MD ASHFAQUE ALAM Vs. BINDWASHNI PRASAD

JUDGEMENT

(1.) The present revision application arises out of an order passed by the trial court by which two of plaintiff's amendments as sought at the initial stage of the suit have been rejected. The plaintiff filed a suit for specific performance of contract interalia stating that he had paid the consideration money on the basis of an oral agreement, as between the parties, The defendant refused to execute the sale deed. The money was paid in the year 1995, In the year 1997 on the last refusal by defendant on 21.12.1997 the suit was filed on 24.12.1997, The amendment sought was, first that the plaintiff was all along ready and willing to perform his part but the defendant refused to perform his part. This is in consonance with Section 16(c) of the Specific Relief Act. The second amendment that was sought was that in case the court is not inclined to grant relief in terms of the specific performance. then the court be pleased to direct refund of consideration money paid. These amendments were objected to by the defendant and the objection was upheld by the trial court on the ground first that Specific Relief Act did not permit the first amendment prayed for. In the same scheme he rejected the amendment petition dated 31.3.1999 in toto.

(2.) So far as the first amendment as sought by the plaintiff is concerned, suffice it to say that [law requires that before a person can be granted relief in respect of specific performance he by law is required to aver that he was ready and willing to perform his part at all times. This is necessary for the simple reason that unless there is an averment to this effect in the plaint no evidence in support of the pleading can be led. In absence of any evidence of readiness and willingness, there cannot be any relief in respect of specific performance, By not pleading the same at the initial stage no right accrues to the defendant in the sense that defendant cannot non suit the petitioner. It is another matter where no such averment is made but it is being sought to be added after evidence has been completely recorded because by not pleading the ingredient/requirements there is no occasion for the defendants to cross examine the plaintiff's witness. At this stage if amendment is allowed it would take away a right which has accrued to the defence.

(3.) On behalf of defendant-opposite party reliance was placed on a decision reported in 1978 Allahabad 463, Mahmood Khan and Anr. v. Ayub Khan and Ors. of a Division Bench where it was held that amendment to the plaint for the purpose of adjudication readiness and willingness of the plaintiff could not be permitted. I am afraid that the said decision has absolutely no application, In the said decision it is clear that the amendment was being sought at the appellate stage when the judgment had gone adverse to the plaintiff. As already indicated above i.e. this is not the stage in the present case. Moreover, the amendment is within the period of limitation available from the date of last accrual cause of action. There is no provision in the Specific Relief Act which has been brought to me notice. which prohibits any such amendment. Accordingly, I hold that the amendment in regard to the said averment was wrongly disallowed and the learned judge failed to exercise the jurisdiction vested in him.