# Ram Deo v. Paras Nath Singh & Ors

- **Citation:** (2023) 7 ILRA 1124
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-14
- **Case number:** Second Appeal No. 416 of 1986
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-deo-v-paras-nath-singh-ors-50500
- **Pages:** 14

## Headnote

Abid Ali, Atiya Abid, Indra Pratap Singh. M.
Khalid, Mohammad Abid Ali, Mohd, Ali,
Sarita
Verma,
Satya
Prakash,
Sudhir
Srivastava

Civil Law-The Code of Civil Procedure,
1908 - Section 100 - The Specific Relief
Act, 1963-Sections 16(c), 19 & 20 ---
Second appeal assailing a judgment of reversal
passed by the lower appellate Court---Though
the plaintiff had St.d in the plaint that he was
ready and willing to perform his part of the
contract but unfortunately there is no averment
in
the
examination-in-chief
regarding
the
plaintiff being ready and willing to perform his
part of the contract. There is no averment in the
plaint and in the evidence that the plaintiff had
the requisite funds or that he had offered the
same to the defendant who refused it. There is
no details regarding the date or any other such
particular to substantiate that he had requested
the defendant to accept the balance sale
consideration and execute the sale deed or to
obtain the permission. There has been no
averment regarding any overt act done by the
plaintiff
to
suggest
his
readiness
and
willingness---Defendants
were
bona
fide
purchasers for valuable consideration without
notice---wherein the issue of escalation in the
prices of property and balancing the equities
between the parties has been considered and
noticing that 40 years have lapsed and the
prices of the property have escalated and the
value of money on account of inflation has also
been
affected
severely---Defendants
shall
refund a sum of Rs. 3 lacs to the plaintiff-
7 All. Ram Deo Vs. Paras Nath Singh & Ors.
1125
appellant within a period of 60 days from today.
(Para 25, 33 & 37)

Appeal dismissed. (E-15)

List of Cases cited:

## Text

_Characters 0–39,828 of 49,155. This is a partial read: ask again with offset=39828 for what follows._

1124 INDIAN LAW REPORTS ALLAHABAD SERIES
as
the
court
is
willing
to
bestow
consideration on the merits of the appeal.

7. डवद्वान अपर शासकीय अडधवक्ता के तकों के पररप्रेक्ष्य
में पत्रावली पर उपलब्ध साक्ष्यों के आधार पर आवेदन को िमानत
पर मुक्त डकए िाने का कोई औडचत्य नहीं है तथा यह िमानत
आवेदन पत्र डनरस्त डकए िाने योग्य है।

8. सावगिडनक शांडत और समाि की भलाई सुडनडित करने
के डलए, ऐसे सिा पाए अपराधी िो अपहरणकताग, िघन्य व
अभ्यस्त अपराधी हो, नरसंहार से संबंडधत अपराधों में आदतन
अपराधी हो। यह मामला डनडित रूप से िमानत देने के योग्य उडचत
नहीं है एवं उपरोक्त तथ्यों के दृडष्टर्त वाद के र्ुण-दोष पर डबना कोई
डटप्पणी डकए हुए, आवेदक का िमानत आवेदन पत्र डनरस्त डकया
िाता है।

9. इस स्तर पर आवेदक के डवद्वान अडधवक्ता ने पुनः
अनुरोध डकया डक अाावदेक डवर्त 14 वषग 8 माह से कारार्ार में
डनरूद्ध है, इसडलए अवर न्यायालय को डनदेश कर डदया िाये डक इस
वाद से संबंडधत सत्र परीक्षण का डनस्तारण शीघ्रता के आधार पर
करना सुडनडित डकया िाय।

10. उनके अनुरोध को देिते हुए संबंडधत अवर न्यायालय
को यह डनदेडशत डकया िाता है डक इस वाद से संबंडधत सत्र परीक्षण
का डनस्तारण डदन-प्रडत-डदन की सुनवाई करने के आधार पर डबना
डकसी अनाश्यक स्थर्न के शीघ्रता के आधार पर करना सुडनडित
डकया िाय तथा न्यायालय डनयमानुसार र्वाहों की उपडस्थत
सुडनडित करने के डलए र्वाहों के डवरूद्ध आवश्यक प्रपी़िक
कायगवाही अमल में ला सकती है तथा डवद्वान अपर शासकीय
अडधवक्ता ने कथन डकया है डक अडभयुक्त एवं अन्य सहअडभयुक्तर्ण
के भय एवं आंतक से अडभयोिन साक्षीर्ण अवर न्यायालय में
बयान देने हेतु उपडस्थत नहीं हो रहे है।

11. इसडलए संबंडधत अवर न्यायालय को भी डनदेडशत
डकया िाता है डक संबंडधत वररष्ठ पुडलस अधीक्षक/पुडलस अधीक्षक
को मामले के साक्षीर्ण की सुरक्षा हेतु पत्र प्रस्तुत करके उनको पयागप्त
सुरक्षा-व्यवस्था मुहैया करवाया िाय तथा साक्षीर्ण को न्यायालय में
पुडलस सुरक्षा में लाया िाय एवं उनके बयान समुडचत वीडडयोग्राफी
के साथ अंडकत कराये िाय।
----------
(2023) 7 ILRA 1124
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.07.2023

BEFORE

THE HON'BLE JASPREET SINGH, J.

Second Appeal No. 416 of 1986

Ram Deo ...Appellant
Versus
Paras Nath Singh & Ors. ...Respondents

Counsel for the Appellant:
R.C.
Bajpai,
Amit
Kukherjee,
Amit
Mukherjee, D.C. Mukherjee, H.S. Sahai,
Mukesh Kumar Sharma

Counsel for the Respondents:
Abid Ali, Atiya Abid, Indra Pratap Singh. M.
Khalid, Mohammad Abid Ali, Mohd, Ali,
Sarita
Verma,
Satya
Prakash,
Sudhir
Srivastava

Civil Law-The Code of Civil Procedure,
1908 - Section 100 - The Specific Relief
Act, 1963-Sections 16(c), 19 & 20 ---
Second appeal assailing a judgment of reversal
passed by the lower appellate Court---Though
the plaintiff had St.d in the plaint that he was
ready and willing to perform his part of the
contract but unfortunately there is no averment
in
the
examination-in-chief
regarding
the
plaintiff being ready and willing to perform his
part of the contract. There is no averment in the
plaint and in the evidence that the plaintiff had
the requisite funds or that he had offered the
same to the defendant who refused it. There is
no details regarding the date or any other such
particular to substantiate that he had requested
the defendant to accept the balance sale
consideration and execute the sale deed or to
obtain the permission. There has been no
averment regarding any overt act done by the
plaintiff
to
suggest
his
readiness
and
willingness---Defendants
were
bona
fide
purchasers for valuable consideration without
notice---wherein the issue of escalation in the
prices of property and balancing the equities
between the parties has been considered and
noticing that 40 years have lapsed and the
prices of the property have escalated and the
value of money on account of inflation has also
been
affected
severely---Defendants
shall
refund a sum of Rs. 3 lacs to the plaintiff-
7 All. Ram Deo Vs. Paras Nath Singh & Ors.
1125
appellant within a period of 60 days from today.
(Para 25, 33 & 37)

Appeal dismissed. (E-15)

List of Cases cited:

1. Arjun Prasad & ors. Vs Ganesh Prasad & ors.
2023:AHC-LKO:43190:
2023
SCC
Online
Allahabad 364

2. Ramzan Ali & anr.Vs Altafur Rahman
2023:AHC-LKO:30146

3. Ritu Saxena Vs J.S. Grover & anr.(2019) 9
SCC 132

4. K. Prakash Vs B.R. Sampath Kumar, (2015) 1
SCC 597

5. Zarina Siddiqui Vs A. Ramalingam (2015) 1
SCC 705

6. U.N. Krishnamurthy Vs A.M. Krishnamurthy,
2022 SCC Online SC 840

(Delivered by Hon'ble Jaspreet Singh, J.)

1. This is the plaintiff's second appeal
assailing a judgment of reversal passed by
the lower appellate Court in Civil Appeal
No. 39 of 1982 dated 28.04.1986 whereby
the suit bearing R.S. No. 167 of 1980 for
specific performance of contract of the
plaintiff, which was decreed by the trial
Court by means of judgment and decree
dated 23.12.1981 was set aside and
dismissed by the lower appellate Court.

2. The instant second appeal was
admitted by the Court on 15.07.1986 and
on the application for interim relief moved
by the plaintiff-appellant, it was provided
that in case, if the plaintiff is in possession,
it shall not be disturbed in execution of the
decree. During pendency of the instant
second appeal, the original plaintiff,
namely, Ram Dev and the defendantsrespondents Paras Nath and Raj Karan
Verma expired and the legal heirs have
been brought on record.

3. The Court has heard Shri Mukesh
Sharma, learned counsel for the appellant
and Ms. Atiya Abid, learned counsel for the
respondents.

4. Before adverting to the substantial
questions of law, it will be appropriate to
take a glance at the facts giving rise to the
instant appeal.

5. Shri Ram Dev, the original plaintiff
instituted a suit for specific performance of
contract registered as regular suit No.167 of
1980 pleading that Shri Raj Karan Singh,
father of Paras Nath Singh had executed a
registered agreement to sell in favour of the
plaintiff on 29.11.1979 in respect of the
property in question which was morefully
described in the agreement as situate on
Chak No.232 measuring 1 bigha, 6 biswa
and 15 dhur situate in Mauja Asharafpur
Barwa,
Pargana-
Minjhaura,
Tehsil-
Akbarpur, District- Faizabad (now District
Ambedkar Nagar).

6. In pursuance of the aforesaid
agreement to sell, the plaintiff had paid a
sum of Rs.2,000/- as earnest money and a
sum of Rs. 1,600/- was agreed to be paid at
the time of the execution of the sale deed. It
was also agreed that the defendant Raj
Karan Singh would seek the permission for
executing the sale deed as the consolidation
operations were in progress in the village
and thereafter, the sale deed would be
executed. It was also pleaded that the
plaintiff had requested Raj Karan Singh to
seek the permission, however, he delayed
and evaded the same. However, it is also
pleaded that in April, 1980, the plaintiff
came to know that Raj Karan Singh had
received the permission and then again he
1126 INDIAN LAW REPORTS ALLAHABAD SERIES
was requested to execute the sale deed.
This was again ignored, consequently, the
plaintiff sent a notice on 28.04.1980 to
execute the sale deed and that the plaintiff
is ready and willing to pay remaining sum
of Rs.1,600/-, however, the defendant did
not reply to the said notice and later on
13.05.1980, the plaintiff became aware that
Raj Karan Singh has already executed a
sale deed in favour of defendants No.2 and
3, namely, Raj Karan Verma And Ram
Charan Verma. It is in the aforesaid
backdrop that the plaintiff instituted the suit
of specific performance of contract also
pleading that the defendants No.2 and 3
may be directed to join the said sale deed to
convey the proper title to the plaintiff.

7. The defendants No.2 and 3 filed their
joint written statement and denied the
averments of the plaint. It set up the case that
the original vendor, namely, Raj Karan Singh
had already entered into an agreement with
the defendants No.2 and 3 on 10.01.1975 for
a total sale consideration of Rs.10,000/- out
of which Rs.8,000/- was paid and Rs.2,000/-
was to be paid at the time of execution of the
sale deed. It is in view thereof that the
defendant No.1 had taken the permission and
executed the sale deed in favour of the
defendants No. 2 and 3 on 28.03.1980 and as
such the defendants No.2 and 3 are bona fide
purchasers
for
valuable
consideration,
without notice of the agreement and their
rights could not be defeated at the behest of
the plaintiff on the basis of his agreement.

8. Upon exchange of the pleadings, the
trial Court framed seven issues, however, the
relevant issues upon which suit came to be
contested were:-

(i) Whether the defendant No.1
had executed any agreement on 29.11.1979
in favour of the plaintiff?

(ii) Whether the defendant No.1
had executed any agreement in favour of
the defendants No.2 and 3 as stated by the
defendants in their written statement?

(iii) Whether the defendants No.2
and 3 are bona fide purchasers for
valuable consideration without notice?

(iv) Whether the defendant No.1
had executed the sale deed in favour of the
defendants No.2 and 3 in pursuance of the
agreement dated 10.01.1975 and if so, its
effect?

9. The trial Court considered the issue
regarding the agreement dated 29.11.1979
in favour of the plaintiff and the alleged
agreement dated 10.01.1975 which was
unregistered
and
in
favour
of
the
defendants No.2 and 3 was held to be
fraudulent. Thereafter, the trial Court
considered the issue regarding the fact as to
whether the defendants No.2 and 3 were
bona
fide
purchasers
for
valuable
consideration without notice and held that
in view of the statement given by the P.W.-
2 that he had spoken to the defendant No.2
that he was going to witness the agreement
being executed by the defendant No.1 and
the plaintiff. This indicated that the
defendants No.2 and 3 had knowledge of
the agreement, hence, they were not bona
fide purchasers for valuable consideration,
without notice and consequently, by means
of judgment and decree dated 23.12.1981,
the suit for specific performance was
decreed in favour of the plaintiff.

10. The defendants No.2 and 3
preferred a regular civil appeal under
Section 96 C.P.C. and the appellate Court
reversed the findings and dismissed the suit
on the ground that the plaintiff had failed to
prove that they were ready and willing to
perform their part of contract and this being
a essential condition, hence, without the
7 All. Ram Deo Vs. Paras Nath Singh & Ors.
1127
same being proved, the suit could not have
been decreed. The lower appellate Court
also reversed another finding and held that
the evidence of P.W.-2 was not clear to
suggest that the defendants No.2 and 3
were not bona fide purchasers for valuable
consideration without notice and with the
aforesaid two findings being reversed, the
judgment and decree passed by the trial
Court was set aside and consequently, the
suit was dismissed.

11. In the instant second appeal the
questions of law, which have been urged by
the learned counsel for the appellant upon
which the appeal was admitted, are:-

(i) Whether the plaintiff-appellant
was ready and willing to perform their part
of contract and that the lower appellate
Court was not justified in reversing the said
finding by carving out a new case
especially
when
no
issue
regarding
readiness and willingness was framed by
the trial Court.

(ii) Whether the lower appellate
Court has erred in misreading the evidence
of P.W.-1 and P.W.-2 in coming to the
conclusion that the defendants No. 2 and 3
were bona fide purchasers for valuable
consideration without notice and thus, the
suit has been wrongly dismissed by the
lower appellate Court?

12. Shri Mukesh Sharma, learned
counsel for the appellant has vehemently
argued that the plaintiff had instituted the
suit for specific performance of contract in
respect of a registered agreement to sell
dated 29.11.1979 in pursuance whereof
Rs.2,000/- had already been paid as earnest
money and Rs. 1,600/- was to be paid at the
time of execution of the sale deed. It was
the duty of the defendant No.1 to seek
permission as the consolidation operations
were going on in the village. It was pleaded
in the plaint that the plaintiff had requested
the defendant No.1 to seek the permission
and all necessary help, which may be
required from the plaintiff, he was ready to
cooperate, however, the defendant No.1
evaded to obtain the permission.

13. It is further urged that even in the
plaint specifically it was averred that the
plaintiff was ready and willing to perform
his part of contract and it was actually the
defendant No.1, who had violated and
breached the terms of the agreement. There
is no denial of the fact by the original
vendor that the plaintiff was not ready and
willing to perform his part of contract,
moreover, the defendant No.1 did not
appear before the Court at all and in this
view of the fact, the averments made by the
plaintiff
remain
uncontroverted.
The
conduct of plaintiff was unblemished and
as such as soon as he became aware in the
month of April that the defendant No.1 has
obtained the permission, he had issued a
notice to the defendant on 28.04.1980,
which was not complied with and though,
the defendant No.1 in breach of the terms
and conditions of the agreement to sell in
favour of the plaintiff executed a sale deed
in favour of defendants No.2 and 3 and
soon thereafter, the plaintiff filed a suit for
specific performance of contract. This all
indicates that the plaintiff was ready and
willing to perform his part of contract and
there was no lethargy on the part of the
plaintiff which could be seen as an
impediment for the grant of the decree for
specific performance of contract dated
29.11.1979.

14. The learned counsel for the
appellant has further urged that the trial
Court had returned a finding that the
alleged agreement set up by the defendants
1128 INDIAN LAW REPORTS ALLAHABAD SERIES
No.2 and 3 was found to be forged and as
such categorical averment as well as
evidence of the P.W.-2 clearly reflected
that the defendants No.2 and 3 were aware
of the registered agreement in favour of the
plaintiff. Hence, they were not bona fide
purchasers
for
valuable
consideration,
without notice and in the given facts and
circumstances, the suit was rightly decreed
by the trial Court, but the lower appellate
Court has reversed the finding on the issue
of readiness and willingness, which was not
even in controversy as no issue was framed
by the trial Court in this regard. Even
otherwise, the lower appellate Court has
taken a technical view as the issue of
readiness and willingness is not to be
construed in a strait jacket formula and has
to be ascertained in light of the averments
in
the
plaint
and
the
surrounding
circumstance and evidence which has not
been done resulting in the findings being
vitiated.

15. The learned counsel for the
appellant has further urged that it was the
burden on the defendants No.2 and 3 to
establish
that
they
were
bona
fide
purchasers
for
valuable
consideration
without
notice,
however,
the
lower
appellate Court has failed to appreciate that
this burden could not have been shifted on
the plaintiff and by doing so, it has
completely given an incorrect complexion
to the entire litigation and the defendants
No.2 and 3, in any case, could not establish
that they were bona fide purchasers for
valuable consideration without notice and
therefore, the findings returned by the
lower appellate Court are not sustainable in
law and as such the said judgment deserves
to be set aside.

16. Lastly, it has been stated that the
plaintiff has been in possession of the
disputed property since the date of
execution of the agreement, accordingly, in
the
aforesaid
circumstances
as
the
possession of the plaintiff was protected by
the interim order granted by this Court and
about 40 years have gone by in the
aforesaid circumstances, the discretion also
must be exercised in favour of the appellant
who is still ready and willing to perform his
part of contract and consequently, the
appeal deserves to be allowed.

In support of his submissions, the
learned counsel for the appellant has relied
upon the decisions of the Apex Court in
'Aniglase Yohannan vs. Ramlatha and
others
(2005)
7
SCC
534;
R.K.
Mohammed Ubaidullah and others vs.
Hajee C. Abdul Wahab (D) by Lrs. and
others (2000) 6 SCC 402; Sargunam
(dead) by Lr. vs. Chidambaram and
another (2005) 1 SCC 162; Dattu
Sakharam Khairnar @ Sutar vs. Punja
Laxman Shinde, 1997 lawsuit (Bombay)
95; Sathy vs. Sayed Mohamed Ali
Usmanali, 1997 lawsuit (KER) 279;
Salamatullah & another vs. Charittar
Doeri, 2017 (9) ADJ 37; Ram Yagga vs.
Ram Niwaz 2021 (39) LCD 1512'.

17. Ms. Atiya Abid, learned counsel
appearing for the respondents combating
the aforesaid submissions has urged that
the entire contention of the counsel for the
appellant is misfounded. It is urged that in a
suit for specific performance of contract, it
is a duty cast upon the plaintiff not only to
aver the readiness and willingness as
required in terms of Section 16 (c) of the
Specific Relief Act, but the same also has
to be proved by cogent evidence and not
only it must be present and proved at the
time of institution of the suit, but this
readiness and willingness must continue
throughout the proceedings in the Court. In
7 All. Ram Deo Vs. Paras Nath Singh & Ors.
1129
support of her submission she has relied
upon a decision of this Court in Hari Om
and others vs. Shri Gopal 1997 (15) LCD
351. It is submitted that even if at all, the
issue has not been framed yet, the fact
remains that this was the duty of the
plaintiff to have averred and proved this
fact, without which, he was not entitled to
any decree of specific performance. The
plaintiff by making a bald averment in the
plaint but not substantiating the same by
proof already missed the boat and was not
entitled
to
the
decree
of
specific
performance, however, this aspect was not
considered by the trial Court. The lower
appellate Court took note of this fact and
finding that the plaintiff was not able to
prove his readiness and willingness, rightly
reversed the decree of the trial court which
cannot be faulted.

18.

Learned
Counsel
for
the
respondents has further urged that the
defendant No.1 had already executed an
unregistered agreement in the year 1975 in
terms whereof he had accepted a sum of
Rs.8,000/- as earnest money and a sum of
Rs.2,000/- was to be paid at the time of the
execution of the sale deed after the defendant
No.1 had obtained the permission. Since the
permission had been obtained in April,
accordingly, the defendant No.1 executed the
sale deed in favour of the defendants No.2
and 3 in pursuance of the agreement to sell
and therefore, there was no requirement for
the defendants No.2 and 3 to establish that
they were bona fide purchasers of valuable
consideration without notice as the sale deed
was in pursuance of an earlier agreement of
1975 and the plaintiff is claiming on the basis
of a subsequent agreement.

19. It is further submitted that even
otherwise, if the statements of the P.W.-1
and P.W.-2 are seen, then it cannot be said
that there was any averment which could
construe notice to the defendants No.2 and
3 regarding the registered agreement to sell
of the plaintiff dated 29.11.1979. It is urged
that there is a difference between the word
"knowledge" and "notice". The word
"notice" has a wider implication and unless
and until it was shown that the defendant
had notice of the agreement, it cannot be
said that the defendant had committed any
error in getting the sale deed executed. In
support of her submission regarding the
issue of notice and knowledge, she has
relied upon a decision of the Apex Court in
case of Ram Niwas (dead) through LRS.
vs. Bano (Smt) and others (2000) 6 SCC
685.

20. Lastly, it has been urged that the
plaintiff has not been in possession of the
property in question nor there was any
evidence to the aforesaid fact, hence, to
state that the plaintiff has been in
possession for last 40 years is incorrect. It
is also urged that the findings returned by
the lower appellate Court are based on
proper
appreciation
of
evidence.
Accordingly, the findings of fact are not
liable to be distributed in exercise of
powers
under
Section
100
C.P.C.
Consequently, the appeal deserves to fail.

21. The Court has considered the rival
submissions and also perused the material
on record.

22. The first issue which arises for
consideration is regarding the readiness and
willingness of the plaintiff and its nuances
in a suit for specific performance of
contract. The primary submission of the
learned counsel for the appellant is that the
plaintiff had averred in his plaint that he
was ready and willing to perform his part
of the contract and even in the evidence, it
1130 INDIAN LAW REPORTS ALLAHABAD SERIES
was stated that the plaintiff had issued a
notice and as soon as he became aware that
the defendant No.1 had executed a sale
deed in favour of the defendants No.2 and
3, he promptly filed the suit for specific
performance, all this indicates his readiness
and willingness and that in absence of an
issue, the lower appellate Court had erred
in reversing the decree for the aforesaid
point.

23. If the aforesaid contention is
noticed, it would be found that first and
foremost Section 16(c) of Specific Relief
Act clearly indicates that the plaintiff must
aver in his plaint that he is ready and
willing to perform his part of the contract.
Taking a glance at the plaint, it would
indicate that definitely the plaintiff has
averred that he was ready and willing to
perform his part of the contract, but
perhaps that is not enough. The issue of
readiness and willingness has two separate
connotations. The same not only has to be
averred but it has to be even proved. The
readiness and willingness has to be present
throughout the proceedings. The issue of
readiness and willingness was considered
recently by this Court in Arjun Prasad and
others vs. Ganesh Prasad and others
2023:AHC-LKO:43190: 2023 SCC Online
Allahabad
364
in
the
following
paragraphs:-

"29. The plea of readiness and
willingness is an important and essential
ingredient in relation to Section 16(c) of
the Specific Relief Act, 1963 and it has
been held that it is not a straight jacket
formula. In R.C. Chandiok v. Chuni Lal
Sabharwal (1970) 3 SCC 140, the Hon'ble
Apex Court observed as under:-

"readiness
and
willingness
cannot be treated as a straitjacket formula
and the issue has to be decided keeping in
view the facts and circumstances relevant
to the intention and conduct of the party
concerned"

30. In Narinderjit Singh v.
North Star Estate Promoters Limited,
(2012) 5 SCC 712, in para 21 to 23 held as
under:-

"20. In our view, the concurrent
findings recorded by the trial court and the
lower appellate court on the issues of
execution
of
the
agreement
by
the
appellant's father and the respondent's
readiness and willingness to perform its
part of the agreement were based on
correct evaluation of the pleadings and
evidence of the parties and the learned
Single Judge of the High Court did not
commit any error by refusing to upset those
findings. The argument of the learned
Senior Counsel for the appellant that in the
absence
of
specific
pleading
about
continued readiness and willingness of the
respondent to perform its part of the
agreement
and
availability
of
funds
necessary
for
payment
of
the
sale
consideration, the High Court should have
set aside the concurrent finding recorded
by the courts below sounds attractive but
on a careful scrutiny of the record we do
not find any valid ground to entertain the
same.

21. In R.C. Chandiok v. Chuni
Lal Sabharwal [(1970) 3 SCC 140] this
Court
observed
that
"readiness
and
willingness
cannot be
treated
as a
straitjacket formula and the issue has to be
decided keeping in view the facts and
circumstances relevant to the intention and
conduct of the party concerned". The same
view was reiterated in P. D'Souza v.
Shondrilo Naidu [(2004) 6 SCC 649].

22. In N.P. Thirugnanam v. R.
Jagan Mohan Rao [(1995) 5 SCC 115] the
Court found that the appellant was
dabbling in real estate transaction without
7 All. Ram Deo Vs. Paras Nath Singh & Ors.
1131
means to purchase the property and
observed: (SCC pp. 117-18, para 5)

"5. ... Section 16(c) of the Act
envisages that the plaintiff must plead and
prove that he had 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 those
terms the performance of which has been
prevented or waived by the defendant. The
continuous readiness and willingness on
the part of the plaintiff is a condition
precedent to grant the relief of specific
performance. This circumstance is material
and relevant and is required to be
considered by the court while granting or
refusing to grant the relief. If the plaintiff
fails to either aver or prove the same, he
must fail. To adjudge whether the plaintiff
is ready and willing to perform his part of
the contract, the court must take into
consideration the conduct of the plaintiff
prior and subsequent to the filing of the suit
along with other attending circumstances.
The amount of consideration which he has
to pay to the defendant must of necessity be
proved to be available. Right from the date
of the execution till date of the decree he
must prove that he is ready and has always
been willing to perform his part of the
contract. As stated, the factum of his
readiness and willingness to perform his
part of the contract is to be adjudged with
reference to the conduct of the party and
the attending circumstances. The court may
infer from the facts and circumstances
whether the plaintiff was ready and was
always ready and willing to perform his
part of the contract."

23. In J.P. Builders v. A.
Ramadas Rao [(2011) 1 SCC 429 : (2011)
1 SCC (Civ) 227] the Court has merely
reiterated the principles already laid down
and no new proposition has been laid down
which may help the cause of the appellant."

24. In the aforesaid decision of Arjun
Prasad (supra), this Court had the occasion
to consider various nuances relating to a
suit for specific performance and in respect
of readiness and willingness, it also noticed
an earlier decisions of this Court in
Ramzan Ali and another vs. Altafur
Rahman 2023:AHC-LKO:30146 wherein
with the aid of decisions of the Apex Court,
the issue of readiness and willingness has
been
considered
in
the
following
paragraphs:-

"27.
In
the
Corpus
Juris
Secundum,
vol.
81
pp.950-951,
the
readiness
and
willingness
has
been
interpreted to mean, a general principle of
law
that
a
person
seeking
specific
performance must show that he has
performed or offered to perform or is
ready, able and willing to perform, all the
essential acts required by the contract and
he must not remain quiet or hold himself
aloof so as to enforce or abandon the
contract
as
events
may
prove
advantageous. The plaintiff is entitled to
specific performance where he alleges and
proves that he has complied substantially
with the conditions of the contract or is
able, ready and willing to perform the
contract. (See also Satya Jain v Anis
Ahmed Rushdie AIR 2013 SC 434).

28. In the case of Bijai Bahadur
v. Shri Shiv Kumar AIR 1985 All 223, this
Court held that so far as the question of
readiness and willingness is concerned
while 'willingness' is merely a mental
process, 'readiness' is something to do with
translating that will into action and is
preceded by a necessary preparation for
being in a position to be ready. As to the
averments about this continuous readiness
and willingness the law never insists on any
particular form and the necessary averment
may be made in any language the plaintiff
1132 INDIAN LAW REPORTS ALLAHABAD SERIES
may choose to employ. The language is not
important. The crucial thing is that the
totality of the averments made in the plaint
must indicate the readiness and willingness
of the plaintiff, even though by necessary
inference.

29. This Court also notices the
decision of the Apex Court in His Holiness
Acharya Swami Ganesh Dassji Vs. Sitaram
Thapar; 1996 (4) SCC 526 wherein the
concept of readiness and willingness has
been noticed and has been held as under:-

"2. There is a distinction between
readiness to perform the contract and
willingness to perform the contract. By
readiness may be meant the capacity of the
plaintiff to perform the contract which
includes his financial position to pay the
purchase price. For determining his
willingness to perform his part of the
contract, the conduct has to be properly
scrutinised. There is no documentary proof
that the plaintiff had ever funds to pay the
balance of consideration. Assuming that he
had the funds, he has to prove his
willingness to perform his part of the
contract. According to the terms of the
agreement, the plaintiff was to supply the
draft sale deed to the defendant within 7
days of the execution of the agreement, i.e.,
by 27-2-1975. The draft sale deed was not
returned after being duly approved by the
petitioner. The factum of readiness and
willingness to perform plaintiff's part of the
contract is to be adjudged with reference to
the conduct of the party and the attending
circumstances. The court may infer from
the facts and circumstances whether the
plaintiff was ready and was always ready
and willing to perform his part of the
contract. The facts of this case would
amply
demonstrate
that
the
petitioner/plaintiff was not ready nor had
the capacity to perform his part of the
contract as he had no financial capacity to
pay the consideration in cash as contracted
and intended to bide for the time which
disentitles him as time is of the essence of
the contract."

30. Similarly, In J.P. Builders
and Another Vs. A. Ramadas Rao and
Another; 2011 (1) SCC 429 wherein the
Apex Court in paragraph nos. 22 to 27 has
observed as under:-

"22. The words "ready" and
"willing" imply that the person was
prepared to carry out the terms of the
contract.
The
distinction
between
"readiness" and "willingness" is that the
former refers to financial capacity and the
latter to the conduct of the plaintiff wanting
performance.
Generally,
readiness
is
backed by willingness.

23. In N.P. Thirugnanam v. Dr.
R. Jagan Mohan Rao [(1995) 5 SCC 115]
at SCC para 5, this Court held: (SCC pp.
117-18)

"5. ... Section 16(c) of the Act
envisages that the plaintiff must plead and
prove that he had 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 those
terms the performance of which has been
prevented or waived by the defendant. The
continuous readiness and willingness on
the part of the plaintiff is a condition
precedent to grant the relief of specific
performance. This circumstance is material
and relevant and is required to be
considered by the court while granting or
refusing to grant the relief. If the plaintiff
fails to either aver or prove the same, he
must fail. To adjudge whether the plaintiff
is ready and willing to perform his part of
the contract, the court must take into
consideration the conduct of the plaintiff
prior and subsequent to the filing of the suit
along with other attending circumstances.
The amount of consideration which he has
7 All. Ram Deo Vs. Paras Nath Singh & Ors.
1133
to pay to the defendant must of necessity be
proved to be available. Right from the date
of the execution till date of the decree he
must prove that he is ready and has always
been willing to perform his part of the
contract. As stated, the factum of his
readiness and willingness to perform his
part of the contract is to be adjudged with
reference to the conduct of the party and
the attending circumstances. The court may
infer from the facts and circumstances
whether the plaintiff was ready and was
always ready and willing to perform his
part of the contract."

24. In P. D'Souza v. Shondrilo
Naidu [(2004) 6 SCC 649] this Court
observed: (SCC p. 654, paras 19 and 21)

"19. It is indisputable that in a
suit for specific performance of contract
the plaintiff must establish his readiness
and willingness to perform his part of
contract. The question as to whether the
onus was discharged by the plaintiff or not
will
depend
upon
the
facts
and
circumstances of each case. No straitjacket
formula can be laid down in this behalf.
***

21.
...
The
readiness
and
willingness on the part of the plaintiff to
perform his part of contract would also
depend upon the question as to whether the
defendant did
everything
which
was
required of him to be done in terms of the
agreement for sale."

25. Section 16(c) of the Specific
Relief Act, 1963 mandates "readiness and
willingness" on the part of the plaintiff and
it is a condition precedent for obtaining
relief of grant of specific performance. It is
also clear that in a suit for specific
performance, the plaintiff must allege and
prove
a
continuous
"readiness
and
willingness" to perform the contract on his
part from the date of the contract. The onus
is on the plaintiff.

26. It has been rightly considered
by this Court in R.C. Chandiok v. Chuni
Lal Sabharwal [(1970) 3 SCC 140] that
"readiness and willingness" cannot be
treated as a straitjacket formula. This has
to be determined from the entirety of the
facts and circumstances relevant to the
intention
and
conduct
of
the
party
concerned.

27. It is settled law that even in
the absence of specific plea by the opposite
party, it is the mandate of the statute that
the plaintiff has to comply with Section
16(c) of the Specific Relief Act and when
there is non-compliance with this statutory
mandate, the court is not bound to grant
specific performance and is left with no
other alternative but to dismiss the suit. It
is also clear that readiness to perform must
be established throughout the relevant
points of time. "Readiness and willingness"
to perform the part of the contract has to be
determined/ascertained from the conduct of
the parties.""

25. Thus, taking note of the aforesaid
aspect of the matter in context with the
averments and material available on record,
this Court finds that though, the plaintiff
had stated in the plaint that he was ready
and willing to perform his part of the
contract
but
unfortunately,
while
he
examined himself as a witness, there is no
averment to the aforesaid effect in his
deposition. Even though, if the issue of
readiness and willingness is not to be taken
as a strait jacket formula, yet it still needs
to be seen as to whether there has been
sufficient compliance in light of the
averments and the statement made on oath.
It would be found that the plaintiff in his
examination-in-chief has merely stated that
the defendant No.1 had entered in a
registered agreement to sell with the
plaintiff in pursuance whereof he had paid
1134 INDIAN LAW REPORTS ALLAHABAD SERIES
a sum of Rs.2,000/- and Rs. 1,600/- was to
be paid at the time of the execution of the
sale deed. Permission was required to be
obtained by the defendant No.1, which he
evaded and later, as soon as the plaintiff
became aware that he had obtained the
permission, he had sent a notice and
thereafter, once the defendant No.1 has
sold the property to the defendants No.2
and 3, he immediately filed the suit.
Despite having made a statement in his
examination-in-chief as noted above, what
this Court finds is that there is no averment
in the examination-in-chief regarding the
plaintiff being ready and willing to perform
his part of the contract. There is no
averment in the plaint and in the evidence
that the plaintiff had the requisite funds or
that he had offered the same to the
defendant who refused it. There is no
details regarding the date or any other such
particular to substantiate that he had
requested the defendant to accept the
balance sale consideration and execute the
sale deed or to obtain the permission. There
has been no averment regarding any overt
act done by the plaintiff to suggest his
readiness and willingness.

26. There is another issue which has
to be seen in respect of readiness and
willingness i.e. to say, that it was
incumbent upon the plaintiff-appellant to
not only aver the readiness and willingness
and prove the same, but it was also required
to substantiate the same by the financial
capacity. In this regard, this Court finds
that mere self-serving statement of the
plaintiff regarding his income and readiness
and willingness, without its actual proof
may not come to the aid of the plaintiff. In
Ritu Saxena vs. J.S. Grover and another
(2019) 9 SCC 132, the Apex Court in
respect of the financial capacity of the
plaintiff
held
that
mere
self-serving
statement of income without proof of
financial resources is not sufficient to prove
that the plaintiff was ready and willing to
perform his part of the contract.

27. Applying the aforesaid dictum and
string of judgments noticed in Arjun
Prasad (supra) and Ramzan Ali (supra) to
the instant case, it would be evident that
there is no averment at all in the evidence
regarding readiness and willingness and as
already noticed above, there is no detail
regarding the date or time when the amount
was offered to the defendant. Thus, for all
the aforesaid reasons, this Court does not
find that the plaintiff was able to establish
his readiness and willingness by cogent
evidence.

28. In view of the aforesaid, this
Court does not find that the lower appellate
Court has committed an error in reversing
the finding on the aforesaid issue of
readiness and willingness. Insofar as the
submission of the learned counsel for the
appellant that no issue of readiness and
willingness was framed by the trial Court
and therefore, the lower appellate Court
could not have entered into the issue is
misconceived for the reason that it is now
well settled that irrespective of the fact
whether the defendant raises a defence
regarding
the
non-willingness
and
readiness of the plaintiff yet, it is the duty
of the plaintiff not only to aver but also to
prove his readiness and willingness and this
must continue throughout the proceedings.
The Court will not exercise its jurisdiction
and discretion to grant a decree of specific
performance without recording a finding on
readiness and willingness.

29. It can be argued that since the
plaintiff had averred in the plaint that he
was ready and willing and the defendant
7 All. Ram Deo Vs. Paras Nath Singh & Ors.
1135
No.1 who did not appear to contest the suit
and
remained
ex-parte,
while
the
defendants No.2 and 3 raised their defence,
but did not deny the readiness and
willingness in their written statement and
therefore, for that reason, an issue may not
have been framed, but nevertheless in order
to decree the suit, the Court is required to
return
a
finding
on
readiness
and
willingness and this aspect of the matter
was lost sight of by the trial Court and has
been correctly and appropriately noticed by
the lower appellate Court.

30. Even the submission of the
learned counsel for the appellant that there
was ample evidence to suggest the
readiness and willingness of the plaintiff
does not find favour with this Court for the
reasons
that
have
already
indicated
hereinabove, the plaintiff did not make a
single statement in his examination-in-chief
nor it could be pointed out that there were
any overt acts done by the plaintiff to prove
his readiness and willingness. Vague
averments or indirect inferences cannot be
construed to arrive at and recond any
cogent and positive finding regarding
readiness and willingness of the plaintiff.