RACHAKONDA NARAYANA versus PONTHALA PARVATHAMMA AND ANR.

Citation: [2001] SUPP. 2 S.C.R. 71 · Decided: 23-08-2001 · Supreme Court of India · Bench: V.N. KHARE · Disposal: Appeal(s) allowed

Judgment (excerpt)

RACHAKONDA NARA YANA 
v. 
PONTHALA PARVATHAMMA AND ANR. 
AUGUST 23, 2001 
(V.N. KHARE AND SHIVARAJ V. PATIL, JJ.] 
Specific Relief Act, 1963-Sec. 12(3)-Specific performance of a part of 
contract-Claim for-Plea not raised when the suit was filed but raised only 
A 
B 
at the appellate stage-Defaulting Party's inability to perform whole contract C 
brought out only at appellate stage-Held, relief of specific performance of 
part of contract could be claimed at appellate stage also. 
Code of Civil Procedure, 1908-Sec. 96-Appeal-Nature and scope 
of-Held, appeal is a continuation of suit-Appellate court can go into any 
question relating to rights of parties which a trial court is entitled to. 
D 
Practice and Procedure : 
Plea-Plea regarding.part performance of contract-raising of-Held, 
could be raised even at the appellate stage when the fact of defaulting party's 
inability to perform whole contract is brought to notice-Specific Relief Act, E 
1963. 
Respondent-defendant executed an agreement to sell two plots of Iand-
Plot A and Plot B-in favour of appellant-plaintiff and a certain sum was paid 
as earnest money. Subsequently, the appellant received notice from one 'B' 
that he was the real owner of Plot B land and defendant had no right to sell F 
the same. The appellant in turn sent a notice to the defendant for executing 
the sale deed. However, the defendant evaded to perform his part of contract. 
Consequently the appellant filed a suit for specific performance of agreement 
to sell plot A land only after proportionate deduction of the price for plot 'B' 
land or in the alternative to substitute the Patta land for the price agreed 
between the parties. The trial court dismissed the suit holding that the plaintiff G 
was not entitled to seek enforcement of new contract either by way of 
substitution of the patta land or for proportionate deduction of agreed price 
of the land. 
Before the first appellate court, for the first time the defendant took H 
71 
72 
SUPREME COURT REPORTS (2001] SUPP. 2 S.C.R. 
A the plea that he had no title in respect of plot B land and the same belonged 
to his wife who had refused to assign the same in his favour. Consequently, 
plaintiff moved an application for amendment of the plaint to the effect that 
he was ready and willing to purchase a plot A land by paying the entire sale 
consideration and was relinquishing his claim in respect of the land contained 
B in Plot B. The first appellate court allowed the amendment and decreed the 
suit in respect of the land comprised in Plot A. 
However, High Court took the view that since the plaintiff did not claim 
benefit under Sec.12(3) of the Specific Relief Act, 1963 and claimed 
performance of only part of the agreement and was not ready and willing to 
C perform his part of the whole contract, he was not entitled to decree for 
specific performance of the agreement to sell. Consequently, the second appeal 
was allowed and the suit stood dismissed. Aggrieved, the plaintiff filed the 
present appeal. 
On behalf of the appellant it was contended that the relief under 
D Sec.12(3) of the Act can be claimed even at the appellate stage and the High 
Court was wrong in holding that such relief ought to have been claimed when 
the suit was filed. 
On behalf of respondent it was contended that in view of Sec. 16(c) of 
the Act, the plaintiff was to aver in the plaint itself and establish that he had 
E performed or had been ready and willing to perform the essential terms of 
the contract. An amendment to the pleading at a later point of time to bring 
in the statement was to be refused after the parties have gone into evidence. 
Allowing the appeal, the Court 
F 
HELD : I.I High Court was not justified in holding that the plaintiff 
was not entitled to claim relief under Section 12(3) of the Specific Relief Act, 
1963 at the appellate stage by amendment in the plaint since the claim was 
not made at the time of filing of the suit. 178-EI 
1.2. It is not necessary that relief under Sec.12(3) of the Act has to be 
G pleaded in the plaint when the suit is laid out. It can also be taken at the 
appellate stage. An appeal is a continuation of a suit. When an appellate court 
hears an appeal, the whole matter is at large. The appellate court can go into 
any question relating to rights of the parties which a trial court was entitled 
to dispose of provided the plaintiff possesses that right on the date of filing of 
H the suit. [77-E, 78-B-CJ 
R

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