# Rama Kant & Ors v. Smt. Prema Devi & Ors

- **Citation:** (2024) 11 ILRA 257
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-29
- **Case number:** Second Appeal No. 112 of 2023
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rama-kant-ors-v-smt-prema-devi-ors-51004
- **Pages:** 17

## Headnote

Civil Law-The Specific Relief Act-1963Section
16(c)-Second
appeal
against
concurrent judgment---Trial court in a suit for
specific performance failed to frame the specific
issue regarding readiness and willingness---It
was incumbent upon the plaintiff-respondents to
specifically St. in the plaint that they have
arranged
the
remaining
money
of
sale
consideration and ready to pay the same and
prove it---In a suit for specific performance, the
258 INDIAN LAW REPORTS ALLAHABAD SERIES
issue of readiness and willingness of the
person
claiming
the
relief
of
specific
performance is required to be framed so that
he may know that he has to prove the
readiness and willingness to perform his part
of contract and the other party may prove
that the person claiming was not ready and
willing to perform his part ---Courts below
failed to consider the case in terms of
provision made in Section 16(C) and the law
on the point and allowed the suit filed by the
plaintiff without appropriately analyzing the
evidence and material on record, while
recording the findings of readiness and
willingness on the part of the plaintiff, the
impugned judgments are not sustainable in
the eyes of law.

Second Appeal allowed. (E-15)

List of Cases cited:

## Text

_Characters 0–39,938 of 55,119. This is a partial read: ask again with offset=39938 for what follows._

11 All. Rama Kant & Ors. Vs. Smt. Prema Devi & Ors.
257
him in front of his friend and hospital staff
and
also
having
lodged
frivolous
complaints against the appellant, which
alone is not sufficient to grant a decree of
divorce. The complaints lodged by the
respondent/wife had to be proved false and
malicious by the Appellant, so as to meet
the threshold of cruelty. On the contrary,
the
appellant/husband
in
his
crossexamination has admitted that they had
physical relations between 2013 to 2016. At
this stage, it would be relevant to add that
the suit for divorce was filed by the
appellant
only
on
14.11.2016.
The
instances
of
physical
and
mental
harassment, as pleaded and asserted by the
respondent/wife in her written statement,
are on the better footing than those alleged
by the appellant/husband. This Court also
finds that the petition for Domestic
Violence has been allowed in favour of the
respondent/wife, wherein she has even
been awarded a compensation and a
monthly maintenance. This all goes on to
show the contrary implication of the
allegations made by the Appellant.

(20) Further, it is the specific
allegations of appellant/husband that on
29.05.2016 at about 10:00 p.m., the
appellant
was
beaten
by
the
respondent/wife and he sustained injuries.
However, the learned trial Court has rightly
observed that though number of cases have
been lodged by the appellant/husband
against his wife but the appellant/husband
has not lodged any complaint/F.I.R. in
regard to the incident alleged to have been
occurred on 29.05.2016, which shows that
the
allegations
made
by
the
appellant/husband are doubtful.

(21) Apart from the aforesaid, it
has rightly been held by the learned trial
Court
that
the
pleadings
of
the
appellant/husband are not so grave and
weighty so as to dissolve the marriage. The
learned trial Court has rightly observed that
the appellant has failed to prove his
allegations of mental and physical cruelty.

(22) In view of the aforesaid, we
are of the opinion that no case is made out
by the appellant/husband to interfere with
the well reasoned findings of the learned
trial Court. The point of determination is
answered accordingly.

(23) The appeal thus being devoid
of merit deserves to be dismissed and is,
accordingly, dismissed. The parties to bear
their own costs.
----------
(2024) 11 ILRA 257
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.11.2024

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Second Appeal No. 112 of 2023

Rama Kant & Ors. ...Appellants
Versus
Smt. Prema Devi & Ors. ...Respondents

Counsel for the Appellants:
Ashok Kumar Srivastava, Atul Kumar Srivastava

Counsel for the Respondents:
Sharad Pathak, Piyush Pathak, Vipul Tripathi

Civil Law-The Specific Relief Act-1963Section
16(c)-Second
appeal
against
concurrent judgment---Trial court in a suit for
specific performance failed to frame the specific
issue regarding readiness and willingness---It
was incumbent upon the plaintiff-respondents to
specifically St. in the plaint that they have
arranged
the
remaining
money
of
sale
consideration and ready to pay the same and
prove it---In a suit for specific performance, the
258 INDIAN LAW REPORTS ALLAHABAD SERIES
issue of readiness and willingness of the
person
claiming
the
relief
of
specific
performance is required to be framed so that
he may know that he has to prove the
readiness and willingness to perform his part
of contract and the other party may prove
that the person claiming was not ready and
willing to perform his part ---Courts below
failed to consider the case in terms of
provision made in Section 16(C) and the law
on the point and allowed the suit filed by the
plaintiff without appropriately analyzing the
evidence and material on record, while
recording the findings of readiness and
willingness on the part of the plaintiff, the
impugned judgments are not sustainable in
the eyes of law.

Second Appeal allowed. (E-15)

List of Cases cited:

1. Jagjit Singh (D) Through LRs. Vs Amarjit
Singh; 2018 (36) LCD 2787

2. Sukhwindar Singh Vs Jagroop Singh & ors.;
AIR 2020 SC 4865

3. Shenbagam & ors. Vs K.K Rathinavel; (2022)
SCC Online SC 71

4. P. Ravindranath & anr.Vs Sasikala &
ors.(arising out of SLP (C) No.2246 of 2017);
2024 SCC OnLine SC 1749

5. Sukhbir Singh & ors. Vs Brij Pal Singh & ors.;
(1997) 2 SCC 200

6. U.N. Krishnamurthy (since deceased)
through LRs. Vs A.M. Krishnamurthy(Civil
Appeal No.4703 of 2022); (2023) 11 SCC
775

7. Sugani (MST) Vs Rameshwar Das & anr.;
(2006) 11 SCC 587

8. Rameshwar Prasad (dead) by LRS. Vs Basanti
Lal; (2008) 5 SCC 676

9.
Biswanath
Ghosh
(dead)
by
Legal
Representatives & ors. Vs Gobinda Ghosh alias
Gobindha Chandra Ghosh & ors.; (2014) 11 SCC
605
10. Kalyan Singh Chouhan Vs C.P. Joshi; (2011)
11 SCC 786

11. Dr. Om Prakash Rawal Vs Justice Amrit Lal
Bahri; (1993) SCC Online HP 13

12. V.S. Ramakrishnan Vs P.M. Muhammad Ali
(Civil Appeal Nos.8050-8051 of 2022); (2022)
SCC OnLine SC 1545

13. Syed Dastagir Vs T.R. Gopalakrishna Shetty;
(1999) 6 SCC 337

14. Gian Chand and Brothers & anr.Vs Rattan
Lal @ Rattan Singh; 2013 2 SCC 606

15. Jaspal Kaur Cheema & anr.Vs Industrial
Trade Links & ors.; (2017) 8 SCC 592

16. Prem Singh & ors. Vs Birbal & ors.; (2006) 5
SCC 353

(Delivered by Hon'ble Rajnish Kumar, J)

1. Heard, Shri G.S. Srivastava,
Advocate holding brief of Shri Ashok
Kumar Srivastava, learned counsel for the
appellants and Sri Sharad Pathak, learned
counsel for the respondents.

2. This second appeal under
Section 100 of the Civil Procedure Code,
1908 (here-in-after referred as C.P.C.) has
been filed assailing the judgment and
decree dated 10.11.1987 passed in Regular
Suit No.111 of 1984 (Shiv Nayak (dead)
and Others Vs. Shiv Dularey (dead) and
others) by the First Additional Civil Judge,
Raibareli and judgment and decree dated
27.02.2023 passed in Civil Appeal No.11 of
1991 (Shiv Dularey (Dead) and Others Vs.
Shiv Nayak (Dead) and Others) by the First
Additional District Judge, Raibareli.

3. Learned counsel for the
defendant-appellants, while assailing the
two judgments passed by the courts below,
submitted that the trial court in a suit for
11 All. Rama Kant & Ors. Vs. Smt. Prema Devi & Ors.
259
specific performance of contract failed to
frame the specific issue regarding readiness
and willingness in terms of Section 16 (c)
of The Specific Relief Act, 1963 (here-inafter referred as the Act of 1963). Even the
lower appellate court ignored the aforesaid
aspect and decided the appeal without
framing points of determination, therefore,
the appellants had filed Second Appeal
No.205 of 1992 before this Court, which
was allowed by means of the judgment and
order dated 09.05.2022, whereby this Court
had remanded the matter to the lower
appellate court directing it to frame points
of consideration and thereafter decide the
appeal on merits. It was further argued that
the lower appellate court despite the clear
order of this Court, though, framed the
points for determination but decided the
case on the basis of already existing
evidence and did not permit the parties to
lead fresh evidence which is in violation of
Order-41, Rule-25 C.P.C. apart from the
fact that the opportunity of hearing has
been lost to the appellant.

4. Learned counsel for the
appellant had further submitted that the
issue of readiness and willingness is
absolutely imperative and without its
compliance,
the
suit
for
specific
performance of contract could not have
been decreed apart from the fact that the
defendant-appellants had also raised an
objection that the agreement was an
outcome of fraud. But no replication was
filed. No evidence of payment of advance
of Rs.200/- was adduced. Even otherwise,
since the date of receipt of advance
06.10.1982 was mentioned in the plaint,
therefore, without amendment in the plaint
no evidence could have been adduced and
accepted by the courts below contrary to
the pleadings. He further submitted that the
PW-2 has denied the payment of advance.
PW-3 has also stated that the advance was
not paid before him. The readiness and
willingness has not been proved by any of
the witnesses with the evidence of financial
capacity of the plaintiff-respondents. There
is also no correspondence in this regard
prior to the notice and the notice was also
not served and it was not in accordance
with law.

5. He further submitted that even
after remand, the provisions of Order 14
C.P.C. have not been complied and the
impugned judgment and decree has been
passed by the learned lower appellate court
in violation of Order-41, Rule-25 C.P.C.
without framing of the issue of readiness
and willingness and proof thereof with the
financial capacity, therefore, the decree for
specific performance of contract could not
have been passed. Thus, the learned
counsel
for
the
defendant-appellants
submitted that the impugned judgment and
decrees are not sustainable in the eyes of
law and liable to be set-aside and the suit
filed by the plaintiff-respondents is liable to
be dismissed with cost.

6. Per contra, learned counsel for
the plaintiff-respondents submitted that the
predecessor-in-interest of the defendantappellants had entered into an agreement
for sale and executed the registered
agreement after receiving advance of
Rs.200/-
out
of
the
agreed
sale
consideration of Rs.50,000/-. The sale deed
was to be executed within a period of one
year after receipt of the remaining sale
consideration. Despite repeated requests
made by the predecessor-in-interest of the
plaintiff-respondents, it was not executed,
therefore, he gave a registered notice dated
27.08.1983 for performance of the contract
disclosing his readiness and willingness to
comply his part of the agreement. The
260 INDIAN LAW REPORTS ALLAHABAD SERIES
notice was deliberately returned because it
has been admitted by the predecessor-ininterest of the defendant-appellants that he
had heard that a notice was sent by
predecessor-in-interest of the plaintiffrespondents but no reply to the notice was
given, therefore, the suit for specific
performance was filed disclosing therein
the readiness and willingness of the
plaintiff-respondents for performance of
their part of the agreement to sale, which
was not specifically denied. Though
specific issue in regard to readiness and
willingness was not framed but while
considering the issue no.1, the trial court
considered the issue recording that for
specific performance of contract readiness
and willingness to perform his part of
contract by plaintiff is an essential element.
Thus, the issue was considered by the trial
court and after considering the pleadings
and evidence available on record, the suit
was decreed by means of the judgment and
decree dated 10.11.1987. The same was
challenged by the defendant-appellants in
civil appeal before the lower appellate
court and the lower appellate court, after
remand from this court by the order passed
in second appeal filed by the defendantappellants,
passed
a
fresh
order
in
accordance with the direction issued by this
court
and
framing
the
points
for
determination and confirmed the judgment
and decree passed by the trial court. The
lower appellate court dealt with the
grounds raised by the defendant-appellants
and also issue of readiness and willingness.

7. He further submitted that the
specific pleadings in regard to the payment
of advance of Rs.200/- and readiness and
willingness of the plaintiff-respondents has
not been specifically denied. Thus, the
question of framing of issue under Order14, Rule-1 C.P.C. does not arise. He further
submitted that since there was no denial of
specific pleadings, therefore, the same
stands admitted under Order-8, Rule-3 and
4 C.P.C. There was no specific reply to the
plea of readiness and willingness in para-6
of the plaint. He further submitted that the
pleadings for specific performance are in
conformity with Form-47 and 48 of
Appendix- A C.P.C. The written statement
is not as per Order-8, Rule-2 C.P.C. He
further submitted that the plea of violation
of Order-41, Rule-25 C.P.C. has already
been turned down by this Court, by means
of the order dated 31.07.2023, while
admitting the appeal and formulating the
substantial question of law, which is
unchallenged. Thus, there is no illegality or
infirmity in the impugned judgment and
decrees. The appeal has been filed on
misconceived and baseless grounds. The
substantial question of law formulated in
this appeal does not arise in this case and
the appeal is liable to be dismissed with
cost.

8.

I
have
considered
the
submissions of learned counsel for the
parties and perused the records.

9.

The
suit
for
specific
performance was filed by the predecessorin-interest of the plaintiff-respondents Shiv
Nayak (now dead) alleging therein that the
predecessor-in-interest of the defendantappellants Shiv Dulary (now dead) is the
owner
and
in
possession
of
plot
nos.583mi./0-2-0, 312/1-2-8, 325/0-3-11,
326mi./0-5-6,
329/4-2-8,
574/0-2-13,
590/0-0-15, 580/0-6-2, 329/0-1-0 total
measuring measuring 6 Bigha, 6 Biswa, 3
Biswansi situated in Village- Chilauli,
Pargana- Inhauna, Tehsil- Maharajganj,
District-
Raibareli
now
Amethi
as
Bhumidhar. The predecessor-in-interest of
the defendant-appellants Shiv Dularey
11 All. Rama Kant & Ors. Vs. Smt. Prema Devi & Ors.
261
(now
dead)
executed
a
registered
agreement for sale on 06.10.1982 after
taking advance Rs.200/- in favour of the
predecessor-in-interest of the plaintiffrespondents in village Chilauli for sale of
the aforesaid plots in consideration of
Rs.50,000/-. As
per
the
terms
and
conditions
of
the
agreement,
the
predecessor-in-interest of the plaintiffrespondents would arrange money within a
year of the execution of the agreement and
the
predecessor-in-interest
of
the
defendant-appellants would get the income
tax clearance and thereafter he would
execute the sale deed in favour of the
plaintiff-respondents after receiving the
remaining sale consideration. The plaintiffrespondents
asked
to
the
defendantappellants for executing the sale deed after
receiving the remaining sale consideration
many times but he ignored the same,
whereas the plaintiff-respondents were
always ready and willing to get the sale
deed executed in terms of the agreement
and it is known to the defendant-appellants.
The plaintiff-respondents gave a registered
notice dated 27.08.1983 through their
advocate to the defendant-appellants for
executing the sale deed in accordance with
the agreement, which was deliberately not
received
by
the
defendant-appellants.
Consequently the suit was filed.

10. The predecessor-in-interest of
the defendant-appellants filed a written
statement admitting himself the owner and
in possession of the aforesaid plots. He also
admitted the execution of the agreement
but contested the same on the ground that
he is of 72 years old and he is not
physically and mentally fit. In his family
there are five members; his wife and two
minor sons and two minor daughters, out of
which except one daughter, all are
unmarried and the source of livelihood of
his family is only agricultural land and his
whole family is dependent on it. It has
further been stated that the defendantappellants
have
neither
made
any
agreement for sale in favour of the
plaintiff-respondents
nor
received
the
advance of Rs.200/-. He further stated that
the real maternal uncle of Shiv Nayak i.e.
the plaintiff is Shiv Pratap and both are
very rebellious and their terror is in the
nearby area. Thakur Ram Singh of village-
Pichauli, Police Station- Subeha, District-
Barabanki was murdered on 07.10.1997, in
which the aforesaid two and six others were
convicted
and
punished
with
life
imprisonment
on
09.04.1979
by
the
Sessions Judge, Barabanki under Sections-
147/148/149
and
302
I.P.C.
During
conviction
the
plaintiff
Shiv
Nayak
threatened to the defendant to transfer his
land to him otherwise he would have to
face dire consequences. The plaintiff Shiv
Nayak alongwith his maternal Uncle Shiv
Pratap caught the defendant and took him
to Tehsil- Maharajganj, District- Raibareli
and with undue pressure got the agreement
executed. They also threatened that if he
would make any complaint to any officer,
then his children would become orphan.
Accordingly,
it
was
stated
that
the
agreement is illegal and it has been
obtained with undue influence and he has
never been given the advance and he has no
intention to sale the land in dispute. It was
also stated by the defendant-appellants that
on account of terror of the plaintiffrespondents, he is residing in village- Nevli
in District- Faizabad leaving the village-
Chilauli and his family is managing
agriculture from there. It was also stated
that the cost of the land in dispute was
Rs.1,000,00/- and it has been shown very
less in the agreement. The father of the
plaintiff-respondents Anant Ram had made
forceful possession on one of the plots of
262 INDIAN LAW REPORTS ALLAHABAD SERIES
the defendant-appellants and keeping his
animals on the same. On objection being
raised he is being threatened. Thus, the suit
is liable to be dismissed with cost.

11. On the basis of the pleadings of
the parties, the following two issues were
framed:-

"1. वया प्रखतिादी ने खििय हेतु कखथत
अनुिंध पत्र, जैसाखक िादोत्तर में कहा गया है, उत्पीखड़त
होकर, हाखन की अखभत्रास से भयािान्त होकर,
अनुखचत िल और प्रभाि में आकर तथा खिना खकसी
प्रखतफल के खजष्पाखदत खकया? यखद हााँ तो इसका
प्रभाि?
2. िादी गण खकस अनुतोष का, यखद कोई
हो, पाने के अखधकारी हैं?"

12. While considering the issue
no.1, the trial court recorded that for
specific performance of agreement, an
essential element is that the plaintiff was
always ready and willing to perform the
conditions of contract. Thereafter, after
considering the pleadings of the parties and
material on records came to the conclusion
that the plaintiff-respondents had neither
made any coercion on the defendantappellants for execution of the agreement
nor tried to harm nor it has been got written
by force and influence. It is also established
that the agreement was executed after
payment of Rs.200/- as advance. The
agreement was executed by defendantappellants without any undue influence
with free will in favour of the plaintiffrespondents and consequently, a direction
can be issued to the defendant-appellants
for performance of the contract. The suit
was decreed by means of the judgment and
decree dated 10.11.1987. The judgment and
decree passed by the trial court was
challenged in Civil Appeal No.11 of 1991.
The civil appeal was allowed, by means of
the judgment and decree dated 29.02.1992,
confirming the aforesaid judgment and
decree passed by the trial court. The said
judgment and decree was challenged before
this Court in Second Appeal No.205 of
1992; Shiv Dularey Vs. Shiv Nayak and
Others. The second appeal was allowed by
means of the order dated 09.05.2022 on the
ground that appellate court has failed to
frame the questions for consideration and
has further failed to take into consideration
the evidence of the case. The matter was
remanded back to the lower appellate court
for deciding it a fresh on merits in
accordance with law after taking into
consideration each and every points of
consideration with regard to the case and
evidence of the same. In deference to the
order passed by this Court, the lower
appellate court decided civil appeal filed by
the defendant-appellants by means of the
impugned judgment and decree dated
27.02.2023. Hence, this second appeal has
been filed which has been admitted on the
following substantial question of law.

"Whether the two Courts
were justified in decreeing the suit
for
specific
performance
of
contract without considering the
issue of readiness and willingness
which is sine qua non for the grant
of decree?"

13. For considering the aforesaid
substantial question of law, Section-16(c)
of the Act of 1963 is required to be
considered. For ready reference, the same
is extracted here-in-below:-

16.
Personal
bars
to
relief.-Specific performance of a
contract cannot be enforced in
favour of a person-
(a) ..............
11 All. Rama Kant & Ors. Vs. Smt. Prema Devi & Ors.
263
(b) ................
(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]
performance
of,
or
readiness
and
willingness
to
perform, the contract according to
its true construction.

14. In view of the aforesaid
Section-16(c) of Act of 1963, specific
performance of a contract can not be
enforced without proof by the person, who
claims it that he has performed or has
always been ready and willing to perform
essential terms of the contract which are to
be performed by him, other than the terms
of
performance
of which
has
been
prevented or waived by the defendant. The
Explanation-1 to clause (C) provides that
where a contract is for payment of money,
it is not essential for the plaintiff to actually
tender to the defendant or to deposit in the
court any money except without an order of
the court. According to the Explanation-2
to clause (C) the plaintiff must prove
performance
of,
or
readiness
and
willingness
to
perform,
the
contract
according to its true construction. Thus, a
decree of specific performance of contract
can not be passed unless the person, who
prays for a decree for specific performance
of contract, proves that he has performed or
always ready and willing to perform the
essential terms and conditions of the
contract, which were to be performed by
him, therefore, it is sine qua non for grant
of a decree of specific performance of
contract. It has to be determined on the
basis
of
entirety
of
facts,
relevant
circumstances
and
the
intention
and
conduct of the parties and financial
capacity of the party.

15. The Hon'ble Supreme Court, in
the case of Jagjit Singh (D) Through LRs.
Vs. Amarjit Singh; 2018 (36) LCD 2787,
has held that it is settled law that a plaintiff
who seeks specific performance of contract
is required to plead and prove that he was
always ready and willing to perform his
part
of
the
contract.
The
relevant
paragraph-4 is extracted here-in-below:-

"4. It is settled law that a
plaintiff
who
seeks
specific
performance of contract is required
to plead and prove that he was
always
ready
and
willing
to
perform his part of the contract1.
Section 16(c) of the Specific Relief
Act mandates that the plaintiff
should
plead
and
prove
his
readiness and willingness as a
condition precedent for obtaining
relief
of
grant
of
specific
performance. As far back as in
1967,
this
Court
in
Gomathinayagam Pillai and Ors. v.
Pallaniswami Nadar2 held that in a
suit for specific performance the
plaintiff must plead and prove that
he was ready and willing to
perform his part of the contract
right from the date of the contract
264 INDIAN LAW REPORTS ALLAHABAD SERIES
up to the date of the filing of the
suit. This law continues to hold the
field and has been reiterated in the
case of J.P. Builders and Anr. v. A.
Ramadas Rao and Anr.3 and P.
Meenakshisundaram
v.
P.
Vijayakumar & Ors.4. It is the duty
of the plaintiff to plead and then
lead evidence to show that the
plaintiff from the date he entered
into an agreement till the stage of
filing of the suit always had the
capacity and willingness to perform
the contract."

16. The Hon'ble Supreme Court, in
the case of Sukhwindar Singh Vs.
Jagroop Singh and Others; AIR 2020 SC
4865, has held that the suit being the one
for specific performance of the contract on
payment of the balance sale consideration,
the readiness and willingness was required
to be proved by the plaintiff and was to be
considered by the Courts below as a basic
requirement if a decree for specific
performance is to be granted.

17. The Hon'ble Supreme Court,
in the case of Shenbagam and Others
Vs.
K.K
Rathinavel;
(2022)
SCC
Online SC 71, has held that Section 16 of
the Specific Relief Act provides certain
bars to the relief of specific performance.
These include, inter alia, a person who
fails to aver and 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 and waived by
the defendant. It has further been held
that in evaluating whether the respondent
was ready and willing to perform his
obligations under the contract, it is not
only necessary to view whether he had
the financial capacity to pay the balance
consideration, but also assess his conduct
throughout
the
transaction.
The
"readiness" refers to whether he was
financially capable of paying the balance
consideration. It has also been held that
the decree of specific performance is
discretionary relief and in deciding
whether to grant the remedy of specific
performance, specifically in suits relating
to suits of immovable property, the courts
must be cognizant of the conduct of the
parties, the escalation of the price of the
suit property, and whether one party will
unfairly benefit from the decree and the
remedy provided must not cause injustice
to a party, specifically when they are not
at fault.

18. The Hon'ble Supreme Court,
in the case of P. Ravindranath and
Another
Vs.
Sasikala
and
Others(arising out of SLP (C) No.2246
of 2017); 2024 SCC OnLine SC 1749,
has
held
that
relief
of
specific
performance of contract is a discretionary
relief.
As
such,
the
Courts
while
exercising
power
to
grant
specific
performance of contract, need to be extra
careful and cautious in dealing with the
pleadings and the evidence in particular
led by the plaintiffs. Section 16 of the Act
of 1963 requires the readiness and
willingness to be pleaded and proved by
the plaintiff in a suit for specific
performance
of
contract.
The
said
provision has been widely interpreted and
held to be mandatory.

19. The Hon'ble Supreme Court, in
the case of Sukhbir Singh and Others Vs.
Brij Pal Singh and Other; (1997) 2 SCC
200, has held that law is not in doubt and it
is not a condition that the respondents
should have ready cash with them. It is
sufficient for the respondents to establish
11 All. Rama Kant & Ors. Vs. Smt. Prema Devi & Ors.
265
that they had the capacity to pay the sale
consideration.

20. Similar views have been taken
by the Hon'ble Supreme Court, in the cases
of U.N. Krishnamurthy (since deceased)
through
LRs.
Vs.
A.M.
Krishnamurthy(Civil Appeal No.4703 of
2022); (2023) 11 SCC 775, Sugani (MST)
Vs. Rameshwar Das and Another; (2006)
11 SCC 587, Rameshwar Prasad (dead)
by LRS. Vs. Basanti Lal; (2008) 5 SCC
676 and Biswanath Ghosh (dead) by
Legal Representatives and Others Vs.
Gobinda Ghosh alias Gobindha Chandra
Ghosh and Others; (2014) 11 SCC 605.

21. The Hon'ble Supreme Court, in
the case of Kalyan Singh Chouhan Vs.
C.P. Joshi; (2011) 11 SCC 786, has held
that the object of framing issues is to
ascertain/shorten the area of dispute and
pinpoint
the
points
required
to
be
determined by the court. The issues are
framed so that no party at the trial is taken
by surprise. It is the issues fixed and not the
pleadings that guide the parties in the
matter of adducing evidence. The court
should not decide a suit on a matter/point
on which no issue has been framed. Similar
view has been taken by a coordinate bench
of the Himachal Pradesh High Court in the
case of Dr. Om Prakash Rawal Vs.
Justice Amrit Lal Bahri; (1993) SCC
Online HP 13.

22. The Hon'ble Supreme Court, in
the case of V.S. Ramakrishnan Vs. P.M.
Muhammad Ali (Civil Appeal Nos.80508051 of 2022); (2022) SCC OnLine SC
1545, has held that though there was no
specific issue framed by the learned Trial
Court on readiness and willingness on the
part of the plaintiff, the Trial Court has
given the findings on the same and has
non-suited the plaintiff by observing that
the plaintiff was not having sufficient funds
to make the full balance consideration on or
before 12.01.2006. Such a finding could
not have been given by the learned Trial
Court without putting the plaintiff to notice
and without framing a specific issue on the
readiness and willingness on the part of the
plaintiff. The relevant paragraph 8 is
extracted here-in-below:-

"8. Now the findings and
the reasoning given by the learned
Trial Court refusing to pass a
decree for specific performance is
concerned it appears that though
there was no specific issue framed
by the learned Trial Court on
readiness and willingness on the
part of the plaintiff, the Trial Court
has given the findings on the same
and has non-suited the plaintiff by
observing that the plaintiff was not
having sufficient funds to make the
full balance consideration on or
before 12.01.2006. Such a finding
could not have been given by the
learned Trial Court without putting
the plaintiff to notice and without
framing a specific issue on the
readiness and willingness on the
part of the plaintiff. There must be
a
specific
issue
framed
on
readiness and willingness on the
part of the plaintiff in a suit for
specific performance and before
giving any specific finding, the
parties must be put to notice. The
object and purpose of framing the
issue is so that the parties to the
suit can lead the specific evidence
on the same. On the aforesaid
ground the judgment and order
passed by the learned Trial Court
dismissing the suit and refusing to
266 INDIAN LAW REPORTS ALLAHABAD SERIES
pass
the
decree
for
specific
performance of the agreement to
sell confirmed by the High Court
deserves to be quashed and set
aside and the matter is to be
remanded to the learned Trial
Court to frame the specific issue
with respect to the readiness and
willingness on the part of the
plaintiff. On remand the parties be
permitted to lead the evidence on
the readiness and willingness on
the part of the plaintiff to perform
his part of the contract, more
particularly, whether the plaintiff
was ready and willing to pay the
full consideration and whether the
plaintiff was having sufficient funds
and/or could have managed the
balance sale consideration."

23. In view of above, in a
suit for specific performance of
contract, the issue of readiness and
willingness of the person claiming
the relief of specific performance
of contract is required to be framed
so that he may know that he has to
prove the readiness and willingness
to perform his part of contract and
the other party may prove that the
person claiming was not ready and
willing to perform his part of
contract, however the issues can be
framed on the basis of pleadings of
the parties.

24. Learned counsel for the
plaintiff-respondents
had
also
submitted that the pleadings in the
plaint were in accordance with the
Form No.47 and 48 of C.P.C. in
which, the formats of pleadings of
suit for specific performance has
been given. According to the Form
No.47, it is to be stated that the
plaintiff has applied to the defendant
specifically to perform the agreement
on his part, but the defendant has not
done so and the plaintiff has been
and still is ready and willing
specifically to perform the agreement
on his part of which the defendant
has had notice. It is further required
to be pleaded that the plaintiff claims
that the Court will order the
defendant specifically to perform the
agreement and to do all acts
necessary to put the plaintiff in full
possession of the said property [or to
accept a transfer and possession of
the said property] and to pay the
costs of the suit. As per Form No.48,
it is to be stated that the plaintiff is
still ready and willing to pay the
purchase-money of the said property
to the defendant and the plaintiff
claims that the defendant transfers
the said property to the plaintiff by a
sufficient instrument following the
terms of the agreement. Thus the
plaintiff has to plead his readiness
and willingness to perform his part of
contract. It is also noticed here that
Form No.13 of appendix A regarding
the written statement provides for
defence for the suit for specific
performance, according to which it is
to be pleaded in the written statement
that the plaintiff has not performed
which of the conditions and as to
whether the plaintiff has been guilty
of delay, fraud or misrepresentation
and as to whether the agreement is
unfair or entered into by mistake.

25. The Hon'ble Supreme
Court, in the case of Syed Dastagir
Vs. T.R. Gopalakrishna Shetty;
(1999) 6 SCC 337, has dealt with
11 All. Rama Kant & Ors. Vs. Smt. Prema Devi & Ors.
267
the pleadings to be made with
reference to Section 16 (c) of the
Specific Relief Act. The relevant
paragraph-9,
11
and
12
are
extracted here-in-below:-

"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
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,
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
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; 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 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 cannot
268 INDIAN LAW REPORTS ALLAHABAD SERIES
dissolve
an
essence
if
already pleaded.
11. Section 16(c) of
the Specific Relief Act,
1963 is quoted hereunder:
-----------------------
---------------------------------
--------------
It is significant that
this explanation carves out
a contract which involves
payment of money as a
separate class from Section
16(c). Explanation (i) uses
the
words
"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".
(emphasis
supplied) This speaks in a
negative term what is not
essential for the plaintiff to
do. This is more in support
of the plaintiff that he need
not tender to the defendant
or deposit in court any
money but the plaintiff must
[as per Explanation (ii)] at
least aver his performance
or
readiness
and
willingness to perform his
part of the contract. This
does not mean that unless
the
court
directs
the
plaintiff cannot tender the
amount to the defendant or
deposit in the Court. The
plaintiff can always tender
the amount to the defendant
or deposit it in court,
towards performance of his
obligation
under
the
contract.
Such
tender
rather
exhibits
the
willingness of the plaintiff
to perform his part of the
obligation. What is "not
essential" only means need
not do but does not mean
he cannot do so. Hence,
when
the
plaintiff
has
tendered
the
balance
amount of Rs 120 in court
even without the Court's
order
it
cannot
be
construed
adversely
against the plaintiff under
Explanation (i). Hence, we
do not find any merit in the
submission of the learned
counsel
for
the
respondents.
12. In interpreting
a pleading wherever there
be
two
possible
interpretations, then the
one which defeats justice
should be rejected and the
one which subserves to
justice
should
be
accepted."

26. The Order-8, Rule-1 C.P.C.
provides for written statement of his
defence by the defendant. Rule-2 provides
that the defendant must raise all grounds of
defence as, if not raised, would be likely to
take the opposite party by surprise, or
would raise issues of fact not arising out of
the plaint, as, for instance, fraud, limitation,
release, payment, performance or facts
showing illegality. Rule-3 provides that it
shall not be sufficient for a defendant in his
written statement to deny generally the
grounds alleged by the plaintiff, but the
defendant must deal specifically with each
allegation of fact of which he does not
admit the truth, except damages. Rule 4
11 All. Rama Kant & Ors. Vs. Smt. Prema Devi & Ors.
269
provides that the denial should not be
evasive. Rule-5 (1) provides that every
allegation of fact in the plaint, if not denied
specifically or by necessary implication, or
stated to be not admitted in the pleading of
the defendant, shall be taken to be admitted
except as against a person under disability.
However, as per proviso the Court may in
its discretion require any fact so admitted to
be
proved
otherwise
than
by
such
admission. Sub rule (2) of Rule 5 provides
that where the defendant has not filed a
pleading,
the
court
may
pronounce
judgment on the basis of the facts contained
in the plaint, except as against a person
under a disability, but the Court may
require any such fact to be proved. Thus,
the defence in the written statement should
be specific and it should not be evasive.

27. The Hon'ble Supreme Court, in
the case of Gian Chand and Brothers and
Another Vs. Rattan Lal alias Rattan
Singh; 2013 2 SCC 606, has held that
Rules 3, 4 and 5 of Order VIII form an
integral code dealing with the manner in
which allegations of fact in the plaint
should
be
traversed
and
the
legal
consequences
flowing
from
its
noncompliance. It is obligatory on the part of
the defendant to specifically deal with each
allegation in the plaint and when the
defendant denies any such fact, he must not
do so evasively but answer the point of
substance.

28. The Hon'ble Supreme Court, in
the case of Jaspal Kaur Cheema and
Another Vs. Industrial Trade Links and
Others; (2017) 8 SCC 592, has held that a
defendant is required to deny or dispute the
statements made in the plaint categorically, as
evasive denial would amount to an admission
of the allegation made in the plaint in terms
of Order 8 Rule 5 of the Code.
29. Rule-1 of Order-XIV of C.P.C
provides about framing of issues. Sub-rule
(1) provides that issues arise when a
material proposition of fact or law is
affirmed by the one party and denied by the
other.