MEHBOOB-UR-REHMAN (DEAD) THROUGH LRS. versus AHSANUL GHANI

Citation: [2019] 2 S.C.R. 169 · Decided: 15-02-2019 · Supreme Court of India · Bench: ABHAY MANOHAR SAPRE · Disposal: Dismissed

Cited by 3 judgment(s) · cites 4 · see the full citation network in Lexace

Judgment (excerpt)

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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 specific
performance – Personal bars to the relief – Suit for specific
performance of agreement for sale of property by plaintiff against
the defendant – Decreed by the trial court, however, set aside by
the first appellate court holding that the plaintiff failed to aver and
prove his continuous readiness and willingness to perform his part
of contract – First appellate court also rejected the plaintiff’s
application seeking leave to amend the plaint – Second appeal by
the plaintiff – Dismissed by the High Court – On appeal, held:
Plaintiff failed to aver and prove his readiness and willingness to
perform his part of the contract – Plaintiff sought leave to amend
the plaint only when the ground to that effect was taken in the first
appeal by the defendant – Late attempt to improve upon the pleadings
of the plaint at the appellate stage was only an exercise in futility –
Moreover, the High Court rightly pointed out that no substantial
question of law as regards the correctness of the order refusing the
application for amendment was formulated – Also, no strong and
convincing reason existed to formulate and hear the second appeal
on any other question of law – Thus, the relief of specific
performance of agreement rightly rejected by the first appellate
court 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 Court
rightly held that in the instant suit, specific performance of the
agreement 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.
[Para 12][178-D-E]
[2019] 2 S.C.R. 169
169
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170                    SUPREME COURT REPORTS            [2019] 2 S.C.R.
1.2 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 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. [Para 13][178-E-F]
1.3 Though, with the amendment of the Specific Relief
Act, 1963, the expression “who fails to aver and prove” is
substituted by the 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. 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. [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 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.
[Para 15][180-B-C]
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1.5 There is not even a remote suggestion in the plaint
averments 

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