VADU Vs. UK CHAND

JUDGEMENT

(1.) THE plaintiff-respondents instituted a suit for specific performance and possession and in the alternative, for the award of Rs. 1500/- as compensation for the breach of contract. THE suit was dismissed by the Munsif, Sanchore, by his judgment dated October 16, 1973. An appeal was preferred by the plaintiffs and the learned Civil Judge, Jalore, vide judgment dated May 3, 1974 accepted the appeal and directed Mst. Kanu to get the sale-deed (Ex. l) registered and to put the plaintiffs in possession over the land measuring 27 bighas 3-1/2 biswas of khasra No. 210 situated in Sanchore and Gajja and Achla (defendants No. 2 and 3 respectively) were directed to join the conveyance so as to pass title to the plaintiffs. Aggrieved against the appellate judgment, the defendants have come up in appeal to this Court under section 100 of the Code of Civil Procedure.

(2.) A few facts necessary for the disposal of this appeal may be noticed:

(3.) BEFORE I proceed to examine the arguments advanced on behalf of the parties, it will be useful to state the findings recorded by the learned Civil Judge: 1. that the sale-deed (Ex. l) was executed with consideration whereby deciding issue No. 1 in favour of the plaintiffs, 2. that defendants No. 2 and 3 were not the purchasers with value having no knowledge of the prior contract existing in favour of the plaintiffs and thus the contract can be specifically enforced against them, 3. that the defendants have not pleaded laches, acquiescence or delay on the part of the plaintiffs as such, the specific performance of the agreement could not be denied particularly when no prejudice was going to be caused to the defendants, 4. that the defendant No. 1 had received full consideration. All her defences were found wholly unsustainable, as such the plaintiffs were entitled to the relief of specific performance and. 5. that the court need not pass the order regarding cancellation of the subsequent sale-deed inasmuch as defendants No. 2 and 3 are also to join defendant No. 1 in the conveyance so as to pass title which resided in them to the plaintiffs. It was argued, in the first instance, by Mr. Rajendra Mehta, learned counsel for the appellants that there is no averment of readiness and willingness to perform their part of the contract by the plaintiffs in the plaint and, therefore in, the absence of such an averment, the suit for specific performance ought not to have been decreed by the lower appellate court In support of his argument, he referred to section 16 (c) of the Specific Relief Act, 1963 (No. XLVII of 1963) (for short 'the Act' hereafter ). The material portion of section 16 of the Act is as under: " 16. Personal bars to relief: Specific performance of a contract cannot be enforced in favour of a person: (a ). . . . . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . . . (c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of such has been prevented or waived by the defendant. Explanation: for the purposes of clause (c), (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the Court; (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. " On the basis of Prem Raj V. D. L. F. Housing and Construction (P.) Ltd. (l), R. P. Rai vs. Rajdeva Rai (2), Sankatha Prasad vs. Abdul Aziz Khan (3)Har Pratapsingh vs. Satyanarain Misra (4), he submitted that the requirement of the provisions of sec. 16 (c) of the Act are mandatory. On the other hand, Mr. Mangilal Shreemali learned counsel appearing for the respondents, urged that the aforesaid point was not raised by the defendants either in the written statement or before any of the courts below, and, therefore he should not be allowed to raise this point. He also submitted that had he taken this point either in the trial court or in the first appellate court, steps would have been taken by the plaintiffs to remove the alleged defects. According to him, the question of readiness and willingness is one which can only be determined on the basis of the evidence, and as such it being a mixed question of law and fact should not be permitted to be raised in second appeal. He invited my attention to Nurual Hasan V. Mahbub Bux (5) and State of Gujrat V. Vora Solebhai Gulamali (6 ). Reference was also made to section 99 of the Code of Civil Procedure and it was pressed that the objection that the averment of readiness and willingness was not made in the plaint does not effect the consequence. He decision of the case on merits and as such it is not of much also contended that on the facts and in the circumstances of the case, from the plaint, compliance of the provisions of section 16 (c) of the Act can be inferred. He relied on Kamdev Nath Choudhary V. Devendra Kumar Nath (7 ).