VIRENDRA KUMAR Vs. DAYA NAND

JUDGEMENT

(1.) THIS is a plaintiff's application in revision. It is directed against an order of the learned Civil Judge dismissing an application for amendment of the plaint.

(2.) THE suit was for specific performance of a contract dated August 23, 1976 for sale of a portion of a house. THE suit was filed on August 4, 1979. THE application for amendment was instituted by the plaintiff on November 20, 1979. THE plaintiff wanted to add in the plaint the plea that the plaintiff is still ready and willing to perform his part of the agreement. THE learned Civil Judge dismissed the application. THE court held that in view of Sec. 16 (c) of the Specific Relief Act the plaintiff has to make the requisite averment in the plaint and then to prove by evidence that he has always been ready and willing to perform his part of the contract. In the absence of such an averment in the plaint, the suit cannot succeed. Since valuable right has accrued to the defendant and, in the second place, because the amendment seeks to bring out a fresh cause of action in the plaint which was originally absent, the amendment cannot be allowed.

(3.) SECTION 16 (c) of the Specific Relief Act provides that specific performance of a contract cannot be enforced in favour of a person who fails to aver and prove that, he has performed Or is always ready and willing to perform the essential part of the contract, which has to be performed by him other than the terms, the performance of which has been prevented or waived by the defendant. Reading these two statutory provisions, it is plaint that the plaintiffs' willingness and readiness to perform his part of the agreement has not only to be proved but has also to dearly stated in the plaint. Lack of such an averment in the plaint can lead to the dismissal of the sujt on the ground .that relief of specific performance of the contract cannot be granted to the plaintiff because of failure to comply with the statutory requirement of Sec. 16 (c) of the Specific Relief Act.