MEHBOOB-UR-REHMAN (DEAD) THROUGH LRS. versus AHSANUL GHANI on 15 February 2019

MEHBOOB-UR-REHMAN (DEAD) THROUGH LRS.

v.

AHSANUL GHANI

(Civil Appeal No. 8199 of 2009)

FEBRUARY 15, 2019

[ABHAY MANOHAR SAPRE AND

DINESH MAHESHWARI, JJ.]

Specific Relief Act, 1963: ss. 14 and 16 – Relief of specificperformance – Personal bars to the relief – Suit for specificperformance of agreement for sale of property by plaintiff againstthe defendant – Decreed by the trial court, however, set aside bythe first appellate court holding that the plaintiff failed to aver andprove his continuous readiness and willingness to perform his partof contract – First appellate court also rejected the plaintiff’sapplication seeking leave to amend the plaint – Second appeal bythe plaintiff – Dismissed by the High Court – On appeal, held:Plaintiff failed to aver and prove his readiness and willingness toperform his part of the contract – Plaintiff sought leave to amendthe plaint only when the ground to that effect was taken in the firstappeal by the defendant – Late attempt to improve upon the pleadingsof the plaint at the appellate stage was only an exercise in futility –Moreover, the High Court rightly pointed out that no substantialquestion of law as regards the correctness of the order refusing theapplication for amendment was formulated – Also, no strong andconvincing reason existed to formulate and hear the second appealon any other question of law – Thus, the relief of specificperformance of agreement rightly rejected by the first appellatecourt and the High Court – Code of Civil Procedure, 1908 – s. 100,100(5).

Dismissing the appeal, the Court

HELD : 1.1 The High Court and the First Appellate Courtrightly held that in the instant suit, specific performance of theagreement cannot be enforced in favour of the plaintiff-appellantfor want of proof of his continuous readiness and willingnessto perform his part of the essential terms of the contract.[Para 12][178-D-E]

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A1.2 The relief of specific performance is not that of commonlaw remedy but is essentially an exercise in equity. Therefore, inthe Specific Relief Act, 1963, even while providing for variousfactors and parameters for specific performance of contract, theprovisions are made regarding the contracts which are notspecifically enforceable as also the persons for or against whomBthe contract may be specifically enforced. In this scheme of theAct, Section 16 thereof provides for personal bars to the relief ofspecific performance. [Para 13][178-E-F]

1.3 Though, with the amendment of the Specific ReliefAct, 1963, the expression “who fails to aver and prove” isCsubstituted by the expression “who fails to prove” and theexpression “must aver” stands substituted by the expression“must prove” but then, the position on all the material aspectsremains the same that, specific performance of a contract cannotbe enforced in favour to the person who fails to prove that he hasDalready performed or has always been ready and willing to performthe essential terms of the contract which are to be performed byhim, other than the terms of which, the performance has beenprevented or waived by the other party. As per the law applicableat the relevant time, it was incumbent for the plaintiff to take thespecific averment to that effect in the plaint. Such requirement ofEtaking the necessary averment was not a matter of form and nospecific phraseology or language was required to take such a plea.However, and even when mechanical reproduction of the wordsof statue was not insisted upon, the requirement of such pleadingbeing available in the plaint was neither waived nor even whittledFdown. [Para 14][179-C-F]

1.4 The requirement, of necessary averment in the plaint,that he has already performed or has always been ready and willingto perform the essential terms of the contract which are to beperformed by him being on the plaintiff, mere want of objectionGby the defendant in the written statement is hardly of any effector consequence. The essential question to be addressed to bythe Court in such a matter has always been as to whether, bytaking the pleading and the evidence on record as a whole, theplaintiff has established that he has performed his part of thecontract or has always been ready and willing to do so.H[Para 15][180-B-C]

1.5 There is not even a remote suggestion in the plaintaverments that the plaintiff had performed or has always beenready and willing to perform his part of the contract. Even in theplaintiff’s testimony, it is difficult to find a categorical assertionthat he had performed or has always been ready and willing toperform his part of the contract. The testimony of the plaintiff isessentially directed towards the existence and validity of thealleged agreement and the surrounding dealings of the parties;but is lacking in those material assertions on readiness andwillingness on his part, which remain essential for grant of therelief of the specific performance. Thus, no fault is found in thefindings of the High Court that the plaintiff had failed to aver andprove his continuous readiness and willingness to perform his part of the contract. [Para 16 and 17][181-C-E]

Umabai and another v. Nilkanth Dhondiba Chavan(Dead) by LRS. and another (2005) 6 SCC 243 : [2005]3 SCR 521 ; A. Kanthamani v. Nasreen Ahmed (2017)4 SCC 654 : [2017] 2 SCR 610; Syed Dastagir v.T.R.Gopalakrishna Setty (1999) 6 SCC 337 : [1999] 1Suppl. SCR 351 ; Aniglase Yohannan v. Ramlatha andOrs (2005) 7 SCC 534 : [2005] 3 Suppl. SCR 440 –referred to.

2. As regards, amendment of the plaint, no illegality isfound on the part of the first appellate court and the High Courtin rejecting the prayer belatedly made by the plaintiff. Theaverment and proof on readiness and willingness to perform hispart of the contract has been the threshold requirement for aplaintiff who seeks the relief of specific performance. The principlethat the requirement of such averment had not been a matter ofform, applied equally to the proposition for amendment at thelate stage whereby, the plaintiff only attempted to somehowimprove upon the form of the plaint and insert only thephraseology of his readiness and willingness. In such a suit forspecific performance, the Court would be, and had always been,looking at the substance of the matter if the plaintiff, by hisconduct, has established that he is unquestionably standing withthe contract and is not wanting in preparedness as also willingnessto perform everything required of him before he could be granteda relief whereby, the performance of other part of the contract AB

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Acould be enjoined upon the defendant. In the instant case, theplaintiff-appellant had failed to aver and prove his readiness andwillingness to perform his part of the contract. The trial courtmade a rather assumptive observation that he had proved suchreadiness and willingness. Thereafter, the plaintiff sought leaveto amend the plaint only when the ground to that effect was takenBin the first appeal by the defendant. In the facts and circumstancesof the instant case, it was too late in the day for the plaintiff to fillup such a lacuna in his case only at the appellate stage. In otherwords, the late attempt to improve upon the pleadings of theplaint at the appellate stage was only an exercise in futility in theCinstant case. Moreover, the High Court rightly pointed out thatno substantial question of law as regards the correctness of theorder refusing the application for amendment was formulated.[Para 18, 19][181-F-H, 182-A-D]

Issues

3.1 In the scheme of the provisions relating to secondDappeal, it remains fundamental, as per Section 101 CPC, that nosecond appeal would lie except on the ground mentioned inSection 100. As per Section 100, the appeal would lie to the HighCourt from the decree passed in appeal by any Court subordinateonly if the High Court is satisfied that the case involves a substantial question of law; such question is required to be statedEin the Memorandum of Appeal; the High Court is required toformulate the question on being satisfied that the same is involvedin the case; the appeal is to be heard on the question soformulated; and at the time of hearing, the respondent could urgethat the case does not involve such a question. The proviso toFsub-section (5) of Section 100 makes it clear that the Court couldhear the appeal on any other substantial question of law notformulated by it, but only after recording the reasons that thecase involves such a question. [Para 19, 20][182-D, 183-C-D]

Surat Singh (Dead) v. Siri Bhagwan and Ors. (2018) 4

SCC 562 : [2018] 1 SCR 1063 – referred to.G3.2 The proviso to sub-section (5) of Section 100 CPC isnot intended to annul the other requirements of Section 100 andit cannot be laid down as a matter of rule that irrespective of thequestion/s formulated, hearing of the second appeal is open forany other substantial question of law, even if not formulated earlier.HThe said proviso, by its very nature, could come into operation A

only in exceptional cases and for strong and convincing reasons,to be specifically recorded by the High Court. There being nosuch strong and convincing reason in the present case to formulateand hear the second appeal on any other question of law, theHigh Court cannot be faulted in rejecting the contentionsurged on behalf of the plaintiff-appellant in this regard.[Para 21][183-G-H, 184-A-B]

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CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 8199of 2009

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From the Judgment and Order dated 10.12.2007 of the HighCourt of Judicature at Allahabad in Second Appeal No. 931 of 1995.

Syed Mehdi Imam, Ms. Shamama A., Atif Suhrawardy, TabrezAhmed, Advs. for the Appellants.

M. M. Kashyap, Adv. for the Respondent.

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The Judgment of the Court was delivered by DINESH MAHESHWARI, J.

1. The appellant herein (since deceased and represented by hislegal representatives) had filed the suit for specific performance ofAgreement to Sell, being O.S. No. 392 of 1979, that was decreed by theCourt of II Additional Civil Judge, Kanpur Nagar by the judgment anddecree dated 10.12.1981. However, the decree so passed by the TrialCourt was reversed by the Court of IX Additional District Judge, KanpurNagar in its judgment and decree dated 03.07.1995 in Appeal No.54 of1982, essentially on the ground that the plaintiff had failed to aver andprove his continuous readiness and willingness to perform his part of thecontract. The High Court of Judicature at Allahabad, in its impugnedjudgment dated 10.12.2007 in R.S.A. No. 931 of 1995, while dismissingthe second appeal filed by the plaintiff-appellant, affirmed the decreepassed by the First Appellate Court. Aggrieved, the plaintiff-appellanthas preferred this appeal.

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A2. Briefly put, the relevant background aspects of the matterare that on 13.08.1979, the plaintiff-appellant filed the suit aforesaid withthe averments that the defendant-respondent had executed an agreementdated 16/17.04.1975 in his favour for sale of the property in question,being House Number 102 at Faithful Ganj, Kanpur Nagar, for aconsideration of Rs. 30,000/-; and that a sum of Rs. 15,000/- was paidBas earnest money while the remaining amount was payable at the timeof execution and registration of the sale deed. The plaintiff-appellantfurther averred that after the agreement, the Urban Land (Ceiling andRegulation) Act, 1976 came to be promulgated prohibiting transfer ofthe property without permission of the Competent Authority; and theCdefendant-respondent was required to obtain such permission but failedto do so despite requests. The plaintiff-appellant yet further averred thaton 06.05.1979, he served a notice on the defendant-respondent forobtaining permission from the Ceiling Authorities and for execution ofthe sale deed to which, the defendant-respondent sent a reply dated06.07.1979 stating ignorance about the agreement and sought a copyDthereof for proper reply while alleging that his signatures were obtainedon some papers in relation to a suit filed by the State Bank of India. Theplaintiff-appellant stated that these were the false pretexts taken by thedefendant who was bound to execute the sale deed for the house inquestion after seeking necessary permission; and for him having failedEto do so, the suit was being filed for enforcing specific performance ofthe agreement.

3. The defendant-respondent, while denying the plaint averments,inter alia, alleged that he was involved as a guarantor in relation to theloan taken by a firm M/s Adam Textiles from the State Bank of Indiaand his house in question was hypothecated to the said bank; and whenFthe bank threatened to take action against him, the plaintiff, who wasknown to him, assured of contesting the matter on his behalf and persuadedhim to hand over possession of the house in question on rental basis. Thedefendant 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, hisGsignatures were obtained on blank papers on which, some documentwas fabricated; and that the copy of the alleged agreement was neversupplied to him despite demand. The defendant also took the objectionsregarding limitation, valuation and court fees.

MEHBOOB-UR-REHMAN (D) THR. LRS. v. AHSANUL GHANI[DINESH MAHESHWARI, J.]

4. On the pleading of parties, the Trial Court framed the followingissues 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 ofW.S.?

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

5. After taking the evidence and having heard the parties, theTrial 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 fromthe Urban Ceiling Authorities and he having not done so, the suit waswithin time; that the defendant refused to honour his commitment in theletter 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, thesame was well within limitation; that by way of his testimony as PW-1and with the help of the notice dated 06.05.1979 (Exhibit 3), the plaintiffsucceeded to prove that he was always ready and willing to perform hispart of agreement; that the agreement was neither forged nor obtainedby fraud or mis-representation; and that in his reply notice dated06.07.1979 (Exhibit A-12), the defendant did not challenge the existenceof agreement.

6. While challenging the decree of the Trial Court, the defendantraised the grounds in the first appeal, inter alia, that the finding of theTrial Court that the plaintiff was ready and willing to perform his part ofagreement was perverse and for want of necessary averments, the suitought to have been dismissed.

7. As per the law applicable at the relevant point of time, thesaid first appeal was filed in the High Court and the plaintiff, whileappearing in the said appeal as respondent, moved an application seekingleave to amend the plaint whereupon, the High Court passed the orderdated 29.07.1982 that the application for amendment would be decidedat the time of final hearing of the appeal. Later on, in view of alterationof jurisdiction, the appeal was transmitted by the High Court to the DistrictCourt and was ultimately assigned to the IX Additional District Judge,Kanpur Nagar as Appeal No. 54 of 1982. On 28.02.1995, the FirstAppellate Court rejected the plaintiff’s application seeking leave to amend

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Athe plaint and thereafter, allowed the appeal on 25.04.1995 while holdingthat the plaintiff had failed to take the necessary averments in the plainton his readiness and willingness to perform his part of the contract.8. The second appeal preferred by the plaintiff-appellant againstthe judgment and decree so passed by the First Appellate Court wasadmitted by the High Court on the following substantial questions ofBlaw:- “(i) Whether lower appellate court is justified indismissing the suit for non-compliance of provisionsof Section 14 and 16 of Specific Relief Act withoutany pleading and/or issue on the said point?

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(ii) Whether the Lower Appellate Court ought to haveframed the issues if relevant and ought to haveremitted it to Trial Court?”

9. The High Court, in its impugned judgment dated 10.12.2007,Dexamined in detail the contentions of the parties and law applicable tothe case, particularly with reference to Section 16 of the Specific ReliefAct, 1963 (hereinafter also referred to as ‘the Act’) and several decisionsof this Court including that in Umabai and another vs. NilkanthDhondiba Chavan (Dead) by LRS. and another : (2005) 6 SCC243, and rejected the contentions urged on behalf of the plaintiff-appellantEwhile observing as under:-

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

The contention of the learned counsel for the appellant thatthe defendant also did not raise such a plea does not help theGplaintiff-appellant because under Section 16 (c) of the Act isfor the plaintiff to aver and prove this fact. This is what wasobserved by the Supreme Court in Umabai (supra). The TrialCourt, while deciding issue No. 5 merely observed that certainsections of the Act including section 16(c) of the Act was notapplicable because the plaintiff has been ready and willingHto 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. Ithas observed that under the alleged agreement dated 16/17-4-1975 permission was required to be taken within one monthof the agreement and then the sale-deed was required to beexecuted but the plaintiff not only failed to make any specificaverment in the plaint about readiness and willingness butalso failed to prove the same. In the light of the discussionmade above, the finding recorded by the Lower AppellateCourt is correct.”

10. The contention on behalf of the plaintiff-appellant that theFirst Appellate Court was not justified in rejecting the application foramendment was also negatived by the High Court with the followingobservations:- “The Lower Appellate Court by a detailed order had rejectedthe application filed at the belated stage for amending theplaint by adding a relief about readiness and willingness. Atthe time of the admission of the Second Appeal, the Court didnot formulate any substantial question of law as to whetherthe amendment application had been illegally rejected. Thisplea, therefore, cannot be considered at the time of hearingof the Second Appeal. However, even otherwise there is noinfirmity in the order rejecting the amendment application asit had been moved with a considerable delay and wouldinvolve a retrial as evidence would have to be led by theparties on this issue.”

11. Assailing the judgment of the High Court, learned counsel forthe appellant has strenuously argued that in the absence of any objectionin the written statement regarding non-compliance of Section 16(c) ofthe Act and without any issue to that effect, the First Appellate Courtand the High Court were not justified in non-suiting the appellant only onthe ground of the so called want of pleading on readiness and willingness.Learned counsel would submit that for the purpose of Section 16(c) ofthe Act, while examining the question regarding readiness and willingnessof the plaintiff to perform his part of the contract, the Court is requiredto see the pith and substance of the entire pleadings and evidence andnot just the letter and form; and on the substance of the matter, suchreadiness and willingness is duly proved on record. Learned counselwould also argue that there was no justification in rejection of the AB

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Aapplication for amendment, if at all any question regarding averment onreadiness and willingness was being raised; and for substantial justicebetween the parties, such an amendment ought to have been allowed.In this regard, learned counsel has also argued with reference to provisoto 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 matterBhad not been formulated at the time of admission of appeal, the samecould have been formulated and decided by the High Court for ensuringsubstantial justice; and in the present case, the High Court has wronglyconfined itself only to the questions formulated at the time of admission,while putting the matter in a strait jacket. Per contra, learned counselCfor the defendant-respondent has duly supported the judgment of theHigh Court with the submissions that the plaintiff-appellant having failedto establish his readiness and willingness to perform his part of the allegedagreement, the suit has rightly been dismissed.

12. Having bestowed anxious consideration to the rivalsubmissions and having examined the record with reference to the lawDapplicable, we are inclined to agree with the High Court that, in thepresent suit, specific performance of the agreement in question cannotbe enforced in favour of the plaintiff-appellant for want of proof of hiscontinuous readiness and willingness to perform his part of the essentialterms of the contract.E13. It remains trite that the relief of specific performance is notthat of common law remedy but is essentially an exercise in equity.Therefore, in the Specific Relief Act, 1963, even while providing forvarious factors and parameters for specific performance of contract,the provisions are made regarding the contracts which are not specificallyenforceable as also the persons for or against whom the contract mayFbe specifically enforced. In this scheme of the Act, Section 16 thereofprovides for personal bars to the relief of specific performance. Clause(c) of Section 16 with the explanation thereto, as applicable to the suit inquestion, had been as follows:- “16. Personal bars to relief.- Specific performance of aGcontract cannot be enforced in favour of a person-(a) *********(b)*********(c) [who fails to aver and prove][1] that he has performedor has always been ready and willing to perform the 1By Act No. 18 of 2018, the expression “who fails to aver and prove” is substituted byHthe expression “who fails to prove”

essential terms of the contract which are to be performedby him, other than terms the performance of which hasbeen prevented or waived by the defendant.

Explanation:—For the purpose of clause (c),—

(i) where a contract involves the payment of money, itis not essential for the plaintiff to actually tender to thedefendant or to deposit in court any money except whenso directed by the court;

(ii) the plaintiff [must aver][2] performance of, orreadiness and willingness to perform, the contractaccording 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 andprove” is substituted by the expression “who fails to prove” and theexpression “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 theperson who fails to prove that he has already performed or has alwaysbeen ready and willing to perform the essential terms of the contractwhich are to be performed by him, other than the terms of which, theperformance has been prevented or waived by the other party. As perthe law applicable at the relevant time, it was incumbent for the plaintiffto take the specific averment to that effect in the plaint. Of course, itwas made clear by this Court in several decisions[3], that such requirementof taking the necessary averment was not a matter of form and nospecific phraseology or language was required to take such a plea.However, and even when mechanical reproduction of the words of statuewas not insisted upon, the requirement of such pleading being availablein the plaint was neither waived nor even whittled down. In the case ofA. Kanthamani v. Nasreen Ahmed: (2017) 4 SCC 654, even whileapproving the decree for specific performance of the agreement on facts,this Court pointed out that the requirement analogous to that containedin Section 16(c) of the Specific Relief Act, 1963 was read in its forerunneri.e., the Specific Relief Act, 1877 even without specific provision to thateffect. Having examined the scheme of the Act and the requirements ofCPC, this Court said,- 2By the same Act No. 18 of 2018, the expression “must aver” is substituted by theexpression “must prove”

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

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

15. Such a requirement, of necessary averment in the plaint,Bthat he has already performed or has always been ready and willing toperform the essential terms of the contract which are to be performedby him being on the plaintiff, mere want of objection by the defendant inthe written statement is hardly of any effect or consequence. Theessential question to be addressed to by the Court in such a matter hasalways been as to whether, by taking the pleading and the evidence onCrecord as a whole, the plaintiff has established that he has performed hispart of the contract or has always been ready and willing to do so. In thisregard, suffice it would be to refer to the principles enunciated by thisCourt in the case of Umabai (supra) as under:- “30. It is now well settled that the conduct of the parties,Dwith a view to arrive at a finding as to whether theplaintiff respondents were all along and still are readyand willing to perform their part of contract as ismandatorily required under Section 16 (c) of the SpecificRelief Act must be determined having regard to the entireattending circumstances. A bare averment in the plaintEor a statement made in the examination-in-chief wouldnot suffice. The conduct of the plaintiff-respondents mustbe judged having regard to the entirety of the pleadingsas also the evidences brought on records.

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F45. It was for the plaintiff to prove his readiness andwillingness to pay the stipulated amount and it was notfor the appellants to raise such question…”

16. When the pleadings in the present case are examined withreference to the principle aforesaid, it is but apparent that in the plaint,Gthe plaintiff referred to the agreement in question whereby, the defendanthad allegedly agreed to sell the house in question to him for a saleconsideration of Rs. 30,000/- and averred that the defendant received asum of Rs. 15,000/- from him. The plaintiff stated that the agreementwas executed on 16/17.04.1975. Thereafter, the plaintiff straight awayreferred to the fact that subsequent to the execution of agreement, theH

Urban Land (Ceiling and Regulation) Act, 1976 was promulgated; andSection 27 thereof prohibited transfer of property without prior permissionof the Competent Authority. The plaintiff further averred that he servednotice dated 06.05.1979 on the defendant asking him to seek permissionand to execute the sale deed; that the notice was personally served onthe defendant on 17.05.1979; and that the defendant in his reply dated06.07.1979, feigned ignorance about the agreement. The plaintiff furtheraverred that the defendant was bound to execute the sale deed of thehouse after seeking necessary permission and for the defendant havingfailed to do so, the suit was being filed. There is not even a remotesuggestion in the plaint averments that the plaintiff had performed or hasalways been ready and willing to perform his part of the contract. Evenin the plaintiff’s testimony as PW-1, it is difficult to find a categoricalassertion that he had performed or has always been ready and willing toperform his part of the contract. The testimony of the plaintiff as PW-1is essentially directed towards the existence and validity of the allegedagreement and the surrounding dealings of the parties; but is lacking inthose material assertions on readiness and willingness on his part, whichremain essential for grant of the relief of the specific performance.

17. In the above set of circumstances, we are unable to find anyfault in the findings of the High Court that the plaintiff had failed to averand prove his continuous readiness and willingness to perform his partof the contract. The suit was bound to fail on this ground alone.

18. So far as the proposition for amendment of the plaint isconcerned, we are unable to find any illegality on the part of the FirstAppellate Court and the High Court in rejecting the prayer belatedlymade by the plaintiff. As noticed, the averment and proof on readinessand willingness to perform his part of the contract has been the thresholdrequirement for a plaintiff who seeks the relief of specific performance.The principle that the requirement of such averment had not been amatter of form, applied equally to the proposition for amendment at thelate stage whereby, the plaintiff only attempted to somehow improveupon the form of the plaint and insert only the phraseology of his readinessand willingness. In such a suit for specific performance, the Court wouldbe, and had always been, looking at the substance of the matter if theplaintiff, by his conduct, has established that he is unquestionably standingwith the contract and is not wanting in preparedness as also willingnessto perform everything required of him before he could be granted a AB

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Arelief whereby, the performance of other part of the contract could beenjoined upon the defendant. In the present case, the plaintiff-appellanthad failed to aver and prove his readiness and willingness to perform hispart of the contract. The Trial Court made a rather assumptiveobservation that he had proved such readiness and willingness. Thereafter,the plaintiff sought leave to amend the plaint only when the ground toBthat effect was taken in the first appeal by the defendant. In the factsand circumstances of the present case, in our view, it was too late in theday for the plaintiff to fill up such a lacuna in his case only at the appellatestage. In other words, the late attempt to improve upon the pleadings ofthe plaint at the appellate stage was only an exercise in futility in the Cpresent case.

19. Moreover, the High Court has pointed out, and rightly so,that no substantial question of law as regards the correctness of theorder refusing the application for amendment was formulated. In thescheme of the provisions relating to second appeal, it remains fundamental,Das per Section 101 CPC, that no second appeal would lie except on theground mentioned in Section 100. Sections 100 and 101 of the Code ofCivil Procedure read as under:- “100. Second Appeal.- (1) Save as otherwise expresslyprovided in the body of this Code or by any other law forthe time being in force, an appeal shall lie to the HighECourt from every decree passed in appeal by any Courtsubordinate to the High Court, if the High Court is satisfiedthat the case involves a substantial question of law.

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

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

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

(5) The appeal shall be heard on the question so formulatedand the respondent shall, at the hearing of the appeal, beallowed to argue that the case does not involve suchquestion:

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

101. Second appeal on no other grounds.-No second appealshall lie except on the grounds mentioned in Section 100.”20. As per Section 100 CPC, the appeal would lie to the HighCourt from the decree passed in appeal by any Court subordinate only ifthe High Court is satisfied that the case involves a substantial questionof law; such question is required to be stated in the Memorandum ofAppeal; the High Court is required to formulate the question on beingsatisfied that the same is involved in the case; the appeal is to be heardon the question so formulated; and at the time of hearing, the respondentcould urge that the case does not involve such a question. The proviso tosub-section (5) of Section 100 CPC makes it clear that the Court couldhear the appeal on any other substantial question of law not formulatedby it, but only after recording the reasons that the case involves such aquestion. In the case of Surat Singh (Dead) v. Siri Bhagwan andOrs.: (2018) 4 SCC 562 this Court has pointed out the contours of thepowers of High Court under the proviso to sub-section (5) of Section100 CPC as under:- “21……… The proviso to sub-section (5), however, alsorecognises the power of the High Court to hear the appealon any other substantial question of law which was notinitially framed by the High Court under sub-section (4).However, this power can be exercised by the High Courtonly after assigning the reasons for framing suchadditional question of law at the time of hearing of theappeal”.

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 requirementsof Section 100 and it cannot be laid down as a matter of rule thatirrespective of the question/s formulated, hearing of the second appealis open for any other substantial question of law, even if not formulatedearlier. The said proviso, by its very nature, could come into operationonly in exceptional cases and for strong and convincing reasons, to bespecifically recorded by the High Court. There being no such strong and A

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184 SUPREME COURT REPORTS [2019] 2 S.C.R.

Aconvincing reason in the present case to formulate and hear the secondappeal on any other question of law, the High Court cannot be faulted inrejecting the contentions urged on behalf of the plaintiff-appellant in thisregard.

22. For what has been discussed hereinabove, we are satisfied Bthat the relief of specific performance of agreement in question hasrightly been declined by the First Appellate Court and the High Court.No case for interference being made out, the appeal stands dismissed.

C

Nidhi Jain

Appeal dismissed.

D

E

F

G

H