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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  8199 OF 2009

MEHBOOB-UR-REHMAN (DEAD) THROUGH LRS. Appellant(s)

VS.

AHSANUL GHANI Respondent(s)

JUDGMENT

Dinesh Maheshwari, J.

The  appellant  herein  (since  deceased  and  represented  by  his  legal

representatives) had filed the suit for specific performance of Agreement to Sell,

being O.S. No. 392 of 1979, that was decreed by the Court of II Additional Civil

Judge, Kanpur Nagar by the judgment and decree dated 10.12.1981.  However,

the  decree  so  passed  by  the  Trial  Court  was  reversed  by  the  Court  of  IX

Additional  District  Judge,  Kanpur  Nagar  in  its  judgment  and  decree  dated

03.07.1995 in Appeal No.54 of 1982, essentially on the ground that the plaintiff

had failed to aver and prove his continuous readiness and willingness to perform

his  part  of  the  contract.   The  High  Court  of  Judicature  at  Allahabad,  in  its

impugned  judgment  dated  10.12.2007  in  R.S.A.  No.  931  of  1995,  while

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dismissing the second appeal filed by the plaintiff-appellant, affirmed the decree

passed  by  the  First  Appellate  Court.   Aggrieved,  the  plaintiff-appellant  has

preferred this appeal.

2. Briefly  put,  the  relevant  background  aspects  of  the  matter  are  that  on

13.08.1979, the plaintiff-appellant filed the suit aforesaid with the averments that

the defendant-respondent had executed an agreement dated 16/17.04.1975 in

his  favour  for  sale  of  the  property  in  question,  being  House  Number  102 at

Faithful Ganj, Kanpur Nagar, for a consideration of Rs. 30,000/-; and that a sum

of Rs. 15,000/-  was paid as earnest  money while the remaining amount was

payable at the time of execution and registration of the sale deed.  The plaintiff-

appellant further averred that after the agreement, the Urban Land (Ceiling and

Regulation) Act, 1976 came to be promulgated prohibiting transfer of the property

without permission of  the Competent  Authority;  and the defendant-respondent

was required to obtain such permission but failed to do so despite requests. The

plaintiff-appellant yet further averred that on 06.05.1979, he served a notice on

the defendant-respondent for obtaining permission from the Ceiling Authorities

and for execution of the sale deed to which, the defendant-respondent sent a

reply  dated 06.07.1979 stating ignorance about  the agreement  and sought  a

copy thereof for proper reply while alleging that his signatures were obtained on

some papers in relation to a suit filed by the State Bank of India. The plaintiff-

appellant stated that these were the false pretexts taken by the defendant who

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was bound to execute the sale deed for  the house in question after  seeking

necessary permission; and for him having failed to do so, the suit was being filed

for enforcing specific performance of the agreement.

3. The defendant-respondent, while denying the plaint averments,  inter alia,

alleged that he was involved as a guarantor in relation to the loan taken by a firm

M/s Adam Textiles from the State Bank of India and his house in question was

hypothecated to the said bank; and when the bank threatened to take action

against him, the plaintiff, who was known to him, assured of contesting the matter

on  his  behalf  and  persuaded  him  to  hand  over  possession  of  the  house  in

question  on  rental  basis.  The  defendant  alleged  that  he  got  deceived  on

persuasion of the plaintiff and, for the purpose of conducting the trial of the suit

filed by the bank, his signatures were obtained on blank papers on which, some

document was fabricated; and that the copy of the alleged agreement was never

supplied  to  him  despite  demand.  The  defendant  also  took  the  objections

regarding limitation, valuation and court fees.

4. On the pleading of parties, the Trial Court framed the following issues for

determination of the questions involved in the matter:-   

“1. Whether the suit  is  under valued and court  fee paid is insufficient?

2. Whether the suit is barred by time? 3. Whether the agreement is forged as alleged? 4. Whether  the  agreement  was  got  affected  by

fraud, misrepresentation as alleged in paras 12 to 15 of W.S.?

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5. To what relief if any is the plaintiff entitled?”

5. After  taking the evidence and having heard the parties,  the Trial  Court

decreed the suit  on 10.11.1981 while recording the findings,  inter alia,  to  the

effect  that  time was not  the essence of  the contract;  that  the defendant  was

required to obtain necessary permission from the Urban Ceiling Authorities and

he having not done so, the suit was within time;  that the defendant refused to

honour his commitment in the letter dated 07.08.1979, which was received by the

plaintiff on 17.08.1979, whereas the suit had already been filed on 13.08.1979

and hence, the same was well within limitation; that by way of his testimony as

PW-1 and with the help of the notice dated 06.05.1979 (Exhibit 3), the plaintiff

succeeded to prove that he was always ready and willing to perform his part of

agreement; that the agreement was neither forged nor obtained by fraud or mis-

representation; and that in his reply notice dated 06.07.1979 (Exhibit A-12), the

defendant did not challenge the existence of agreement.

6. While challenging the decree of the Trial Court, the defendant raised the

grounds in the first appeal,  inter alia, that the finding of the Trial Court that the

plaintiff was ready and willing to perform his part of agreement was perverse and

for want of necessary averments, the suit ought to have been dismissed.   

7. As per the law applicable at the relevant point of time, the said first appeal

was filed in the High Court and the plaintiff, while appearing in the said appeal as

respondent, moved an application seeking leave to amend the plaint whereupon,

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the  High  Court  passed  the  order  dated  29.07.1982  that  the  application  for

amendment would be decided at the time of final hearing of the appeal.  Later on,

in view of alteration of jurisdiction, the appeal was transmitted by the High Court

to  the District  Court  and was ultimately  assigned to  the IX Additional  District

Judge,  Kanpur  Nagar  as  Appeal  No.  54  of  1982.   On  28.02.1995,  the  First

Appellate Court rejected the plaintiff's  application seeking leave to amend the

plaint and thereafter, allowed the appeal on 25.04.1995 while holding that the

plaintiff had failed to take the necessary averments in the plaint on his readiness

and willingness to perform his part of the contract.   

8. The  second  appeal  preferred  by  the  plaintiff-appellant  against  the

judgment and decree so passed by the First Appellate Court was admitted by the

High Court on the following substantial questions of law:-   

“(i) Whether  lower  appellate  court  is  justified  in dismissing  the  suit  for  non-compliance  of provisions of Section 14 and 16 of Specific Relief Act without any pleading and/or issue on the said point?

(ii) Whether the Lower Appellate Court ought to have framed the issues if relevant and ought to have remitted it to Trial Court?”

9. The High Court, in its impugned judgment dated 10.12.2007, examined in

detail the contentions of the parties and law applicable to the case, particularly

with reference to Section 16 of  the Specific Relief Act, 1963 (hereinafter also

referred  to  as  ‘the  Act’)  and several  decisions  of  this  Court  including  that  in

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Umabai  and another vs.  Nilkanth Dhondiba Chavan (Dead) by LRS. and

another : (2005) 6 SCC 243, and rejected the contentions urged on behalf of the

plaintiff-appellant while observing as under:-   

“It is clear from the averments made in the plaint and from  the  evidence  brought  on  record  that  there  is complete  absence  of  continuous  readiness  and willingness on the part of the plaintiff.  There is nothing in his conduct which may even remotely show that prior to the notice dated 6.5.1979 the plaintiff had expressed any readiness and willingness to perform his part of the contract.

The contention of the learned counsel for the appellant that the defendant also did not raise such a plea does not  help the plaintiff-appellant  because under Section 16 (c) of the Act is for the plaintiff to aver and prove this fact.  This is what was observed by the Supreme Court in  Umabai  (supra).   The  Trial  Court,  while  deciding issue No. 5 merely observed that certain sections of the Act including section 16(c) of the Act was not applicable because  the  plaintiff  has  been  ready  and  willing  to perform his part of the contract.  This finding has been arrived at without any discussion.  The Lower Appellate Court, on the other hand, has elaborately dealt with this issue.   It  has  observed  that  under  the  alleged agreement  dated  16/17-4-1975  permission  was required to be taken within one month of the agreement and then the sale-deed was required to be executed but the  plaintiff  not  only  failed  to  make  any  specific averment in the plaint about readiness and willingness but also failed to prove the same.  In the light of the discussion  made  above,  the  finding  recorded  by  the Lower Appellate Court is correct.”  

10. The contention on behalf of the plaintiff-appellant that the First Appellate

Court  was  not  justified  in  rejecting  the  application  for  amendment  was  also

negatived by the High Court with the following observations:-

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“The Lower  Appellate  Court  by a detailed order had rejected the application filed at  the belated stage for amending the plaint by adding a relief about readiness and willingness.  At the time of the admission of the Second  Appeal,  the  Court  did  not  formulate  any substantial  question  of  law  as  to  whether  the amendment  application  had  been  illegally  rejected. This plea, therefore, cannot be considered at the time of  hearing  of  the  Second  Appeal.   However,  even otherwise there is no infirmity in the order rejecting the amendment application as it had been moved with a considerable  delay  and  would  involve  a  retrial  as evidence would have to be led by the parties on this issue.”

11. Assailing the judgment of the High Court, learned counsel for the appellant

has  strenuously  argued  that  in  the  absence  of  any  objection  in  the  written

statement regarding non-compliance of Section 16(c) of the Act and without any

issue to that effect, the First Appellate Court and the High Court were not justified

in non-suiting the appellant only on the ground of the so called want of pleading

on readiness and willingness. Learned counsel would submit that for the purpose

of Section 16(c) of the Act, while examining the question regarding readiness and

willingness of the plaintiff to perform his part of the contract, the Court is required

to see the pith and substance of the entire pleadings and evidence and not just

the letter  and form; and on the substance of  the matter,  such readiness and

willingness is duly proved on record.   Learned counsel would also argue that

there was no justification in rejection of the application for amendment, if at all

any question regarding averment on readiness and willingness was being raised;

and for substantial  justice between the parties,  such an amendment  ought to

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have  been  allowed.   In  this  regard,  learned  counsel  has  also  argued  with

reference  to  proviso  to  sub-section  (5)  of  Section  100  of  the  Code  of  Civil

Procedure, 1908 ('CPC') that even if a substantial question of law involved in the

matter had not been formulated at the time of admission of appeal, the same

could  have  been  formulated  and  decided  by  the  High  Court  for  ensuring

substantial justice; and in the present case, the High Court has wrongly confined

itself only to the questions formulated at the time of admission, while putting the

matter  in  a  strait  jacket.   Per  contra,  learned  counsel  for  the  defendant-

respondent  has  duly  supported  the  judgment  of  the  High  Court  with  the

submissions that the plaintiff-appellant having failed to establish his readiness

and willingness to perform his part of the alleged agreement, the suit has rightly

been dismissed.

12. Having  bestowed  anxious  consideration  to  the  rival  submissions  and

having examined the record with reference to the law applicable, we are inclined

to agree with the High Court that, in the present suit, specific performance of the

agreement in question cannot be enforced in favour of the plaintiff-appellant for

want of proof of his continuous readiness and willingness to perform his part of

the essential terms of the contract.

13. It remains trite that the relief of specific performance is not that of common

law remedy but is essentially an exercise in equity. Therefore, in the Specific

Relief  Act,  1963,  even  while  providing  for  various  factors  and  parameters

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for  specific  performance  of  contract,  the  provisions  are  made  regarding  the

contracts which are not specifically enforceable as also the persons for or against

whom the  contract  may  be  specifically  enforced.  In  this  scheme  of  the  Act,

Section  16  thereof  provides  for  personal  bars  to  the  relief  of  specific

performance. Clause (c) of Section 16 with the explanation thereto, as applicable

to the suit in question, had been as follows:-  

"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]1 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  which  has  been  prevented  or waived by the defendant.

Explanation:--For the purpose 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]2 performance  of,  or readiness and willingness to perform, the contract according to its true construction.”

14. Though, with the amendment of the Specific Relief Act, 1963 by Act No. 18

of  2018,  the  expression  “who  fails  to  aver  and  prove”  is  substituted  by  the

1 By Act No. 18 of 2018,  the expression “who fails to aver and prove” is substituted by the expression  “who fails to prove” 2 By the same Act No. 18 of 2018,  the expression “ must aver” is substituted by the expression “must  prove”

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expression “who fails to prove” and the expression “must aver” stands substituted

by the expression “must prove” but then, the position on all the material aspects

remains the same that, specific performance of a contract cannot be enforced in

favour to the person who fails to prove that he has already 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  the  terms  of  which,  the

performance has been prevented or waived  by the other party.  As per the law

applicable  at  the  relevant  time,  it  was  incumbent  for  the  plaintiff  to  take  the

specific averment to that effect in the plaint.  Of course, it was made clear by this

Court  in  several  decisions3,  that  such  requirement  of  taking  the  necessary

averment was not a matter of form and no specific phraseology or language was

required to take such a plea. However, and even when mechanical reproduction

of the words of statue was not insisted upon, the requirement of such pleading

being available in the plaint was neither waived nor even whittled down.  In the

case of  A. Kanthamani  v.  Nasreen Ahmed: (2017) 4 SCC 654,  even while

approving the decree for specific performance of the agreement on facts, this

Court pointed out that the requirement analogous to that contained in Section

16(c) of the Specific Relief Act, 1963 was read in its forerunner i.e., the Specific

Relief Act, 1877 even without specific provision to that effect. Having examined

the scheme of the Act and the requirements of CPC, this Court said,-

3 vide Syed Dastagir  v. T.R.Gopalakrishna Setty: (1999) 6 SCC 337; and  Aniglase Yohannan  v. Ramlatha and Ors.: (2005) 7 SCC 534,

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“22. Therefore, the plaint which seeks the relief of specific performance of the agreement/contract must contain all requirements of Section 16 (c) read with requirements  contained  in  Forms  47  and  48  of Appendix ‘A’ CPC”

15. Such  a  requirement,  of  necessary  averment  in  the  plaint,  that  he  has

already performed or has always been ready and willing to perform the essential

terms of the contract which are to be performed by him being on the plaintiff,

mere want of objection by the defendant in the written statement is hardly of any

effect or consequence.  The essential question to be addressed to by the Court in

such a matter has always been as to whether, by taking the pleading and the

evidence  on  record  as  a  whole,  the  plaintiff  has  established  that  he  has

performed his part of the contract or has always been ready and willing to do so.

In this regard, suffice it  would be to refer to the principles enunciated by this

Court in the case of Umabai (supra) as under:-

"30. It is now well settled that the conduct of the parties, with  a  view  to  arrive  at  a  finding  as  to  whether  the plaintiff-respondents were all  along and still  are ready and  willing  to  perform  their  part  of  contract  as  is mandatorily  required  under  Section  16  (c)  of  the Specific Relief Act must be determined having regard to the entire attending circumstances.  A bare averment in the plaint or a statement made in the examination-in- chief  would  not  suffice.  The  conduct  of  the  plaintiff- respondents  must  be  judged  having  regard  to  the entirety of the pleadings as also the evidences brought on records.

*** *** ***

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45. It  was for the plaintiff  to prove his readiness and willingness to pay the stipulated amount and it was not for the appellants to raise such question…"

16. When the pleadings in the present case are examined with reference to

the principle aforesaid, it is but apparent that in the plaint, the plaintiff referred to

the agreement in question whereby, the defendant had allegedly agreed to sell

the house in question to him for a sale consideration of Rs. 30,000/- and averred

that the defendant received a sum of Rs. 15,000/- from him.  The plaintiff stated

that  the  agreement  was  executed  on  16/17.04.1975.  Thereafter,  the  plaintiff

straight away referred to the fact that subsequent to the execution of agreement,

the  Urban  Land  (Ceiling  and  Regulation)  Act,  1976  was  promulgated;  and

Section 27 thereof prohibited transfer of property without prior permission of the

Competent  Authority.  The plaintiff  further  averred that  he served notice dated

06.05.1979 on the defendant asking him to seek permission and to execute the

sale  deed;  that  the  notice  was  personally  served  on  the  defendant  on

17.05.1979;  and  that  the  defendant  in  his  reply  dated  06.07.1979,  feigned

ignorance about the agreement. The plaintiff further averred that the defendant

was  bound  to  execute  the  sale  deed  of  the  house  after  seeking  necessary

permission and for the defendant having failed to do so, the suit was being filed.

There is not even a remote suggestion in the plaint averments that the plaintiff

had performed or has always been ready and willing to perform his part of the

contract.  Even  in  the  plaintiff’s  testimony  as  PW-1,  it  is  difficult  to  find  a

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categorical assertion that he had performed or has always been ready and willing

to  perform his  part  of  the contract.  The testimony of  the plaintiff  as  PW-1 is

essentially directed towards the existence and validity of the alleged agreement

and  the  surrounding  dealings  of  the  parties;  but  is  lacking  in  those  material

assertions on readiness and willingness on his part, which remain essential for

grant of the relief of the specific performance.  

17. In the above set of circumstances, we are unable to find any fault in the

findings  of  the  High  Court  that  the  plaintiff  had  failed  to  aver  and prove his

continuous readiness and willingness to perform his part of the contract.  The suit

was bound to fail on this ground alone.

18. So far as the proposition for amendment of the plaint is concerned, we are

unable to find any illegality on the part of the First Appellate Court and the High

Court  in  rejecting the prayer belatedly  made by the plaintiff.   As noticed,  the

averment  and  proof  on  readiness  and  willingness  to  perform his  part  of  the

contract has been the threshold requirement for a plaintiff who seeks the relief of

specific performance.  The principle that the requirement of such averment had

not been a matter of form, applied equally to the proposition for amendment at

the late stage whereby, the plaintiff only attempted to somehow improve upon the

form  of  the  plaint  and  insert  only  the  phraseology  of  his  readiness  and

willingness.  In such a suit for specific performance, the Court would be, and had

always been, looking at the substance of the matter if the plaintiff, by his conduct,

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has established that he is unquestionably standing with the contract and is not

wanting in preparedness as also willingness to perform everything required of

him before he could be granted a relief whereby, the performance of other part of

the contract could be enjoined upon the defendant.   In the present case, the

plaintiff-appellant had failed to aver and prove his readiness and willingness to

perform  his  part  of  the  contract.  The  Trial  Court  made  a  rather  assumptive

observation that he had proved such readiness and willingness. Thereafter, the

plaintiff sought leave to amend the plaint only when the ground to that effect was

taken in the first appeal by the defendant.  In the facts and circumstances of the

present case, in our view, it was too late in the day for the plaintiff to fill up such a

lacuna in his case only at the appellate stage. In other words, the late attempt to

improve upon the pleadings of  the plaint  at  the appellate stage was only  an

exercise in futility in the present case.

19. Moreover,  the  High  Court  has  pointed  out,  and  rightly  so,  that  no

substantial question of law as regards the correctness of the order refusing the

application  for  amendment  was  formulated.  In  the  scheme  of  the  provisions

relating to second appeal, it remains fundamental, as per Section 101 CPC, that

no second appeal  would lie except on the ground mentioned in Section 100.

Sections 100 and 101 of the Code of Civil Procedure read as under:-

“100. Second Appeal.- (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force,  an appeal  shall  lie  to the High Court  from every  decree

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passed in appeal by any Court subordinate to the High Court, if the High Court  is  satisfied that  the case involves a substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed ex parte.

(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated  by  it,  if  it  is  satisfied  that  the  case  involves  such question.

101. Second appeal on no other grounds.-No second appeal shall lie except on the grounds mentioned in Section 100."  

20. As per Section 100 CPC, the appeal would lie to the High Court from the

decree passed in  appeal  by  any  Court  subordinate only  if  the  High  Court  is

satisfied that the case involves a substantial question of law; such question is

required to be stated in the Memorandum of Appeal; the High Court is required to

formulate the question on being satisfied that the same is involved in the case;

the appeal  is  to be heard on the question so formulated;  and at  the time of

hearing,  the  respondent  could  urge  that  the  case  does  not  involve  such  a

question. The proviso to sub-section (5) of Section 100 CPC makes it clear that

the Court  could hear the appeal  on any other substantial  question of  law not

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formulated by it, but only after recording the reasons that the case involves such

a question. In the case of Surat Singh (Dead) v. Siri Bhagwan and Ors.: (2018)

4 SCC 562 this Court has pointed out the contours of the powers of High Court

under the proviso to sub-section (5) of Section 100 CPC as under:-

“21………  The  proviso  to  sub-section  (5),  however,  also recognises the power of the High Court to hear the appeal on  any  other  substantial  question  of  law  which  was  not initially  framed  by  the  High  Court  under  sub-section  (4). However,  this power can be exercised by the High Court only after assigning the reasons for framing such additional question of law at the time of hearing of the appeal”.

21.  We are clearly of the view that the proviso to sub-section (5) of Section

100 CPC is not intended to annul the other requirements of Section 100 and it

cannot  be  laid  down  as  a  matter  of  rule  that  irrespective  of  the  question/s

formulated,  hearing  of  the  second  appeal  is  open  for  any  other  substantial

question  of  law,  even if  not  formulated  earlier.  The said  proviso,  by  its  very

nature, could come into operation only in exceptional cases and for strong and

convincing reasons, to be specifically recorded by the High Court. There being

no such strong and convincing reason in the present case to formulate and hear

the second appeal on any other question of law, the High Court cannot be faulted

in  rejecting  the  contentions  urged  on  behalf  of  the  plaintiff-appellant  in  this

regard.

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22. For what has been discussed hereinabove, we are satisfied that the relief

of specific performance of agreement in question has rightly been declined by the

First Appellate Court and the High Court.  No case for interference being made

out, the appeal stands dismissed.

...............................................J.          (ABHAY MANOHAR SAPRE)

          ...............................................J.

(DINESH MAHESHWARI)     1

New Delhi,  Dated: 15th  February, 2019.