JUDGMENT
A.S. Nehra, J.
1. This appeal is directed against the judgment and decree dated 15-12-1979 passed by the Additional District Judge, Kurukshetra, by which the appeal filed by the defendant-appellant was dismissed and the judgment and decree dated 4-9-1978 passed by the trial Court (decreeing the suit of the plaintiff-respondent) was upheld.
2. Briefly stated, the facts of the case, as alleged by the plaintiff-respondent, are that on 2-2-1973 the defendant appellant contracted to sell his agricultural land to the extent of 870/224th share equivalent to 43 kanals 10 Marlas with all the rights for a consideration of Rs. 27,000/-, and executed an agreement to this effect; that the defendant-appellant had also received Rs. 7,000/- as earnest money from the plaintiff-respondent on the day of execution of the agreement for which the plaintiff-respondent obtained a separate receipt from him; that according to the agreement, the defendant-appellant was to execute and get the sale deed registered, in respect of the suit land, in favour of the plaintiff respondent on or before 1-2-1974; that the defendant-appellant was to receive the balance of the sale price at the time of registration of the sale-deed; that it was further agreed that, in case of default by the defendant-appellant, the plaintiff-respondent could sue for specific performance or, in the alternative, the defendant appellant was to pay twice the earnest money to the plaintiff-respondent; that the plaintiff-respondent was always ready and willing to perform his part of the contract and waited for the defendant-appellant in the office of the Sub-Registrar, Kaithal, on 1-2-1974 to give the balance sale price but the defendant-appellant did not deliberately turn up; that the plaintiff-respondent then got his presence marked through an affidavit duly attested by the Sub-Registrar, Kaithal; that the defendant-appellant had deliberately committed breach of the agreement as he was not willing and ready to perform his part of the contract; and that, therefore, the plaintiff-respondent filed the present suit for specific performance of the agreement.
3. The suit was contested by the defendant-appellant. The defendant-appellant admitted the agreement to sell, as alleged, but stated that the same was not valid and that it was only for Rs. 22.000/-. The defendant-appellant disputed that the plaintiff-respondent was ready and willing to perform his part of the contract. According to the defendant-appellant, it was the plaintiff-respondent who was not ready and willing to perform his part of the contract and, before 1-2-1974, the plaintiff respondent approached him for declaring the contract as rescindable by saying that he did not intend to purchase the suit land and, therefore, the defendant-appellant did not reach the office of the Sub-Registrar. The defendant-appellant further alleged that the plaintiff respondent had received back a sum of Rs. 2,000/ after 1-2-1974 about 2 years ago and that the defendant-appellant had actually received only Rs. 2,000/- as earnest money and an excess amount was written in the agreement and receipt to ward off the exercise of right of pre emption by possible pre-emptors.
4. On the pleadings of the parties, the following issues were framed :–
1. Whether the plaintiff was always ready and willing to perform his part of the contract ?
2. Whether the defendant committed any breach of the agreement ?
3 Whether agreement was rescinded by the plaintiff ?
4. Relief.
5. All the issues were decided in favour of the plaintiff-respondent and the trial Court decreed the suit filed by the plaintiff respondent on 4-9-1978.
6. Mr. D.S. Nehra, Senior Advocate, learned counsel for the appellant argued that a suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the First Schedule in the Code of Civil Procedure. It was further argued by him that it is incumbent on the plaintiff to set out the agreement in all its details, on the basis of which he sues ; that the plaintiff must go further and plead that he had applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so ; that the plaintiff must also plead in the plaint that he had been ready and is still ready and willing to specifically perform his part of the agreement, that it is prescribed in Form 48 of the First Schedule of the Code of Civil Procedure that the plaintiff is to plead that he tendered the money to the defendant on a particular date and demanded transfer of property by a sufficient instrument, that, in the present case, the plaintiff respondent failed to make any such averment in the plaintiff; that the plaintiff respondent also did not make any statement in conformity with the said plea and that, therefore, it cannot be said that the plaintiff-respondent was ready and willing to perform his part of the agreement. In support of his argument, he has relied upon Dhana Singh v. Malkiat Singh, (1983) 85 P. L. R. 275.
7. The learned counsel for the plaintiff-respondent, Mr. Sanjay Majithia, has submitted that the appellant executed on 2-2-1973 the agreement to sell the suit land for a consideration of Rs. 2,700/- in favour of the plaintiff and an amount of Rs. 7,000/- was paid as earnest money to the appellant ; that the salient terms of the said agreement are that the appellant was to execute and get registered the sale-deed in respect of the suit land in favour of plaintiff-respondent unto, 1-2-1974 and the appellant was to receive the balance of sold price at the time of registration of the sale-deed; and that, in case of default by the appellant the plaintiff respondent was entitled to get the sale deed executed and registered by filing a suit for specific performance or, in the alternative, the appellant was to pay the plaintiff-respondent two times of the earnest money The learned counsel for the plaintiff respondent has further argued that the plaintiff-respondent has specifically mentioned in paragraph 4 of the plaint that the plaintiff has always been ready and still is ready and willing to perfom his part of the contract in accordance with the terms of the agreement, Mr. Sanjay Majithia, learned counsel for the plaintiff-respondent, has further submitted that, where a contract involves the payment of money, it is not necessary for the plaintiff to actually tender to the defendant or to deposit in Court any amount except when so desired by the Court in support of his argument, he has relied upon Section 16(c) of the Specific Relief Act, which reads :–
“16. Personal bars to relief –Specific performance of a contract cannot be enforced in favour of a person —
(a) x x x x x (b) x x x x x (c) who fails to aver and prove that he has 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 terms the performance of which has been prevented or waived by the defendant. Explanation :--For the purposes of clause (c), (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the Court ; (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction."
It would thus appear that Section 16(c) of the Specific Relief Act, 1963, therefore, enacts that it would be a personal bar to the relief of specific performance in favour of a plaintiff who fails to aver and prove that he has 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 the performance of which has been prevented or waived by the defendant. A distinction may be drawn between “readiness to perform the contract” and ‘willingness to perform the contract”. By readiness may be meant the capacity of the plaintiff to perform the contract. This includes his financial ability to pay the purchase money. But the more important question is whether he was willing to perform his part of the contract even if he had the financial capacity to do so. It is here that the plaintiff’s conduct has to be properly scrutinized.
8. In paragraph 4 of the plaint, it is clearly stated :–
“That the plaintiff has always been and is still ready and willing to perform his part of contract in accordance with the terms of the said agreement.”
9. Mr. Sanjay Majithia, learned counsel for the plaintiff-respondent, has further submitted that the judgment in Dhanna Singh’s case (supra) was rendered in ignorance of law and, therefore, the said judgment is per incuriam. In support of his argument, he has relied upon Raminder Singh v. Sham Lal, A.I. R. 1984 Punj. 145 and Sardari Lal Gupta v. Siri Krishan Aggarwal, A. I. R. 1984 Punj. 439.
10. The learned counsel for the plaintiff-respondent has further submitted that the learned Single Judge who rendered the judgment in Dhanna Singh’s case (supra) on 2-11-1982 has taken a different view in another case reported as Raminder Singh’s case (supra) decided on 23-9-1983 and held as under :–
“The plaintiff in a suit for specific performance of an agreement must plead and prove that he was ready and willing to perform his part of the contract continuously between the date of the contract and the date of hearing of the suit. It is well settled that the substance of the pleas should be kept in view and the pleadings should not be construed very strictly. It is also settled that the pleadings should be read as a whole.”
11. I have given due consideration to the argument of the learned counsel for the appellant but regret my inability to accept the same. In the plaint, all the facts have been narrated, as stated above. Thereafter, it was pleaded that the plaintiff-respondent was ready and willing to perform the agreement. It has been mentioned in paragraphs 5 and 6 of the plaint that on 1-2-1974 the plaintiff-respondent waited for the defendant-appellant in the office of Sub-Registrar, Kaithal, alongwith the balance of sale price and the necessary amount required for other expenses but the defendant-appellant did not deliberately meet the plaintiff respondent either in the bazar or in the office of Sub-Registrar, Kaithal; that the plaintiff respondent then got his presence marked before the Sub-Registrar, Kaithal, through an affidavit duly attested to this effect by the Sub-Registrar, Kaithal, in his capacity as Executive Magistrate II Class, Kaithal; and that the defendant-appellant has deliberately committed the breach of agreement and he is not ready and willing to perform his part of the contract. From all the pleas, it is evident that the plaintiff-respondent was alleging that he was always ready and willing to perform his part of the agreement. Therefore, it cannot be held that a plea has net been taken by the plaintiff-respondent that he was ready and willing to perform his part of the agreement. Similarly, in his statement he has stated all the above-said facts. The inference is that he was always ready and willing to perform his part of the agreement. As stated above, the plaintiff-respondent has alleged in the plaint that he is still ready and willing to perform his part of the agreement and he has also made the same statement. The judgment in Dhanna Singh’s case (supra) was rendered in ignorance of the law and, therefore, the said judgment is per incuriam.
12. It has been held in Karnail Singh v. Kishan Singh, (1988-1)93 P. L. R. 303,–
“A distinction may be drawn between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract. This includes his financial ability to pay the purchase price. But the more important question is whether he was willing to perform his part of the contract even if he had the financial capacity to do so. It is here that the plaintiff’s conduct has to be properly scrutinized.”
It is also clear from the language of Section 16(c) of the Specific Relief Act that, where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the Court. Therefore, I hold that in a suit for specific performance, the plaintiff-respondent has net to conform to the requirement prescribed in Form 48 of the First Schedule in the Code of Civil Procedure. There is, thus, no merit is this appeal and it is accordingly dismissed with no order as to casts.