might have entailed. They never had in
mind, that in any contingency they were
ready and willing to perform their part of
the contract that involved payment of the
balance of Rs.4000/- to the defendant.
Now, this Court may also remark that the
plaintiffs believed that their claim about the
further payment of a sum of Rs.2500/- was
iron cast and all that they need pay the
defendant was a sum of Rs.1500/-. The
plaintiffs,
therefore,
harbored
and
proceeded on the belief that all that they
had to do, to perform the substantial part of
their contract, was to pay the defendant a
sum of Rs.1500/-.

32. This Court must also remark that
the belief was based on very flimsy ground.
It was not a reasonable belief, looking to
the fact that the plaintiffs had no written
acknowledgment or receipt to prove that
they had paid the defendant a sum of
Rs.2500/-, piecemeal. Both the Courts
below did not accept if for a fact, in the
absence of any evidence produced by the
plaintiffs to prove, that they had paid the
defendant a sum of Rs 2500/- from time to
time. Once the plaintiffs found that their
claim had been negatived by the Trial
Court, about payment of the further sum of
Rs.2500/-, they introduced, through a very
clever
amendment,
a
case
that
notwithstanding their claim about the
further payment of Rs.2500/- they were
ever ready and willing to perform their part
of the contract by paying the balance of
Rs.4000/-.
They
introduced
the
said
amendment,
persuading
the
lower
Appellate Court to accept it, as a
clarificatory piece of pleading. In the clear
opinion of this Court, the pleading was not
at all clarificatory; that is what the the
lower Appellate Court has also determined,
at the hearing of the appeal. It was clearly a
plea that was inherently compatible with
the plaintiffs' case originally pleaded and
on the basis of which, the trial went
through.