SUGHAR SINGH versus HARI SINGH (DEAD) THROUGH LRS. & ORS. on 26 October 2021

[2021] 10 S.C.R. 287

SUGHAR SINGH

v.

HARI SINGH (DEAD) THROUGH LRS. & ORS.

(Civil Appeal No. 5110 of 2021)

OCTOBER 26, 2021

[M. R. SHAH AND ANIRUDDHA BOSE, JJ.]

Specific Relief Act, 1963: s.20 – Discretion under – Exerciseof, scope – Held: Discretion under s.20 of the Act is required to beexercised judiciously, soundly and reasonably – Plaintiff cannotbe punished by refusing the relief of specific performance despitethe fact that the execution of the agreement to sell in his favour wasestablished and proved and that he was found to be always readyand willing to perform his part of the contract – Not to grant thedecree of specific performance despite the execution of theagreement to sell and part sale consideration having been provedand the plaintiff being always ready and willing to perform his partof the contract would encourage the dishonesty – In such a situation,the balance should tilt in favour of the plaintiff rather than in favourof the defendant-executant of the agreement to sell, while exercisingthe discretion judiciously.

Specific Relief Act, 1963: s.16(c) – Suit for specificperformance of the agreement to sell – Both, the Trial Court as wellas the First Appellate Court held all the issues in favour of theplaintiff including the issue that the plaintiff was always ready andwilling to perform his part of contract – However, High Court inexercise of powers under s.100 of the CPC reversed the concurrentfindings recorded by both the Courts below on readiness andwillingness, solely on the ground that there were no specificaverments in the plaint required as per s.16(c) of the Act – HighCourt also allowed the appeal on the ground that the relief of specificperformance is the discretionary relief under s.20 of the Act andthat even though the execution of the agreement to sell is provedand even the plaintiff was found to be always ready and willing toperform his part of the obligation under the agreement to sell, thedecree of specific performance is not automatic and such grant ofdecree is dependent upon the principles of justice, equity and good

287

A

B

C

DE

F

G

H

Aconscience – On appeal, held: High Court committed a grave errorin holding the issue with respect to readiness and willingness againstthe plaintiff solely on the ground that there were no specificaverments/pleadings in the plaint as required under s.16(c) of theAct – The fact that initially payment of Rs.25,000/- was made at thetime of execution of the agreement to sell and further sum ofBRs.15,000/- in two installments were paid at the time when thesubsequent two documents were executed for extension of time andeven the time was extended at the instance of defendant No.1 andthe balance amount of Rs.16,000/- was to be paid at the time ofexecution of the sale deed proved that the plaintiff was always readyCand willing to perform his part of the contract under the agreementto sell – Suit for specific performance of agreement of sell decreed.

Code of Civil Procedure, 1908: s.100 – Scope of interference– Held: There were concurrent findings of fact recorded by TrialCourt as well as First Appellate Court on readiness and willingnessDon the part of the plaintiff, which were on appreciation of evidenceon record – Therefore, in exercise of powers under s.100 of theCPC, High Court ought not to have interfered with such findings offact unless such findings are found to be perverse – The findingsrecorded by the Trial Court as well as the First Appellate Court onreadiness and willingness on the part of the plaintiff showed thatEthey were not perverse and/or contrary to the evidence on record –On the contrary, High Court had ignored the necessary aspects onreadiness and willingness including the conduct on the part of theparties – Specific Relief Act, 1963 – s.16(c).

Allowing the appeal, the CourtF

Conclusion

Allowing the appeal, the CourtF

HELD: 1 The appellant-original plaintiff instituted the suitfor specific performance of the agreement to sell. Both, the TrialCourt as well as the First Appellate Court held all the issues infavour of the plaintiff including the issue that the plaintiff wasalways ready and willing to perform his part of contract. However,Gthe High Court in exercise of powers under Section 100 of theCPC has reversed the concurrent findings recorded by both theCourts below on readiness and willingness, mainly / solely on theground that there are no specific averments in the plaint whichare required as per section 16(c) of the Act. The High Court has H

also allowed the appeal on the ground that the relief of specificperformance is the discretionary relief under Section 20 of theAct and that even though the execution of the agreement to sellis proved and even the plaintiff was found to be always ready andwilling to perform his part of the obligation under the agreementto sell, the decree of specific performance is not automatic andsuch grant of decree is dependent upon the principles of justice,equity and good conscience. [Para 5.1][301-A-D]

2. In the deposition of plaintiff, it was the specific case onbehalf of the plaintiff that he paid initially Rs.25,000/- as part saleconsideration and the sale deed was to be executed within a periodof two years. That, thereafter, the period was extended on theprayer of vendor who as such was the father-in-law of the plaintiff.The time period was extended till 31.10.1984 and then the plaintiffpaid a further sum of Rs.7000/- to vendor for which also thedocument was executed. Thus, from time to time, a total sum ofRs.40,000/- was paid out of the total sale consideration ofRs.56,000/-. As per the last document executed which has beenheld to be proved even by all the Courts below, the balanceamount of Rs.16,000/- was to be paid at the time of execution ofsale deed. It is specifically stated in the deposition that he wasready and willing to perform his part of the obligation in terms ofagreement to sell and this fact was known to vendor. Consideringthe aforesaid facts and circumstances, the High Court committeda grave error in holding the issue with respect to readiness andwillingness against the plaintiff solely on the ground that thereare no specific averments/pleadings in the plaint as required underSection 16(c) of the Act. Considering the fact that initially paymentof Rs.25,000/- was made at the time of execution of the agreementto sell and further sum of Rs.15,000/- in two installments werepaid at the time when the subsequent two documents wereexecuted for extension of time and even the time was extendedat the instance of defendant No.1 and the balance amount ofRs.16,000/- was to be paid at the time of execution of the saledeed, it can safely be said that the plaintiff was always ready andwilling to perform his part of the contract under the agreementto sell. [Para 6.1][303-B-F]

AB

C

D

E

F

G

H

A

A3. There were concurrent findings of fact recorded by theTrial Court as well as the First Appellate Court on readiness andwillingness on the part of the plaintiff, which were on appreciationof evidence on record. Therefore, in exercise of powers underSection 100 of the CPC the High Court ought not to haveinterfered with such findings of fact unless such findings are foundBto be perverse. Having gone through the findings recorded bythe Trial Court as well as the First Appellate Court on readinessand willingness on the part of the plaintiff, findings recorded cannotbe said to be perverse and/or contrary to the evidence on record.On the contrary High Court has ignored the necessary aspectsCon readiness and willingness including the conduct on the part ofthe parties. [Para 7][304-G-H; 305-A-B]

4. Even the observations made by the High Court thatForms 47 and 48 of the Appendix A to the CPC provide for makingan averment that the plaintiff has been “and still is ready andDwilling specifically to perform the agreement on his part” or that“the plaintiff is still ready and willing to pay the purchase moneyof the said property to the defendant” and that “there is non-compliance of Section 16(c) of the Specific Relief Act and theplaint does not even contain any averment that the plaintiff everrequired defendant no.1 to attend the office of the Sub-RegistrarEto execute the sale deed within time agreed are too technical inthe facts and circumstances of the case. The overall circumstancesand the conduct on the part of the parties are relevantconsideration for the purpose of deciding the aforesaid issuesand the prayer of the plaintiff in whose favour the execution ofFthe agreement to sell has been held to be proved. The High Courthas given unnecessary stress on the word “still”. [Para 8][305-C-E]

C.S. Venkatesh v. A.S.C. Murthy (Dead) By Lrs. andOrs. (2020) 3 SCC 280: [2020] 2 SCR 676 – relied on G

5. In the present case, even it was not the case on behalfof the defendants and even there is no finding by the HighCourt that the plaintiff was not having any means to generateconsideration amount. As per the last extension and thedocument executed the balance amount of sale consideration i.e.H

Rs. 16,000/- was to be paid at the time of execution of the saledeed and earlier out of Rs.56,000/- of total sale consideration,Rs.40,000/- was already paid and there were two extensions atthe instance of the original defendant No.1 who was his father-in-law. [Para 9][305-H; 306-A-B]

6. Now, so far as the finding recorded by the High Courtand the observations made by the High court on Section 20 ofthe Act and the observation that even if the agreement is foundto be duly executed and the plaintiff is found to be ready andwilling to perform his part of the Agreement, grant of decree ofspecific performance is not automatic and it is a discretionaryrelief is concerned, the same cannot be accepted and/or approved.In such a case, many a times it would be giving a premium to thedishonest conduct on the part of the defendant / executant of theagreement to sell. Even the discretion under Section 20 of theAct is required to be exercised judiciously, soundly andreasonably. The plaintiff cannot be punished by refusing the reliefof specific performance despite the fact that the execution of theagreement to sell in his favour has been established and provedand that he is found to be always ready and willing to perform hispart of the contract. Not to grant the decree of specificperformance despite the execution of the agreement to sell isproved; part sale consideration is proved and the plaintiff isalways ready and willing to perform his part of the contract wouldencourage the dishonesty. In such a situation, the balance shouldtilt in favour of the plaintiff rather than in favour of the defendant– executant of the agreement to sell, while exercising thediscretion judiciously. [Para 10][306-B-F]

7. Even amendment to the Specific Relief Act, 1963 by whichsection 10(a) has been inserted, though may not be applicableretrospectively but can be a guide on the discretionary relief.Now the legislature has also thought it to insert Section 10(a)and now the specific performance is no longer a discretionaryrelief. As such the question whether the said provision would beapplicable retrospectively or not and/or should be made applicableto all pending proceedings including appeals is kept open.However, at the same time, the same can be a guide.[Para 10][306-F-G]

A

BCDEF

G

H

A

A

BCDEF

G

H

A

A8. Even otherwise, as such on applicability of Section 20 ofthe Act, no issue was framed either by the Trial Court or by theFirst Appellate Court or even by the High Court. The same hasbeen dealt with by the High Court for the first time in a SecondAppeal under Section 100 of the CPC. Even otherwise no cogentreasons have been given as to why the decree of specificBperformance shall not be passed in favour of the plaintiff.[Para 10.1][306-H; 307-A]

9. Now, so far as the submission on behalf of the defendantNos.2 to 5 that the agreement to sell was executed long backand that defendant Nos.2 to 5 are in possession of the suit propertyC/ land since many years and if the suit is decreed, in that case,they will have to vacate the suit land and therefore, the discretionmay be exercised in favour of defendant Nos.2 to 5 while decliningthe decree of specific performance in favour of the plaintiff isconcerned, the aforesaid cannot be accepted in the facts andDcircumstances of the case. There are concurrent findings of factrecorded by the Courts below that the defendant Nos.2 to 5 werein knowledge of the agreement to sell in favour of the plaintiff;despite the same they purchased the suit land surreptitiously.Even the sale consideration mentioned in the sale deed in theirfavour is found to be doubtful. Apart from the same, for all theseEyears the defendant Nos. 2 to 5 cultivated the suit land and enjoyedthe fruits while in possession. On the contrary, the balance musttilt in favour of the plaintiff as the plaintiff is deprived of thepossession for all these years because of the long-drawn litigation.The trial Court passed the decree as far as back on 07.02.1987Fbut because of the appeal before the First Appellate Court andthereafter, Second Appeal before the High Court and thereaftera remand order by the High Court and again the decision by theFirst Appellate Court and thereafter by the High Court and theproceeding before this Court, huge time has lapsed, which cannotbe to the disadvantage of the plaintiff. [Para 11][307-B-F]G

Syed Dastagir v. T.R. Gopalakrishna Setty (1999) 6 SCC337 : [1999] 1 Suppl. SCR 351 – referred to H

Case Law Reference

[1999] 1 Suppl. SCR 351referred topara 3.4[2020] 2 SCR 676 relied onpara 9

CIVIL APPELLATE JURISDICTION: Civil Appeal No.5110 of2021.

From the Judgment and Order dated 09.09.2010 of the High Courtof Judicature at Allahabad in Second Appeal No.836 of 2010.

Col. Balasubramaniam, Sr. Adv., Abhigya Kushwah, SiddharthRajkumar Murarka, Ms. Sunita Yadav, Pradeep Kumar Dubey,Ms. Anamika Kushwaha, Ms. Nandita Rao, Shashank Shekhar,Mrs. Mahija Reddy, K. N. Agnihotri, Virender Arora, Advs. for theAppellant.

Pramod Swarup, Sr. Adv., Ms. Pareena Swarup, Ms. PayalSwarup, Ameet Singh, R. K. Singh, Praveen Swarup, Advs. for theRespondents.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 09.09.2010 passed by the High Court of Judicature atAllahabad in Second Appeal No.836 of 2010 by which the High Courthas allowed the said Second Appeal under Section 100 of the Code ofCivil Procedure, 1908 (for short “CPC”) and has quashed and set asidethe judgment and decree for specific performance of the Agreementconfirmed by the First Appellate Court, the original plaintiff has preferredthe present Appeal.

2. The facts leading to the present appeal in nut-shell are as under:

2. The facts leading to the present appeal in nut-shell are as under:

2.1 That, one Ram Singh executed the agreement to sell in favourof original plaintiff – Sughar Singh to sell the suit land for a total saleconsideration of Rs.56,000/-. Rs.25,000/- was received by the executantas a part sale consideration at the time of the agreement. The saidagreement to sell was executed on 10.10.1976. At this stage it is requiredto be noted that at the relevant point of time agreement to sell was notrequired to be registered. As per the sale agreement the sale deed wasto be executed within a period of 2 years. The time period of 2 yearswas extended at the instance of the vendor by the documentsdated 30.09.1978 and 29.09.1981. That, thereafter a further sum of A

B

C

D

E

F

G

H

ARs.15,000/- was paid. The vendor agreed to receive the balance ofRs.16,000/- at the time of execution of the sale deed vide Annexure P3.Despite receiving Rs.40,000/- towards part sale consideration and despiteexecution of the agreement to sell, the original vendor executed the saledeed of the suit land on 23.06.1984 in favour of defendant Nos.2 to 5.That, thereafter, Sughar Singh – vendee filed the Civil Suit No.254 ofB1984 in the Court of learned Civil Judge, Mathura City, Mathura (forshort “learned Trial Court”) against the vendor Ram Singh and Others.The persons in whose favour subsequently the sale deed was executedon 23.06.1984 were impleaded as defendant Nos.2 to 5 also. In theplaint it was also the specific case on behalf of the plaintiff that theCdefendant Nos.2 to 5 are the real nephews of defendant No.1 anddefendant Nos.2 to 5 and their father had managed to get defendantNo.1 in their control and that defendant Nos.2 to 5 and their father havegot one farzi document in the shape of sale deed without considerationexecuted by defendant No.1 on 23.06.1984 and in their favour thoughthey had full knowledge about the agreement to sell executed in favourDof the plaintiff.

2.2 That, the suit was contested by the defendant No.1 by filing awritten statement denying the very execution of the agreement to selldated 10.10.1976 as well as two documents of alleged extension of timedated 30.09.1978 and 29.09.1981. He also denied having received aEsum of Rs.25,000/- at the time of agreement and thereafter Rs.8000/-and Rs.7000/- respectively at the time of alleged two extensions as partof the sale consideration.

2.3 That, defendant Nos.2 to 5 by a separate written statementcontended that they are the bonafide purchasers in good faith of theFaforesaid land for a value vide registered sale deed dated 23.06.1984and that they had no knowledge about the Agreement dated 10.10.1976.

2.4 The learned Trial Court framed the following issues.

“(1)Whether the defendant No.1 had executed the agreementto sell (paper No.7-a) dated 10.10.1976 of the land in disputeGfor a sum of Rs.56,000/- after receiving advance ofRs.25,000/- ?

(2) Whether under the aforesaid agreement to sell thedefendant No.1 has been paid a further amount of Rs.8000/- on 30.09.1978 (Paper No.8-a/1) and Rs.7000/- on29.09.1981 (Paper No.8-a/2)?H

SUGHAR SINGH v. HARI SINGH (DEAD) THROUGH LRS. & ORS.[M. R. SHAH, J.]

(3) Whether the plaintiff has always been ready and willingand is still ready and willing to get the sale deed executed inaccordance with the terms of the agreement of the sale. Ifyes, its effect?

(4) Whether the defendant Nos.2 to 5 are the bona fidepurchasers in good faith of the land in dispute for a valuableconsideration without notice of the aforesaid agreement?

(5) What relief the plaintiff is entitled to?”

2.5 On the side of the plaintiff, 6 witnesses came to be examined.Plaintiff also led the documentary evidences.

On the side of the defendants, 3 witnesses came to be examinedand the documentary evidences were also brought on record.

2.6 On appreciation of evidence, the learned Trial Court held theissue Nos.1 and 2 in favour of the plaintiff and against the defendants.The learned Trial Court concluded that the defendant No.1 had executedan agreement to sell dated 10.10.1976 in favour of the plaintiff for thesale of his property at Rs.56,000/- and Rs.25,000/- as advance paymentwhose validity was extended as per the documents dated 30.09.1978after receiving Rs.8000/- and on 29.09.1981 after receiving Rs.7000/-.

2.7 On appreciation of evidence, the learned Trial Court also heldthe issue No.4 in favour of the plaintiff and against the defendants. Onappreciation of evidence the learned Trial Court specifically held thatthe defendant Nos.2 to 5 were aware of the execution of agreement tosell in favour of the plaintiff at the time of execution of sale deed in theirfavour. The learned Trial Court also doubted the payment of saleconsideration paid to the defendant No.1.

2.8 On appreciation of evidence the learned Trial Court held issueNo.3 in favour of the plaintiff and against the defendants by observingthat the plaintiff was always ready and willing to get the sale deed executedas per the terms and conditions of the agreement and that the plaintiffalso proved that the plaintiff has acted as per the conditions of theagreement.

Consequently and after holding all the issues in favour of theplaintiff and against the defendants, the learned Trial Court decreed thesuit vide judgment and decree dated 07.02.1987 and directed the defendantNo.1 to execute the sale deed after obtaining income tax certificate A

B

C

D

EF

G

H

Afrom the Income Tax Department within two months and on receipt ofRs.16,000/- (balance sale consideration). The learned Trial Court alsopassed an order directing the defendant Nos.2 to 5 also to be a party tothe sale deed along with defendant No.1.

2.9 That, as the defendants neither preferred appeal nor acted asBper the judgment and decree passed by the learned Trial Court, theplaintiff filed Execution Case No.11 of 1987 to execute the judgmentand decree dated 07.02.1987, on 29.08.1987. As directed by the learnedExecuting Court, the plaintiff deposited the balance amount of Rs.16,000/- on 20.09.1987. The original defendant No.1 – Ram Singh died intestateon 20.09.1989. That, after a period of almost 9 years from the date ofCpassing of the judgment and decree by the learned Trial Court, the originaldefendant Nos.2 to 5 preferred appeal before the learned First AppellateCourt. By judgment and order dated 24.08.1998, the learned FirstAppellate Court dismissed the said appeal and confirmed the judgmentand decree passed by the learned Trial Court.

D

2.10 Feeling aggrieved and dissatisfied with the judgment and orderpassed by the learned First Appellate Court dismissing the appeal andconfirming the judgment and decree passed by the learned Trial Court,the original defendant Nos.2 to 5 preferred Second Appeal No.1388/1998 before the High Court.E

The High Court raised two points for determination viz. (1) non-compliance of the provisions of Section 16(c) of the Specific Relief Act,1963 (for short “the Act”) to the effect that the plaintiff has failed toaver and prove that he was always ready and willing to perform his partof the contract; and (2) with regard to the effect of non-registration ofFthe two extensions of time for executing the sale deed pursuant to theunregistered agreement to sell dated 10.10.1976 in view of the U.P. ActNo. 57 of 1976 and to decide the same in accordance with law.

By judgment and order dated 26.10.2007, the High Court set asidethe judgment and order passed by the First Appellate Court and remandedGthe matter to the First Appellate Court for decision afresh on issue no.3with regard to readiness and willingness of the plaintiff to get the saledeed executed and for framing an additional issue with regard to theeffect of non-registration of the two documents granting extension oftime to execute the sale deed in view of the amendment made in Section54 of the Transfer of Property Act vide U.P. Act No. 57 of 1976 and toH

decide the same in accordance with law. Vide clarificatory order dated12.11.2008, the High Court specifically observed and clarified that thematter has been remanded to the First Appellate Court for decision afreshon issue No.3 and on the aforesaid additional issue only and withoutdisturbing or setting aside any other findings of the First Appellate Court.

2.11 That, thereafter, on remand the learned First Appellate Courtreconsidered issue No.3 as directed by the High Court and held in favourof the plaintiff and against the defendants and the First Appellate Courtspecifically observed and held that there were necessary averments inthe plaint as required under Section 16(c) of the Act. On the additionalissue learned First Appellate Court held that considering the relevantprovisions the registration was not must. Consequently, the learned FirstAppellate Court held the issue Nos.3 and 6 in favour of the plaintiff andagainst the defendants and consequently dismissed the appeal and againconfirmed the judgment and decree passed by the learned Trial Court.

2.12 Feeling aggrieved and dissatisfied with the judgment and orderpassed by the learned First Appellate Court and the judgment and decreefor specific performance passed by the learned Trial Court confirmedby the learned First Appellate Court, the original defendant Nos.2 to 5preferred Second Appeal before the High Court and by impugnedjudgment and order the High Court has allowed the said appeal and hasquashed and set aside the concurrent findings recorded by both the Courtsbelow and has reversed the judgment and decree of specific performancesolely on the ground that there are no specific averments in the plaint asrequired under Section 16(c) of the Act and that there are no specificaverments in the plaint both with regard to readiness and willingness.

2.13 Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court, the original plaintiff has preferredthe present Appeal.

3. Shri Col. Balasubramaniam, learned Senior Advocate appearingon behalf of the appellant – original plaintiff has vehemently submittedthat in the facts and circumstances of the case the High Court hascommitted grave error in allowing the Second Appeal under Section 100of the CPC and has erred in setting aside the concurrent findings recordedby both the Courts below insofar as the issue with respect to the readinessand willingness and non-compliance of section 16(c) of the Act isconcerned.

A

B

C

D

E

F

G

H

A3.1 It is vehemently submitted by the learned Senior Advocateappearing on behalf of the original plaintiff that even the reasoning andconclusion recorded by the High Court that the suit has to fail for non-compliance of pleadings as per section 16(c) of the Act is contrary tothe record and law laid down by this Court. It is submitted that as per thesettled proposition of law laid down by this Court, for determining theBreadiness and willingness, the suit has to be read as a whole, the pith andsubstance being that ‘readiness and willingness’ has to be in spirit andnot in the letter and form.

A

A

3.2 It is further submitted that in the present case the plaintiffspecifically pleaded in paragraphs 1 to 4 of the plaint and in paragraphC11 that he was always ready and willing to get the sale deed executedand registered and perform his part of agreement, but the defendantNo.1 refused and hence, he had to file the suit. It is submitted thattherefore finding recorded by the High Court is contrary to the recordand hence, perverse.D

3.3 It is further submitted by learned Senior Advocate appearingfor the appellant that High Court has not properly appreciated the factthat in fact out of total sale consideration of Rs.56,000/-, Rs.40,000/-was already paid and only a balance of Rs.16,000/- was left to be paid,which as such was to be paid at the time of execution of the sale deed,Eeven as admitted by the vendor in the document at Annexure P3. It issubmitted that therefore it cannot be said that the plaintiff was not readyand willing to perform his part of the contract.

3.4 It is further submitted that even assuming for the sake ofarguments that the pleadings are not as per prescribed form, the sameFdoes not render the suit not maintainable in view of the law laid down bythis Court in the case of Syed Dastagir Vs. T.R. Gopalakrishna Settyreported in (1999) 6 SCC 337.

3.5 It is further submitted that as such the question of readinesswas very much pleaded and demonstrated by the necessary avermentsGin the plaint. It is submitted that the finding by the High Court that theplaintiff has only stated about his readiness and not expressed hiswillingness to perform his obligation is fatal and it overlooks the contentsof document P3 wherein it was agreed by the vendor to receive balanceof Rs.16,000/- at the time of executing sale deed and in the plaint itselfthere were specific averments that the plaintiff had gone to Sub-RegistrarHoffice and asked the vendor to execute the deed but he refused.

3.6 It is further submitted that the High Court has even erred innon-suiting the plaintiff on applicability of proviso to Section 20 of theAct. It is submitted that the High Court has erred in observing that it isnot mandatory but discretionary to grant specific relief. It is submittedthat the reasoning given by the High Court that even if the agreement tosell is proved and even if the part or major portion of the sale considerationis paid and even if the readiness and willingness is also proved, grant ofdecree for specific performance is discretionary is unsustainable. It issubmitted that if such an interpretation is accepted, in that case, in nocase, the decree for specific performance would be passed. It is submittedthat even the discretion not to grant relief cannot be exercised dehorsthe conduct of the parties. It is submitted that every discretion has to beexercised soundly and reasonably.

3.7 It is further submitted that even otherwise looking to theconduct on the part of the defendants more particularly defendant Nos.2to 5 to get the sale deed executed in their favour despite having knowledgeof the agreement to sell executed by the defendant No.1 in favour of theplaintiff and even the payment of sale consideration by the defendantNos.2 to 5 is doubtful and is not proved, section 20 of the Act shall notcome in the way of the plaintiff in getting the relief of decree for specificperformance.

It is submitted that as such in the facts and circumstances of thecase, section 20 of the Act shall not be applicable and/or attracted at all.

3.8 It is further submitted that as such there were concurrentfindings of fact recorded by both the Courts below on readiness andwillingness which were on appreciation of evidence. The High Courtought not to have set aside the concurrent findings, in exercise of powersunder Section 100 of the CPC.

3.9 It is further submitted that even no issue was framed either bythe learned Trial Court or by the First Appellate Court on applicability ofSection 20 of the Act and the High Court has dealt with and consideredthe same for the first time in a Second Appeal under Section 100 of theCPC, which is wholly impermissible and which is beyond the scope andambit of exercise of powers under Section 100 of the CPC.

Making above submissions and relying upon the above decisions,it is prayed to allow the present appeal.

ABC

D

EF

G

H

A4. Present appeal is vehemently opposed by Shri Pramod Swarup,learned Senior Advocate appearing on behalf of the defendant Nos.2 to5.

4.1 It is submitted that the High Court has rightly dismissed thesuit and refused to grant the relief for specific performance in favour ofBthe plaintiff on the ground that there were no sufficient required avermentsin the plaint as per Section 16(c) of the Act.

4.2 It is submitted that the High Court has rightly drawn thedistinction between readiness and willingness. It is submitted that cogentreasons have been given by the High Court on readiness and willingness.CIt is submitted that non-compliance of section 16(c) of the Act is fatal tothe case of the plaintiff and therefore, the plaintiff is not entitled to thediscretionary relief of decree for specific performance.

4.3 It is further submitted that even otherwise the High Court isabsolutely justified in observing that in view of section 20 of the Act, theDdecree for specific performance is discretionary. It is submitted thattherefore as such the High Court has rightly ordered the transferees torefund the amount of Rs.40,000/- to the plaintiff with interest at the rateof 8% per annum with effect from 23.06.1984 till the payment whichthey had deposited. It is submitted that as such the respondents –defendant Nos.2 to 5 had deposited a sum of Rs.1,24,135/- on 11.10.2010Ein the bank, however the plaintiff refused to take the money which wascalculated as per the directions of the High Court.

4.4 It is further submitted by Shri Swarup, learned Senior Advocateappearing on behalf of the defendant Nos.2 to 5 that the agreement tosell was executed as far as back on 10.10.1976 and by now more thanF45 years have passed and the defendant Nos.2 to 5 are in possessionsince many years, therefore, if the judgment and decree passed by thelearned Trial Court is restored, defendant Nos.2 to 5 have to vacate thesuit land and it will cause undue hardships to the defendant Nos.2 to 5and therefore, considering Section 20 of the Act, it is prayed not toGinterfere with the impugned judgment and order passed by the HighCourt by which the High Court has granted equitable relief.Making above submissions, it is prayed to dismiss the presentappeal.

5. Heard learned counsel appearing for the respective parties atHlength.

5. Heard learned counsel appearing for the respective parties atHlength.

5.1 At the outset it is required to be noted that the appellant herein– original plaintiff instituted the suit for specific performance of theagreement to sell dated 10.10.1976. The learned Trial Court as well asthe learned First Appellate Court decreed the suit in favour of the plaintiff.Both, the learned Trial Court as well as the learned First Appellate Courtheld all the issues in favour of the plaintiff including the issue that theplaintiff was always ready and willing to perform his part of contract.However, the High Court in exercise of powers under Section 100 ofthe CPC has reversed the concurrent findings recorded by both theCourts below on readiness and willingness, mainly / solely on the groundthat there are no specific averments in the plaint which are required asper section 16(c) of the Act. The High Court has also allowed the appealand consequently dismissed the suit for specific performance on theground that the relief of specific performance is the discretionary reliefunder Section 20 of the Act and that even though the execution of theagreement to sell is proved and even the plaintiff was found to be alwaysready and willing to perform his part of the obligation under the agreementto sell, the decree of specific performance is not automatic and suchgrant of decree is dependent upon the principles of justice, equity andgood conscience.

6. Now, so far as the observations made by the High Court onnon-compliance of the provision of Section 16(c) of the Act is concerned,having gone through the necessary averments in the plaint it cannot besaid that the averments / pleadings lack the requirement of Section 16(c)of the Act. The necessary averments and pleadings on readiness andwillingness read as under:

“2. That when two years were about to complete, the defendantrequested the plaintiff to extend the date till 31.10.1981 and alsotook Rs.8000/- out of the balance money. Defendant No.1 is thefather-in-law of the plaintiff and for that reason, the plaintiff wasready to give all kinds of accommodations to him. Plaintiff gavefurther Rs.8000/- to the defendant No.1 on 30.09.1978 and thetime period for the execution between the plaintiff and thedefendant No.1 was extended to 31.10.1981. The defendant No.1got this agreed date written legally and appended his thumbimpression on it and gave it to the plaintiff.

3. That even by 31.10.1981, the defendant no.1 could not get hisland cleared of the loan from the bank because his brother Ranjeet ABC

DE

F

G

H

A

B

C

D

E

F

G

H

Singh was also involved in that loan and he did not want to givehis share of money completely and for this reason, the defendantNo.1 requested to further increase the time period for the executionso that the bank loan could be cleared and the land gets free fromall liabilities and the same could be executed and registered in thename of the plaintiff. For the reason of the relation and also thatthere was too much of love and affection between the defendantNo.1 and the wife of the plaintiff who is the daughter of thedefendant No.1, the plaintiff agreed to accommodate the defendantNo.1 in all manner and for this reason, plaintiff accepted the prayerof the defendant No.1 and extended the date for execution andregistration till 31.10.1984 and also gave Rs.7000/- out of thebalance amount of money to the defendant No.1. In this manner,out of the total amount of Rs.56,000/- agreed for the land, Rs.40,000/- had already reached the defendant No.1 and only Rs.16,000/-was balance to be paid by the plaintiff. The defendant No.1 alsogave this in writing on 29.09.1981 to the plaintiff.

4. That the plaintiff has always been and even today, ready andwilling to get the sale deed executed and registered and performhis part of the agreement in terms of its terms and conditions andthe same is in complete knowledge of the defendant No.1.

8. That the plaintiff even got the notice served through registeredpost by Sh. Mahesh Chandra Chaturvedi, Advocate in respect ofthe abovementioned agreement and gave him the warning that hewould not get the execution and registration done in the name ofany other person than the plaintiff. In hurry, there were somemistakes that occurred in the notice.

11. That it was told to the defendant No.1 to come to the Sub-Registrar’s office at Chatta and in respect of the abovementionedagreement, execute and register the disputed land in the name ofthe plaintiff and also give the possession of the same and also toldto the defendants No.2 – 5 that because they got the false saledeed registered in their favour, they should also get involved withthe defendant No.1 in the execution and registration in the favourof the plaintiff. But the defendant No.1 said that because thedefendants No.2 – 5 and their father are denying him and that hecannot go against their wished, he cannot do the execution and registration and the defendants No.2 – 5 also denied to do or getinvolved with defendant No.1 to do the execution and registrationand for this reason, the plaintiff is forced to institute the presentsuit.”

6.1 Even in the deposition it was the specific case on behalf of theplaintiff that he paid initially Rs.25,000/- as part sale consideration andthe sale deed was to be executed within a period of two years. That,thereafter, the period was extended on the prayer of Ram Singh who assuch was the father-in-law of the plaintiff. The time period was extendedtill 31.10.1984 and then the plaintiff paid a further sum of Rs.7000/- toRam Singh for which also the document was executed. Thus, from timeto time, a total sum of Rs.40,000/- was paid out of the total saleconsideration of Rs.56,000/-. As per the last document executed whichhas been held to be proved even by all the Courts below, the balanceamount of Rs.16,000/- was to be paid at the time of execution of saledeed. It is specifically stated in the deposition that he was ready andwilling to perform his part of the obligation in terms of agreement to selland this fact was known to Ram Singh. Considering the aforesaid factsand circumstances, the High Court has committed a grave error in holdingthe issue with respect to readiness and willingness against the plaintiffsolely on the ground that there are no specific averments / pleadings inthe plaint as required under Section 16(c) of the Act. Considering thefact that initially payment of Rs.25,000/- was made at the time ofexecution of the agreement to sell and further sum of Rs.15,000/- in twoinstallments were paid at the time when the subsequent two documentswere executed for extension of time and even the time was extended atthe instance of defendant No.1 and the balance amount of Rs.16,000/-was to be paid at the time of execution of the sale deed, it can safely besaid that the plaintiff was always ready and willing to perform his part ofthe contract under the agreement to sell.

At this stage, the decision of this Court in the case of SyedDastagir (supra) on pleadings as required under Section 16(c) of theSpecific Relief Act on readiness and willingness to perform essentialterms of the contract is required to be referred to. In the case beforethis Court, the short question raised was, how to construe a plea of“readiness and willingness to perform” to subserve to the requirementof Section 16(c) of the Specific Relief Act and the interpretation of itsexplanation. In paragraph 9, it is observed and held as under:

A

BCDEF

G

H

A

BCDEF

G

H

A“9. So the whole gamut of the issue raised is, how to construe aplea specially with reference to Section 16(c) and what are theobligations which the plaintiff has to comply with in reference tohis plea and whether the plea of the plaintiff could not be construedto conform to the requirement of the aforesaid section, or doesthis section require specific words to be pleaded that he hasBperformed or has always been ready and is willing to perform hispart of the contract. In construing a plea in any pleading, courtsmust keep in mind that a plea is not an expression of art andscience but an expression through words to place fact and law ofone’s case for a relief. Such an expression may be pointed, precise,Csometimes vague but still it could be gathered what he wants toconvey through only by reading the whole pleading, depending onthe person drafting a plea. In India most of the pleas are draftedby counsel hence the aforesaid difference of pleas which inevitablydiffer from one to the other. Thus, to gather true spirit behind aplea it should be read as a whole. This does not distract one fromDperforming his obligations as required under a statute. But to testwhether he has performed his obligations, one has to see the pithand substance of a plea. Where a statute requires any fact to bepleaded then that has to be pleaded maybe in any form. The sameplea may be stated by different persons through different words;Ethen how could it be constricted to be only in any particularnomenclature or word. Unless a statute specifically requires aplea to be in any particular form, it can be in any form. No specificphraseology or language is required to take such a plea. Thelanguage in Section 16(c) does not require any specific phraseologybut only that the plaintiff must aver that he has performed or hasFalways been and is willing to perform his part of the contract. Sothe compliance of “readiness and willingness” has to be in spiritand substance and not in letter and form. So to insist for amechanical production of the exact words of a statute is to insistfor the form rather than the essence. So the absence of formGcannot dissolve an essence if already pleaded.”

7. Even otherwise it is required to be noted that as such therewere concurrent findings of fact recorded by the learned Trial Court aswell as the learned First Appellate Court on readiness and willingness onthe part of the plaintiff, which were on appreciation of evidence on record.HTherefore, in exercise of powers under Section 100 of the CPC the High Court ought not to have interfered with such findings of fact unlesssuch findings are found to be perverse. Having gone through the findingsrecorded by the learned Trial Court as well as the learned First AppellateCourt on readiness and willingness on the part of the plaintiff, we are ofthe opinion that findings recorded cannot be said to be perverse and/orcontrary to the evidence on record. On the contrary High Court hasignored the necessary aspects on readiness and willingness which arestated hereinabove including the conduct on the part of the parties.

8. Even the observations made by the High Court that Forms 47and 48 of the Appendix A to the CPC provide for making an avermentthat the plaintiff has been “and still is ready and willing specifically toperform the agreement on his part” or that “the plaintiff is still ready andwilling to pay the purchase money of the said property to the defendant”and that “there is non-compliance of Section 16(c) of the Specific ReliefAct and the plaint does not even contain any averment that the plaintiffever required defendant no.1 to attend the office of the Sub-Registrar toexecute the sale deed within time agreed are too technical in the factsand circumstances of the case. The overall circumstances and theconduct on the part of the parties are relevant consideration for thepurpose of deciding the aforesaid issues and the prayer of the plaintiff inwhose favour the execution of the agreement to sell has been held to beproved. The High Court has given unnecessary stress on the word “still”.

9. Even while proving the readiness and willingness the plaintiff isnot required to make any averment that the plaintiff required executantof the agreement to sell to attend the office of the Sub-Registrar toexecute the sale deed within the time agreed. Even as held by this Courtin the case of C.S. Venkatesh Vs A.S.C. Murthy (Dead) By Lrs.and Ors. reported in (2020) 3 SCC 280 to adjudge whether the plaintiffis ready and willing to perform his part of contract, the Court must takeinto consideration the conduct of the plaintiff prior and subsequent tofiling of the suit alongwith other attending circumstances in a particularcase. It is also further observed that whether the plaintiff was ready andwas always ready to perform his part of contract may be inferred fromthe facts and circumstances of a particular case. It is further observedthat it is not necessary for the plaintiff to produce ready money but it ismandatory on his part to prove that he has means to generateconsideration amount. In the present case even it was not the case onbehalf of the defendants and even there is no finding by the High Court ABCDE

F

G

H

Athat the plaintiff was not having any means to generate considerationamount. It is required to be noted that as per the last extension and thedocument executed the balance amount of sale consideration i.e.Rs.16,000/- was to be paid at the time of execution of the sale deed andearlier out of Rs.56,000/- of total sale consideration, Rs.40,000/- wasalready paid and there were two extensions at the instance of the originalBdefendant No.1 who was his father-in-law.

10. Now, so far as the finding recorded by the High Court and theobservations made by the High court on Section 20 of the Act and theobservation that even if the agreement is found to be duly executed andthe plaintiff is found to be ready and willing to perform his part of theCAgreement, grant of decree of specific performance is not automaticand it is a discretionary relief is concerned, the same cannot be acceptedand/or approved. In such a case, many a times it would be giving apremium to the dishonest conduct on the part of the defendant / executantof the agreement to sell. Even the discretion under Section 20 of the ActDis required to be exercised judiciously, soundly and reasonably. Theplaintiff cannot be punished by refusing the relief of specific performancedespite the fact that the execution of the agreement to sell in his favourhas been established and proved and that he is found to be always readyand willing to perform his part of the contract. Not to grant the decree ofspecific performance despite the execution of the agreement to sell isEproved; part sale consideration is proved and the plaintiff is always readyand willing to perform his part of the contract would encourage thedishonesty. In such a situation, the balance should tilt in favour of theplaintiff rather than in favour of the defendant – executant of theagreement to sell, while exercising the discretion judiciously.FFor the aforesaid, even amendment to the Specific Relief Act,1963 by which section 10(a) has been inserted, though may not beapplicable retrospectively but can be a guide on the discretionary relief.Now the legislature has also thought it to insert Section 10(a) and nowthe specific performance is no longer a discretionary relief. As such theGquestion whether the said provision would be applicable retrospectivelyor not and/or should be made applicable to all pending proceedingsincluding appeals is kept open. However, at the same time, as observedhereinabove, the same can be a guide.

10.1 Even otherwise it is required to be noted that as such onHapplicability of Section 20 of the Act, no issue was framed either by the learned Trial Court or by the learned First Appellate Court or even bythe High Court. The same has been dealt with by the High Court for thefirst time in a Second Appeal under Section 100 of the CPC. Evenotherwise no cogent reasons have been given as to why the decree ofspecific performance shall not be passed in favour of the plaintiff.

11. Now, so far as the submission on behalf of the defendantNos.2 to 5 that the agreement to sell was executed long back and thatdefendant Nos.2 to 5 are in possession of the suit property / land sincemany years and if the suit is decreed, in that case, they will have tovacate the suit land and therefore, the discretion may be exercised infavour of defendant Nos.2 to 5 while declining the decree of specificperformance in favour of the plaintiff is concerned, the aforesaid cannotbe accepted in the facts and circumstances of the case narratedhereinabove. There are concurrent findings of fact recorded by the Courtsbelow that the defendant Nos.2 to 5 were in knowledge of the agreementto sell in favour of the plaintiff; despite the same they purchased the suitland surreptitiously. Even the sale consideration mentioned in the saledeed in their favour is found to be doubtful. Apart from the same, for allthese years the defendant Nos.2 to 5 cultivated the suit land and enjoyedthe fruits while in possession. On the contrary the balance must tilt infavour of the plaintiff as plaintiff is deprived of the possession for allthese years because of the long-drawn litigation. The learned trial Courtpassed the decree as far as back on 07.02.1987 but because of theappeal before the learned First Appellate Court and thereafter, SecondAppeal before the High Court and thereafter a remand order by theHigh Court and again the decision by the learned First Appellate Courtand thereafter by the High court and the proceeding before this Court,huge time has lapsed, which cannot be to the disadvantage of the plaintiff.

12. In view of the above and for the reasons stated hereinabove,the impugned judgment and order 09.09.2010 passed by the High Courtin Second Appeal No.836/2010 is unsustainable and same deserves tobe quashed and set aside and is, accordingly, quashed and set aside. Thejudgment and decree dated 07.02.1987 passed by the learned Civil Judge,Mathura City, Mathura in Civil Suit No.254 of 1984 is hereby restoredand the suit is decreed and there shall be a decree for specificperformance of the agreement to sell dated 10.10.1976 in favour of theplaintiff. The defendants – heirs and legal representatives of defendantNo.1 as well as defendant Nos.2 to 5 to execute the sale deed in favour A

BC

D

E

F

G

H

Aof the plaintiff within a period of four weeks from today and hand overthe peaceful and vacant possession of the suit land to the appellant –original plaintiff within a period of four weeks from today.

Appeal is allowed accordingly. No costs.

B

Devika Gujral

Appeal allowed.

C

D

E

F

G

H