KAMDEV NATH CHOUDHURY Vs. DEVENDRA KUMAR NATH

JUDGEMENT

(1.) WHETHER the impugned judgement and decree of specific performance of contract is liable to be set aside being hit by Section 16(c) of the Specific Relief Act, 1963 as the plaintiff had failed td aver performance of, or readiness and willingness to perform the contract according to its construction.

(2.) THE plaintiff sued the defendant for 1 kani of land. The plaintiff sold the suit land to the defendant for a consideration of Rs. 300/- on the condition of re-purchase if the consideration amount was repaid within three years. Thereafter it is averred by the plaintiff that he offered the consideration money of Rs. 300/- to the defendant in Pous, 1966 A.D. and asked the defendant to execute a deed of reconveyance in favour of the plaintiff. The defendant did not accept it. There was a panchayat on or about the 12th day of Jaistha, 1374 B.S. corresponding to 27-5-1966 wherein the plaintiff offered the money to the defendant and demanded due execution of the deed of reconveyance but without any success. As the causes of action arose in the month of Magh, 1374 B.S. and 12th of Jaistha, 1374 B.S. (27-5-1966 A.D.) on account of the refusal of the acceptance of the consideration money and refusal to reconveyance the land the plaintiff filed the suit in the court of the Munsiff, Dharmanagar and deposited a sum of Rs. 300/- in cash into court by a challan and prayed for a decree for reconveyance in respect of the suit land. The defendant contested the suit but did not take up any specific plea that there was no averment in the plaint as to the readiness and willingness to perform the contract by the plaintiff in his pleading. According td the defendant, there was no stipulation for reconveyance of the land as claimed by the plaintiff. The court of the first instance framed several issues but none touching the question as to the absence of averment as required under Section 16(c) of the Specific Relief Act, 1963, for short "the Act". The trial court decreed the suit. The appeal preferred by the appellant-defendant was abortive. Being aggrieved the defendant has brought the second appeal.

(3.) A person is entitled to bring an action in respect of a certain right or to a certain sum of money, but in some cases he is required to do something before he can sue either by reason of the provisions of some statute or on account of some agreement between the parties. These are the conditions precedent. According to Mr. Palit, Section 16(c) of "the Act" enjoins a party seeking relief of specific performance of a contract to aver in the plaint the requisites set out in Section 16(c) of "the Act". According to the learned Counsel the averment must be strictly in compliance with Forms Nos. 47 and 48 of Appendix A of the Civil Procedure Code Order 48, Rule 3 reads as follows :-