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2021 DGLS(SC) 671

(SUPREME COURT)

Equivalent Citations :- 2022 (1) ALD(SC) 84 : 2021 (8) MLJ 576 : 2021 (12) Scale 638 : 2021
AIR(SCW) 5581 : 2021 AIR(SC) 5581 : 2022 (1) Supreme 37 : 2022 (151) ALR 253 : 2021 (6)
ALT(SC) 98 : 2022 (155) RD 714 : 2021 (4) R.C.R.(Civil) 632 : 2022 (1) JKJ 83 : 2021 (17)
SCC 705 :

Before :- Shah Mukesh Rasikbhai : Bose Aniruddha :JJ

Sughar Singh
Versus
Hari Singh (D) through Lrs.and Others

Case No. : Civil Appeal No. 5110 of 2021

Date of Decision : 26-10-2021

Acts Referred :

Code of Civil Procedure,S.100

Specific Relief Act,S.10(a)
Specific Relief Act,S.16
Specific Relief Act,S.20

# HEADNOTE #

Code of Civil Procedure, 1908— Section 100—High Court in exercise of powers under
section 100 of the CPC has reversed the concurrent findings recorded by both the
Courts below— Held, there were concurrent findings of fact recorded by Trial Court as
well as First Appellate Court on readiness and willingness on the part of the plaintiff,
which were on appreciation of evidence on record—Therefore, in exercise of powers
under section 100 of the CPC High Court ought not to have interfered with such findings
of fact unless such findings are found to be perverse—Appeal is allowed. [Paras 7 and
12]

Specific Relief Act, 1963—Sections 16 and 20— Code of Civil Procedure, 1908 —Section
100—Readiness and willingness— High Court in exercise of powers under section 100
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of the CPC has reversed the concurrent findings recorded by both the Courts below on
readiness and willingness, mainly/ solely on the ground that there are no specific
averments in the plaint which are required as per section 16(c) of the Act—High Court
has allowed the appeal and consequently dismissed the suit for specific
performance—Appeal against—While proving the readiness and willingness the plaintiff
is not required to make any averment that the plaintiff required executant of the
agreement to sell to attend the office of Sub-Registrar to execute the sale-deed within
the time agreed—Even the discretion under section 20 of the Act is required to be
exercised judiciously, soundly and reasonably—The plaintiff cannot be punished by
refusing the relief of specific performance despite the fact that the execution of the
agreement to sell in his favour has been established and proved and that he is found to
be always ready and willing to perform his part of the contract– Appeal is allowed.
[Paras 5.1, 7, 9, 10 and 12]

###

Cases Referred :

1. Syed Dastagir Vs. T.R.Gopalakrishnasetty;1999 ALR (37) 124 : 1999 Supreme (7) 175 :
1999 Scale (4) 697 : 1999 PLJ (2) 312 : 2000 MLJ (1) 1 : 1999 DGLS(SC) 797 : 1999 All.M.R.
(4) 286 : 1999 BCI 173 : 1999 AIR(SCW) 2959 : 1999 AIR(SC) 3029 : 1999 SCC (6) 337 :
2. C.S.Venkatesh Vs. A.S.C.Murthy (D) by Lrs.and Others;2020 A.I.C. (207) 14 : 2020 RD
(147) 478 : 2020 MPLJ (2) 180 : 2020 R.C.R.(Civil) (2) 71 : 2020 Scale (3) 313 : 2020 Mh.L.J.
(2) 854 : 2020 SCC (3) 280 : 2020 Supreme (2) 263 : 2020 DGLS(SC) 156 : 2020 AIR(SC) 930
: 2020 AIR(SCW) 930 : 2020 ALR (139) 233 : 2020 KCCR (3) 2077 :

Advocates Appeared :

Pradeep Kumar Dubey, Advocate, for the Appellant.

Praveen Swarup, Advocate, for the Respondent.

JUDGMENT

M.R. SHAH, J.—

1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 09.09.2010
passed by the High Court of Judicature at Allahabad in Second Appeal No.836 of 2010 by
which the High Court has allowed the said Second Appeal under Section 100 of the Code of
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Civil Procedure, 1908 (for short "CPC") and has quashed and set aside the judgment and
decree for specific performance of the Agreement confirmed by the First Appellate Court, the
original plaintiff has preferred the present Appeal.

2. The facts leading to the present appeal in nut-shell are as under:

2.1 That, one Ram Singh executed the agreement to sell in favour of original plaintiff -
Sughar Singh to sell the suit land for a total sale consideration of Rs.56,000/-. Rs.25,000/- was
received by the executant as a part sale consideration at the time of the agreement. The said
agreement to sell was executed on 10.10.1976. At this stage it is required to be noted that at
the relevant point of time agreement to sell was not required to be registered. As per the sale
agreement the sale deed was to be executed within a period of 2 years. The time period of 2
years was extended at the instance of the vendor by the documents dated 30.09.1978 and
29.09.1981. That, thereafter a further sum of Rs.15,000/- was paid. The vendor agreed to
receive the balance of Rs.16,000/- at the time of execution of the sale deed vide Annexure P3.
Despite receiving Rs.40,000/- towards part sale consideration and despite execution of the
agreement to sell, the original vendor executed the sale deed of the suit land on 23.06.1984 in
favour of defendant Nos.2 to 5. That, thereafter, Sughar Singh - vendee filed the Civil Suit
No.254 of 1984 in the Court of learned Civil Judge, Mathura City, Mathura (for short "learned
Trial Court") against the vendor Ram Singh and Others. The persons in whose favour
subsequently the sale deed was executed on 23.06.1984 were impleaded as defendant Nos.2
to 5 also. In the plaint it was also the specific case on behalf of the plaintiff that the defendant
Nos.2 to 5 are the real nephews of defendant No.1 and defendant Nos.2 to 5 and their father
had managed to get defendant No.1 in their control and that defendant Nos.2 to 5 and their
father have got one farzi document in the shape of sale deed without consideration executed
by defendant No.1 on 23.06.1984 and in their favour though they had full knowledge about the
agreement to sell executed in favour of the plaintiff.

2.2 That, the suit was contested by the defendant No.1 by filing a written statement denying
the very execution of the agreement to sell dated 10.10.1976 as well as two documents of
alleged extension of time dated 30.09.1978 and 29.09.1981. He also denied having received a
sum of Rs.25,000/- at the time of agreement and thereafter Rs.8000/- and Rs.7000/-
respectively at the time of alleged two extensions as part of the sale consideration.

2.3 That, defendant Nos.2 to 5 by a separate written statement contended that they are the
bonafide purchasers in good faith of the aforesaid land for a value vide registered sale deed
dated 23.06.1984 and that they had no knowledge about the Agreement dated 10.10.1976. 2.4
The learned Trial Court framed the following issues.
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"(1) Whether the defendant No.1 had executed the agreement to sell (paper No.7-a) dated
10.10.1976 of the land in dispute for a sum of Rs.56,000/- after receiving advance of
Rs.25,000/- ?

(2) Whether under the aforesaid agreement to sell the defendant No.1 has been paid a
further amount of Rs.8000/- on 30.09.1978 (Paper No.8-a/1) and Rs.7000/- on 29.09.1981
(Paper No.8-a/2)?

(3) Whether the plaintiff has always been ready and willing and is still ready and willing to
get the sale deed executed in accordance with the terms of the agreement of the sale. If yes,
its effect?

(4) Whether the defendant Nos.2 to 5 are the bona fide purchasers in good faith of the land
in dispute for a valuable consideration without notice of the aforesaid agreement?

(5) What relief the plaintiff is entitled to?"

2.5 On the side of the plaintiff, 6 witnesses came to be examined. Plaintiff also led the
documentary evidences. On the side of the defendants, 3 witnesses came to be examined and
the documentary evidences were also brought on record.

2.6 On appreciation of evidence, the learned Trial Court held the issue Nos.1 and 2 in favour
of the plaintiff and against the defendants. The learned Trial Court concluded that the
defendant No.1 had executed an agreement to sell dated 10.10.1976 in favour of the plaintiff
for the sale of his property at Rs.56,000/- and Rs.25,000/- as advance payment whose validity
was extended as per the documents dated 30.09.1978 after receiving Rs.8000/- and on
29.09.1981 after receiving Rs.7000/-.

2.7 On appreciation of evidence, the learned Trial Court also held the issue No.4 in favour of
the plaintiff and against the defendants. On appreciation of evidence the learned Trial Court
specifically held that the defendant Nos.2 to 5 were aware of the execution of agreement to sell
in favour of the plaintiff at the time of execution of sale deed in their favour. The learned Trial
Court also doubted the payment of sale consideration paid to the defendant No.1.

2.8 On appreciation of evidence the learned Trial Court held issue No.3 in favour of the
plaintiff and against the defendants by observing that the plaintiff was always ready and willing
to get the sale deed executed as per the terms and conditions of the agreement and that the
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plaintiff also proved that the plaintiff has acted as per the conditions of the agreement.

Consequently and after holding all the issues in favour of the plaintiff and against the
defendants, the learned Trial Court decreed the suit vide judgment and decree dated
07.02.1987 and directed the defendant No.1 to execute the sale deed after obtaining income
tax certificate from the Income Tax Department within two months and on receipt of
Rs.16,000/- (balance sale consideration). The learned Trial Court also passed an order
directing the defendant Nos.2 to 5 also to be a party to the sale deed along with defendant
No.1.

2.9 That, as the defendants neither preferred appeal nor acted as per the judgment and
decree passed by the learned Trial Court, the plaintiff filed Execution Case No.11 of 1987 to
execute the judgment and decree dated 07.02.1987, on 29.08.1987. As directed by the learned
Executing Court, the plaintiff deposited the balance amount of Rs.16,000/- on 20.09.1987. The
original defendant No.1 - Ram Singh died intestate on 20.09.1989.

That, after a period of almost 9 years from the date of passing of the judgment and decree
by the learned Trial Court, the original defendant Nos.2 to 5 preferred appeal before the
learned First Appellate Court. By judgment and order dated 24.08.1998, the learned First
Appellate Court dismissed the said appeal and confirmed the judgment and decree passed by
the learned Trial Court.

2.10 Feeling aggrieved and dissatisfied with the judgment and order passed by the learned
First Appellate Court dismissing the appeal and confirming the judgment and decree passed by
the learned Trial Court, the original defendant Nos.2 to 5 preferred Second Appeal
No.1388/1998 before the High Court.

The High Court raised two points for determination viz. (1) non-compliance of the provisions
of Section 16(c) of the Specific Relief Act, 1963 (for short "the Act") to the effect that the
plaintiff has failed to aver and prove that he was always ready and willing to perform his part of
the contract; and (2) with regard to the effect of non-registration of the two extensions of time
for executing the sale deed pursuant to the unregistered agreement to sell dated 10.10.1976 in
view of the U.P. Act No. 57 of 1976 and to decide the same in accordance with law.

By judgment and order dated 26.10.2007, the High Court set aside the judgment and order
passed by the First Appellate Court and remanded the matter to the First Appellate Court for
decision afresh on issue no.3 with regard to readiness and willingness of the plaintiff to get the
sale deed executed and for framing an additional issue with regard to the effect of
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nonregistration of the two documents granting extension of time to execute the sale deed in
view of the amendment made in Section 54 of the Transfer of Property Act vide U.P. Act No.
57 of 1976 and to decide the same in accordance with law.

Vide clarificatory order dated 12.11.2008, the High Court specifically observed and clarified
that the matter has been remanded to the First Appellate Court for decision afresh on issue
No.3 and on the aforesaid additional issue only and without disturbing or setting aside any
other findings of the First Appellate Court.

2.11 That, thereafter, on remand the learned First Appellate Court reconsidered issue No.3
as directed by the High Court and held in favour of the plaintiff and against the defendants and
the First Appellate Court specifically observed and held that there were necessary averments
in the plaint as required under Section 16(c) of the Act. On the additional issue learned First
Appellate Court held that considering the relevant provisions the registration was not must.
Consequently, the learned First Appellate Court held the issue Nos.3 and 6 in favour of the
plaintiff and against the defendants and consequently dismissed the appeal and again
confirmed the judgment and decree passed by the learned Trial Court.

2.12 Feeling aggrieved and dissatisfied with the judgment and order passed by the learned
First Appellate Court and the judgment and decree for specific performance passed by the
learned Trial Court confirmed by the learned First Appellate Court, the original defendant Nos.2
to 5 preferred Second Appeal before the High Court and by impugned judgment and order the
High Court has allowed the said appeal and has quashed and set aside the concurrent findings
recorded by both the Courts below and has reversed the judgment and decree of specific
performance solely on the ground that there are no specific averments in the plaint as required
under Section 16(c) of the Act and that there are no specific averments in the plaint both with
regard to readiness and willingness.

2.13 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by
the High Court, the original plaintiff has preferred the present Appeal.

3. Shri Col. Balasubramaniam, learned Senior Advocate appearing on behalf of the appellant -
original plaintiff has vehemently submitted that in the facts and circumstances of the case the
High Court has committed grave error in allowing the Second Appeal under Section 100 of the
CPC and has erred in setting aside the concurrent findings recorded by both the Courts below
insofar as the issue with respect to the readiness and willingness and non-compliance of
section 16(c) of the Act is concerned.

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3.1 It is vehemently submitted by the learned Senior Advocate appearing on behalf of the
original plaintiff that even the reasoning and conclusion recorded by the High Court that the suit
has to fail for non-compliance of pleadings as per section 16(c) of the Act is contrary to the
record and law laid down by this Court. It is submitted that as per the settled proposition of law
laid down by this Court, for determining the readiness and willingness, the suit has to be read
as a whole, the pith and substance being that readiness and willingness has to be in spirit and
not in the letter and form.

3.2 It is further submitted that in the present case the plaintiff specifically pleaded in
paragraphs 1 to 4 of the plaint and in paragraph 11 that he was always ready and willing to get
the sale deed executed and registered and perform his part of agreement, but the defendant
No.1 refused and hence, he had to file the suit. It is submitted that therefore finding recorded
by the High Court is contrary to the record and hence, perverse.

3.3 It is further submitted by learned Senior Advocate appearing for the appellant that High
Court has not properly appreciated the fact that in fact out of total sale consideration of
Rs.56,000/-, Rs.40,000/- was already paid and only a balance of Rs.16,000/- was left to be
paid, which as such was to be paid at the time of execution of the sale deed, even as admitted
by the vendor in the document at Annexure P3. It is submitted that therefore it cannot be said
that the plaintiff was not ready and willing to perform his part of the contract.

3.4 It is further submitted that even assuming for the sake of arguments that the pleadings
are not as per prescribed form, the same does not render the suit not maintainable in view of
the law laid down by this Court in the case of Syed Dastagir Vs. T.R. Gopalakrishna Setty
reported in (1999) 6 SCC 337 : 1999 (37) ALR 124 (SC).

3.5 It is further submitted that as such the question of readiness was very much pleaded and
demonstrated by the necessary averments in the plaint. It is submitted that the finding by the
High Court that the plaintiff has only stated about his readiness and not expressed his
willingness to perform his obligation is fatal and it overlooks the contents of document P3
wherein it was agreed by the vendor to receive balance of Rs.16,000/- at the time of executing
sale deed and in the plaint itself there were specific averments that the plaintiff had gone to
Sub- Registrar office and asked the vendor to execute the deed but he refused.

3.6 It is further submitted that the High Court has even erred in non-suiting the plaintiff on
applicability of proviso to Section 20 of the Act. It is submitted that the High Court has erred in
observing that it is not mandatory but discretionary to grant specific relief. It is submitted that
the reasoning given by the High Court that even if the agreement to sell is proved and even if
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the part or major portion of the sale consideration is paid and even if the readiness and
willingness is also proved, grant of decree for specific performance is discretionary is
unsustainable. It is submitted that if such an interpretation is accepted, in that case, in no case,
the decree for specific performance would be passed. It is submitted that even the discretion
not to grant relief cannot be exercised de hors the conduct of the parties. It is submitted that
every discretion has to be exercised soundly and reasonably.

3.7 It is further submitted that even otherwise looking to the conduct on the part of the
defendants more particularly defendant Nos.2 to 5 to get the sale deed executed in their favour
despite having knowledge of the agreement to sell executed by the defendant No.1 in favour of
the plaintiff and even the payment of sale consideration by the defendant Nos.2 to 5 is doubtful
and is not proved, section 20 of the Act shall not come in the way of the plaintiff in getting the
relief of decree for specific performance. It is submitted that as such in the facts and
circumstances of the case, section 20 of the Act shall not be applicable and/or attracted at all.

3.8 It is further submitted that as such there were concurrent findings of fact recorded by
both the Courts below on readiness and willingness which were on appreciation of evidence.
The High Court ought not to have set aside the concurrent findings, in exercise of powers
under Section 100 of the CPC.

3.9 It is further submitted that even no issue was framed either by the learned Trial Court or
by the First Appellate Court on applicability of Section 20 of the Act and the High Court has
dealt with and considered the same for the first time in a Second Appeal under Section 100 of
the CPC, which is wholly impermissible and which is beyond the scope and ambit of exercise
of powers under Section 100 of the CPC. Making above submissions and relying upon the
above decisions, it is prayed to allow the present appeal.

4. Present appeal is vehemently opposed by Shri Pramod Swarup, learned Senior Advocate
appearing on behalf of the defendant Nos.2 to 5.

4.1 It is submitted that the High Court has rightly dismissed the suit and refused to grant the
relief for specific performance in favour of the plaintiff on the ground that there were no
sufficient required averments in the plaint as per Section 16(c) of the Act.

4.2 It is submitted that the High Court has rightly drawn the distinction between readiness
and willingness. It is submitted that cogent reasons have been given by the High Court on
readiness and willingness. It is submitted that non-compliance of section 16(c) of the Act is
fatal to the case of the plaintiff and therefore, the plaintiff is not entitled to the discretionary
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relief of decree for specific performance.

4.3 It is further submitted that even otherwise the High Court is absolutely justified in
observing that in view of section 20 of the Act, the decree for specific performance is
discretionary. It is submitted that therefore as such the High Court has rightly ordered the
transferees to refund the amount of Rs.40,000/- to the plaintiff with interest at the rate of 8%
per annum with effect from 23.06.1984 till the payment which they had deposited. It is
submitted that as such the respondents - defendant Nos.2 to 5 had deposited a sum of
Rs.1,24,135/- on 11.10.2010 in the bank, however the plaintiff refused to take the money which
was calculated as per the directions of the High Court.

4.4 It is further submitted by Shri Swarup, learned Senior Advocate appearing on behalf of
the defendant Nos.2 to 5 that the agreement to sell was executed as far as back on 10.10.1976
and by now more than 45 years have passed and the defendant Nos.2 to 5 are in possession
since many years, therefore, if the judgment and decree passed by the learned Trial Court is
restored, defendant Nos.2 to 5 have to vacate the suit land and it will cause undue hardships to
the defendant Nos.2 to 5 and therefore, considering Section 20 of the Act, it is prayed not to
interfere with the impugned judgment and order passed by the High Court by which the High
Court has granted equitable relief. Making above submissions, it is prayed to dismiss the
present appeal.

5. Heard learned counsel appearing for the respective parties at length.

5.1 At the outset it is required to be noted that the appellant herein - original plaintiff
instituted the suit for specific performance of the agreement to sell dated 10.10.1976. The
learned Trial Court as well as the learned First Appellate Court decreed the suit in favour of the
plaintiff. Both, the learned Trial Court as well as the learned First Appellate Court held all the
issues in favour of the plaintiff including the issue that the plaintiff was always ready and willing
to perform his part of contract. However, the High Court in exercise of powers under Section
100 of the CPC has reversed the concurrent findings recorded by both the Courts below on
readiness and willingness, mainly / solely on the ground that there are no specific averments in
the plaint which are required as per section 16(c) of the Act. The High Court has also allowed
the appeal and consequently dismissed the suit for specific performance on the ground that the
relief of specific performance is the discretionary relief under Section 20 of the Act and that
even though the execution of the agreement to sell is proved and even the plaintiff was found
to be always ready and willing to perform his part of the obligation under the agreement to sell,
the decree of specific performance is not automatic and such grant of decree is dependent
upon the principles of justice, equity and good conscience.
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6. Now, so far as the observations made by the High Court on non-compliance of the provision
of Section 16(c) of the Act is concerned, having gone through the necessary averments in the
plaint it cannot be said that the averments / pleadings lack the requirement of Section 16(c) of
the Act. The necessary averments and pleadings on readiness and willingness read as under:

"2. That when two years were about to complete, the defendant requested the plaintiff to
extend the date till 31.10.1981 and also took Rs.8000/- out of the balance money. Defendant
No.1 is the father-inlaw of the plaintiff and for that reason, the plaintiff was ready to give all
kinds of accommodations to him. Plaintiff gave further Rs.8000/- to the defendant No.1 on
30.09.1978 and the time period for the execution between the plaintiff and the defendant No.1
was extended to 31.10.1981. The defendant No.1 got this agreed date written legally and
appended his thumb impression on it and gave it to the plaintiff.

3. That even by 31.10.1981, the defendant no.1 could not get his land cleared of the loan
from the bank because his brother Ranjeet Singh was also involved in that loan and he did not
want to give his share of money completely and for this reason, the defendant No.1 requested
to further increase the time period for the execution so that the bank loan could be cleared and
the land gets free from all liabilities and the same could be executed and registered in the
name of the plaintiff. For the reason of the relation and also that there was too much of love
and affection between the defendant No.1 and the wife of the plaintiff who is the daughter of
the defendant No.1, the plaintiff agreed to accommodate the defendant No.1 in all manner and
for this reason, plaintiff accepted the prayer of the defendant No.1 and extended the date for
execution and registration till 31.10.1984 and also gave Rs.7000/- out of the balance amount of
money to the defendant No.1. In this manner, out of the total amount of Rs.56,000/- agreed for
the land, Rs.40,000/- had already reached the defendant No.1 and only Rs.16,000/- was
balance to be paid by the plaintiff. The defendant No.1 also gave this in writing on 29.09.1981
to the plaintiff.

4. That the plaintiff has always been and even today, ready and willing to get the sale deed
executed and registered and perform his part of the agreement in terms of its terms and
conditions and the same is in complete knowledge of the defendant No.1.

8. That the plaintiff even got the notice served through registered post by Sh. Mahesh
Chandra Chaturvedi, Advocate in respect of the abovementioned agreement and gave him the
warning that he would not get the execution and registration done in the name of any other
person than the plaintiff. In hurry, there were some mistakes that occurred in the notice.

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11. That it was told to the defendant No.1 to come to the Sub-Registrar s office at Chatta
and in respect of the abovementioned agreement, execute and register the disputed land in the
name of the plaintiff and also give the possession of the same and also told to the defendants
No.2 - 5 that because they got the false sale deed registered in their favour, they should also
get involved with the defendant No.1 in the execution and registration in the favour of the
plaintiff.

But the defendant No.1 said that because the defendants No.2 - 5 and their father are
denying him and that he cannot go against their wished, he cannot do the execution and
registration and the defendants No.2 - 5 also denied to do or get involved with defendant No.1
to do the execution and registration and for this reason, the plaintiff is forced to institute the
present suit."

6.1 Even in the deposition it was the specific case on behalf of the plaintiff that he paid
initially Rs.25,000/- as part sale consideration and the sale deed was to be executed within a
period of two years. That, thereafter, the period was extended on the prayer of Ram Singh who
as such was the father-in-law of the plaintiff. The time period was extended till 31.10.1984 and
then the plaintiff paid a further sum of Rs.7000/- to Ram Singh for which also the document
was executed. Thus, from time to time, a total sum of Rs.40,000/- was paid out of the total sale
consideration of Rs.56,000/-. As per the last document executed which has been held to be
proved even by all the Courts below, the balance amount of Rs.16,000/- was to be paid at the
time of execution of sale deed. It is specifically stated in the deposition that he was ready and
willing to perform his part of the obligation in terms of agreement to sell and this fact was
known to Ram Singh. Considering the aforesaid facts and circumstances, the High Court has
committed a grave error in holding the issue with respect to readiness and willingness against
the plaintiff solely on the ground that there are no specific averments / pleadings in the plaint
as required under Section 16(c) of the Act. Considering the fact that initially payment of
Rs.25,000/- was made at the time of execution of the agreement to sell and further sum of
Rs.15,000/- in two installments were paid at the time when the subsequent two documents
were executed for extension of time and even the time was extended at the instance of
defendant No.1 and the balance amount of Rs.16,000/- was to be paid at the time of execution
of the sale deed, it can safely be said that the plaintiff was always ready and willing to perform
his part of the contract under the agreement to sell.

At this stage, the decision of this Court in the case of Syed Dastagir (supra) on pleadings as
required under Section 16(c) of the Specific Relief Act on readiness and willingness to perform
essential terms of the contract is required to be referred to. In the case before this Court, the
short question raised was, how to construe a plea of "readiness and willingness to perform" to
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subserve to the requirement of Section 16(c) of the Specific Relief Act and the interpretation of
its explanation. In paragraph 9, it is observed and held as under:

"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 dissolve an essence if already pleaded."

7. Even otherwise it is required to be noted that as such there were concurrent findings of fact
recorded by the learned Trial Court as well as the learned First Appellate Court on readiness
and willingness on the part of the plaintiff, which were on appreciation of evidence on record.
Therefore, in exercise of powers under Section 100 of the CPC the High Court ought not to
have interfered with such findings of fact unless such findings are found to be perverse. Having
gone through the findings recorded by the learned Trial Court as well as the learned First
Appellate Court on readiness and willingness on the part of the plaintiff, we are of the opinion
that findings recorded cannot be said to be perverse and/or contrary to the evidence on record.
On the contrary High Court has ignored the necessary aspects on readiness and willingness
which are stated hereinabove including the conduct on the part of the parties.
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8. Even the observations made by the High Court that Forms 47 and 48 of the Appendix A to
the CPC provide for making an averment that the plaintiff has been "and still is ready and
willing specifically to perform the agreement on his part" or that "the plaintiff is still ready and
willing to pay the purchase money of the said property to the defendant" and that "there is non-
compliance of Section 16(c) of the Specific Relief Act and the plaint does not even contain any
averment that the plaintiff ever required defendant no.1 to attend the office of the Sub-Registrar
to execute the sale deed within time agreed are too technical in the facts and circumstances of
the case. The overall circumstances and the conduct on the part of the parties are relevant
consideration for the purpose of deciding the aforesaid issues and the prayer of the plaintiff in
whose favour the execution of the agreement to sell has been held to be proved. The High
Court has given unnecessary stress on the word "still".

9. Even while proving the readiness and willingness the plaintiff is not required to make any
averment that the plaintiff required executant of the agreement to sell to attend the office of the
Sub-Registrar to execute the sale deed within the time agreed. Even as held by this Court in
the case of C.S. Venkatesh Vs A.S.C. Murthy (Dead) By Lrs. and Ors. reported in (2020) 3
SCC 280 : 2020 (207) AIC 14 (SC) : 2020 (139) ALR 233 to adjudge whether the plaintiff is
ready and willing to perform his part of contract, the Court must take into consideration the
conduct of the plaintiff prior and subsequent to filing of the suit alongwith other attending
circumstances in a particular case. It is also further observed that whether the plaintiff was
ready and was always ready to perform his part of contract may be inferred from the facts and
circumstances of a particular case. It is further observed that it is not necessary for the plaintiff
to produce ready money but it is mandatory on his part to prove that he has means to generate
consideration amount. In the present case even it was not the case on behalf of the defendants
and even there is no finding by the High Court that the plaintiff was not having any means to
generate consideration amount. It is required to be noted that as per the last extension and the
document executed the balance amount of sale consideration i.e. Rs.16,000/- was to be paid
at the time of execution of the sale deed and earlier out of Rs.56,000/- of total sale
consideration, Rs.40,000/- was already paid and there were two extensions at the instance of
the original defendant No.1 who was his father-in-law.

10. Now, so far as the finding recorded by the High Court and the observations made by the
High court on Section 20 of the Act and the observation that even if the agreement is found to
be duly executed and the plaintiff is found to be ready and willing to perform his part of the
Agreement, grant of decree of specific performance is not automatic and it is a discretionary
relief is concerned, the same cannot be accepted and/or approved. In such a case, many a
times it would be giving a premium to the dishonest conduct on the part of the defendant /
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executant of the agreement to sell. Even the discretion under Section 20 of the Act is required
to be exercised judiciously, soundly and reasonably. The plaintiff cannot be punished by
refusing the relief of specific performance despite the fact that the execution of the agreement
to sell in his favour has been established and proved and that he is found to be always ready
and willing to perform his part of the contract. Not to grant the decree of specific performance
despite the execution of the agreement to sell is proved; part sale consideration is proved and
the plaintiff is always ready and willing to perform his part of the contract would encourage the
dishonesty. In such a situation, the balance should tilt in favour of the plaintiff rather than in
favour of the defendant - executant of the agreement to sell, while exercising the discretion
judiciously.

For the aforesaid, even amendment to the Specific Relief Act, 1963 by which section 10(a)
has been inserted, though may not be applicable retrospectively but can be a guide on the
discretionary relief. Now the legislature has also thought it to insert Section 10(a) and now the
specific performance is no longer a discretionary relief. As such the question whether the said
provision would be applicable retrospectively or not and/or should be made applicable to all
pending proceedings including appeals is kept open. However, at the same time, as observed
hereinabove, the same can be a guide.

10.1 Even otherwise it is required to be noted that as such on applicability of Section 20 of

the Act, no issue was framed either by the learned Trial Court or by the learned First Appellate
Court or even by the High Court. The same has been dealt with by the High Court for the first
time in a Second Appeal under Section 100 of the CPC. Even otherwise no cogent reasons
have been given as to why the decree of specific performance shall not be passed in favour of
the plaintiff.

11. Now, so far as the submission on behalf of the defendant Nos.2 to 5 that the agreement to
sell was executed long back and that defendant Nos.2 to 5 are in possession of the suit
property / land since many years and if the suit is decreed, in that case, they will have to
vacate the suit land and therefore, the discretion may be exercised in favour of defendant
Nos.2 to 5 while declining the decree of specific performance in favour of the plaintiff is
concerned, the aforesaid cannot be accepted in the facts and circumstances of the case
narrated hereinabove. There are concurrent findings of fact recorded by the Courts below that
the defendant Nos.2 to 5 were in knowledge of the agreement to sell in favour of the plaintiff;
despite the same they purchased the suit land surreptitiously. Even the sale consideration
mentioned in the sale deed in their favour is found to be doubtful. Apart from the same, for all
these years the defendant Nos.2 to 5 cultivated the suit land and enjoyed the fruits while in
possession. On the contrary the balance must tilt in favour of the plaintiff as plaintiff is deprived
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of the possession for all these years because of the longdrawn litigation. The learned trial
Court passed the decree as far as back on 07.02.1987 but because of the appeal before the
learned First Appellate Court and thereafter, Second Appeal before the High Court and
thereafter a remand order by the High Court and again the decision by the learned First
Appellate Court and thereafter by the High court and the proceeding before this Court, huge
time has lapsed, which cannot be to the disadvantage of the plaintiff.

12. In view of the above and for the reasons stated hereinabove, the impugned judgment and
order 09.09.2010 passed by the High Court in Second Appeal No.836/2010 is unsustainable
and same deserves to be quashed and set aside and is, accordingly, quashed and set aside.
The judgment and decree dated 07.02.1987 passed by the learned Civil Judge, Mathura City,
Mathura in Civil Suit No.254 of 1984 is hereby restored and the suit is decreed and there shall
be a decree for specific performance of the agreement to sell dated 10.10.1976 in favour of the
plaintiff. The defendants - heirs and legal representatives of defendant No.1 as well as
defendant Nos.2 to 5 to execute the sale deed in favour of the plaintiff within a period of four
weeks from today and hand over the peaceful and vacant possession of the suit land to the
appellant - original plaintiff within a period of four weeks from today.

Appeal is allowed accordingly. No costs.

Appeal Allowed.

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