PRABHAKARAN Vs. BHAVANI

JUDGEMENT

(1.) The appellant plaintiff sued for enforcement of Ext. P1, an agreement he entered into with the defendants in this case whereby the defendants agreed to sell the plaint schedule property to the plaintiff for a total consideration of Rs. 225/-. The plaintiff paid in advance an amount of Rs. 125/-, and the contract was to be performed within one year from the date of the agreement Since there was no move on the part of the defendants to perform their part of the contract the plaintiff issued Ext. P4 notice, which was addressed only to the 1st defendant though in the body of the notice all the three defendants were specifically named. Ext. P4 was returned with the endorsement that the addressee refused to accept it. The suit was laid for specifically enforcing the agreement for conveyance. The defendants resisted the action on various grounds, most of which, if not all, were false. The Trial Court decreed the suit, but on appeal by the defendants the lower appellate court took the view that there cannot be a decree for specific performance in as much as the plaint does not contain the necessary averments as laid down in S.16(c) of the Specific Relief Act. The plaintiff was, therefore, awarded a decree only to realise the advance paid with interest thereon.

(2.) The short question for decision is whether the relief sought for with respect to specific performance should fail for want of proper pleadings in this case. The position at law is fairly clear. S.16(c) of the Specific Relief Act, 1963 is extracted below:

(3.) I may, as canvassed by the learned counsel for the appellant, put a very liberal interpretation on the plaint. But I find that any amount of liberal approach on my part cannot supply the inherent lacuna in the plaint. It is not possible to hold in view of S.16(c) of the Specific Relief Act as also by the dictum laid down by a Supreme Court in the above mentioned decision that a pleading in the plaint to the effort that the plaintiff is always ready and willing to perform his part of the contract is an empty formality. The legislature has chosen to make a positive provision in the statute to the effect that such an averment is necessary for granting a decree for specific performance. Even by the utmost straining of the averments in the plaint it is not possible to spell out that the plaintiff has signified his willingness to perform the contract at all times. It was apparently because of this difficulty that the learned counsel for the appellant wanted me to treat Ext. P4 notice as part of the plaint. It is doubtful whether such a course is permissible in view of the decision of the Supreme Court as also of the contents of S.16(c) of the Specific Relief Act. Nevertheless I may refer to Ext. P4 as well. The first difficulty with regard to that notice is that though the body of the notice mentions all the three defendants it was specifically addressed only to the 1st defendant. If the notice was received by the 1st defendant probably one can say that the other defendants must be credited with the knowledge of the contents of the notice. What happened in this case was that the notice was returned unserved on the ground that the addressee refused to accept. That being the state of affairs it has to be doubted whether Ext. P4 is in that sense a notice to defendants 2 and 3 in this case. At any rate, when once the notice was returned unserved the plaintiff should have been all the more careful in averring in the plaint his readiness and willingness to perform his part of the contract. I may go a step further and presume for the sake of the learned counsel for the appellant that Ext. P4 is a valid notice against all the defendants herein. Even then I cannot find any improvement in the position as far as the plaintiff in this suit is concerned. In Ext. P4 also one would search in vain to find an averment that the plaintiff was ready and willing to perform his part of the contract. Thus even the notice cannot cure the defect in the plaint. No wonder the lower appellate court refused to decree specific performance.