HARI SAB Vs. PASHUPATI SAI

JUDGEMENT

(1.) The plaintiff of Title Suit No. 50/75 of the court of Munsif, chapra is the petitioner here and has come up to this Court againt the order dated 17-9-1983 passed by the lower appellate court, namely, the 2nd Subordinate Judge Chapra in Title Appeal No. 27/80.

(2.) By the impugned order the lower appellate court has rejected the prayer of the petitioner for the so-called amendment of the plaint. A very short background of the facts is warranted to be narrated. They are these. The petitioner instituted the suit for specific performance of contract averring in paragraph 18 of the plaint that the plaintiff was still ready and willing to perform his part of the contract. The trial court, inter alia, found that there was no averment in the plaint in terms of Section 16(c) of the Specific Relief Act, 1963 (Act No. 47 of 1963) (hereinafter referred to as the Act) resulting in a dismissal of the suit. The petitioner, when went up in appeal to the lower appellate court, wanted by way of abundant caution to give some more particulars in support of the averment already made in the plaint that he was still willing to perform and has always been ready and willing to perform the essential terms of the contract. By the impugned order, the lower appellate court has rejected the petitioners prayer on the ground that it will change the nature of the suit or the cause of action as also it would amount to giving an opportunity to the petitioner to fill up the lacuna in the plaint which was fatal to the suit being in contravention of the provisions of Section 16 (c) of the Act. It is pertinent to note here that the suit was one for specific performance of contract of a sale. I have stated this merely in order to highlight one aspect of the matter which deserves serious consideration. The averment, as originally made in paragraph 18 of the plaint was to the effect that the plaintiff was still ready and willing to perform his part of the contract which, in its turn embraces the provisions with regard to the readiness and willingness on his part to perform the essential term of the contract at all points of time before the institution of the suit. The explanation appended to clause (c) of Section 16 of the Act reads thus :

(3.) On the facts and in the circumstances of the case, therefore, Mr. S.C. Ghose, learned counsel for the petitioner rightly pressed into service a decision of the Supreme Court in the case of Ramesh Chandra Chandiok and another v. Chuni Lal Sabharwal and others, (AIR 1971 SC 1238 wherein a case of similar nature, although the facts were a little distinct and not identical it was held that: