Case Note & Summary
The appellant, Mehboob-ur-Rehman (since deceased, represented by legal representatives), filed a suit for specific performance of an agreement to sell a house in Kanpur for Rs. 30,000, with Rs. 15,000 paid as earnest money. The agreement was dated 16/17 April 1975. The appellant alleged that after the agreement, the Urban Land (Ceiling and Regulation) Act, 1976 came into force, requiring permission from the Competent Authority for transfer, which the respondent failed to obtain despite requests. The appellant served a notice on 6 May 1979, to which the respondent replied on 6 July 1979 denying the agreement and alleging that his signatures were obtained on blank papers. The suit was filed on 13 August 1979. The trial court decreed the suit on 10 December 1981, holding that time was not the essence, the suit was within limitation, and the plaintiff had proved readiness and willingness. The first appellate court reversed the decree on 3 July 1995, holding that the plaintiff failed to aver and prove continuous readiness and willingness as required under Section 16(c) of the Specific Relief Act, 1963. The High Court dismissed the second appeal on 10 December 2007, affirming the first appellate court's decision. The Supreme Court upheld the dismissal, holding that the plaintiff's plaint lacked specific averments of readiness and willingness, and the evidence did not establish continuous readiness. The court noted that the trial court's finding on readiness was without discussion, while the first appellate court and High Court correctly applied the law. The Supreme Court also upheld the rejection of the plaintiff's belated amendment application, as it would involve retrial. The appeal was dismissed with no order as to costs.
Headnote
A) Specific Relief Act - Readiness and Willingness - Section 16(c) - The plaintiff must aver and prove continuous readiness and willingness to perform his part of the contract; absence of such averment and proof is fatal to a suit for specific performance. The court must examine the substance of pleadings and evidence, but where there is complete absence of any averment or proof, the suit must fail. (Paras 12-13) B) Civil Procedure - Amendment of Plaint - Section 100 CPC - Rejection of amendment application at a belated stage, after evidence and during appeal, is justified if it would involve retrial and cause prejudice. The High Court may consider an unformulated substantial question of law under the proviso to Section 100(5) CPC, but it is not bound to do so. (Paras 10-11) C) Specific Relief Act - Burden of Proof - Section 16(c) - The burden is on the plaintiff to aver and prove readiness and willingness; the defendant need not raise a specific plea. The court can dismiss the suit even without an issue on the point if the plaintiff fails to discharge this burden. (Paras 7, 9, 11)
Issue of Consideration
Whether the plaintiff-appellant had averred and proved his continuous readiness and willingness to perform his part of the contract as required under Section 16(c) of the Specific Relief Act, 1963, and whether the courts below were justified in dismissing the suit on that ground.
Final Decision
The Supreme Court dismissed the appeal, affirming the judgments of the High Court and the first appellate court. The suit for specific performance was dismissed for want of proof of continuous readiness and willingness on the part of the plaintiff-appellant. No order as to costs.
Law Points
- Specific performance
- readiness and willingness
- Section 16(c) Specific Relief Act
- 1963
- pleading and proof
- equity
- amendment of plaint
- substantial question of law
- Section 100 CPC
