MOST. ETWARI DEVI AND ORS. versus MOST. PARVATI DEVI

Citation: [2006] 1 S.C.R. 447 · Decided: 17-01-2006 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed

Judgment (excerpt)

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MOST. ETWARI DEVI AND ORS. 
A 
v. 
MOST. PARVATI DEVI 
JANUARY 17, 2006 
[ARIJIT PASAYAT AND TARUN CHATTERJEE, JJ.] 
B 
'y 
Specific Relief Act, 1963; Section. 16(C): 
Suit for specific performance of contract-Al/owed by Trial Court and c 
affirmed by first Appellate Court-Reversed by High Court on grounds that 
neither pleading nor evidence tendered by the plaintiff proved that he was 
ready and willing to perform his part of the contract-On appeal, held: Specific 
averments regarding readiness and willingness to perform his part of the 
contract made by the plaintiff in the plaint-Plaintiff as prosecution witness 
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categorically stated that he went to the defendant to tender the consideration D 
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amount in fulfilment of his part of the contract but respondent was not willing 
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to perform his part of the contract-Moreover. the defendant did not raise any 
such plea against the plaintiff before the Trial Court or the first Appellate 
Court-Besides, Plaintiff deposited the amount in question in terms of order 
of the Trial Courl-fn lhe facls and circumstances of the case, the High Court 
should not have acted on the oral submission of the respondent-Hence the E 
order of the High Court indefensible. 
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Husband of appellant No. I filed a suit for specific performance 
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against the respondent on the ground that the respondent had failed to 
perform his part of the contract though he was ready and willing to F 
perform his part of the contract. Plaintiff died and his legal heirs were 
substituted. Trial Court decreed the suit, which was affirmed by the first 
Appellate Court. Aggrieved, respondent filed second appeal before the 
High Court. Single Judge of the High Court dismissed the suit by reversing 
the order of the Trial Court. Hence the present appeal. 
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Allowing the appeal, the Court 
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HELD. 1. 1. The findings of the High Court are contrary to the 
materials on record. As noted by the first Appellate Court, specific 
averments regarding readiness and willingness of the plaintiff to perform 
447 
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448 
SUPREME COURT REPORTS 
120061 I S.C.R. 
A his part of the contract have been made. Additionally, the plaintiff who 
was examined as Prosecution Witness has categorically stated that he had 
gone to tender the money, that is the consideration, to the defendant who 
was not agreeable to return the sale deeds and therefore the only course 
left open to the plaintiff was to file a suit. On this ground alone, the 
B judgment of the HiJ?lt Court is vulnerable. 1449-F-G-H; 450-AI 
1.2. There can be no quarrel with the proposition that in a suit for 
specific performance of the contract, the plaintiff must prove that he was 
ready and willing to perform his part of the contract continuously between 
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the date of the contract and the date of hearing of the suit. But the finding 
C that the plaintiff has not proved his capacity to perform his part of the 
contract as he was not even ready to deposit the money in terms of the 
trial Court's order is factually wrong. No such plea was raised by the 
defendant either before the first Appellate Court or before the High Court 
in the second appeal. However, the deposit was made well within one 
month's time granted by the Trial Court by its judgment and decree. 
D Notwithstanding the deposit, an application for extension of time was filed. 
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The High Court should have ignored the app1ication and should not have 
put any emphasis thereon as verification of the records would have 
revealed that the payment had been made. Even otherwise there was no 
such plea taken by the respondent about the non deposit within time 
E granted by the Trial Court. The High Court should not have acted on an 
oral submission made by the respondent without granting of an 
opportunity to the present appellants to have their say in the matter. 
Hence, the impugned judgment of the High Court is indefensible and set 
aside. The judgment and decree passed by the Trial Court and the first 
Appellate Court are restored. 1450-B-C-D-E-Fl 
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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1514 of:.?.000. 
From the Judgment and Order dated 11.5.1999 of the Patna High Court 
in Appeal from Appellate Decree No. 23 of 1984 (R). 
G 
Gopal Prasad for the Appellants. 
K.K. Gupta for the Respondent. 
fhe Judgment of the Court was delivered by 
H 
ARIJ IT PASAYA T, J. Challenge in th is appeal is the judgment of the 
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MOST. ETWARI DEVI v MOST. l'ARVATI DEVI [PASAYA T. J.] 449 
learned Sin

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