JUDGMENT
B.D. Agarwal, J.
1. This appeal is directed against the judgment and decree of the Second Temporary Civil & Sessions Judge, Azamgarh dated Aug. 23, 1969.
2. The defendant No. 1 was the Bhu-midhar of the land specified at the foot of the plaint. On Oct. 29, 1963 he entered into an agreement in writing to sell, this land to the plaintiff for consideration of Rs. 4000/- of which a sum of Rs. 500/- was paid by the plaintiff to the defendant No. 1 the same day as earnest. The sale was to be executed after obtaining permission from the Settlement officer (Consolidation) since the land in question was under consolidation proceedings. The plaintiff asked the defendant No. 1 to apply for the permission which the defendant no. 1 did. On the permission being obtained the plaintiff insisted upon the defendant No. 1 to execute the sale in his favour and obtain the balance of the sale Consideration. This was evaded by the defendant No. 1. On Dec. 21, 1963, the defendant No. 1 executed sale of the land in favour of the defendant No. 2. The plaintiff required him to rescind the sale but to no effect. The suit was instituted with these allegations on March 23, 1964 seeking the relief of specific performance of the agreement to sell.
3. In defence the defendant No. 2 averred that there was no agreement
to sell arrived at between the plaintiff and the defendant No. 1. It was refuted that the defendant no. 2 had notice of any such agreement. The plea taken was that he was a bona fide purchaser for consideration of Rs. 4800/- without notice. The defendant No. 1 did not put in contest and the suit proceeded ex parte against him.
4. The trial court found against the defendant no. 2 on both the pleas raised by him. The agreement to sell was found to be duly executed on Oct. 29, 1963, it was also found that the defendant No. 2 had notice to that agreement. The suit was, therefore, decreed for the relief of specific performance of agreement to sell on March 31, 1960. The appeal filed by the defendant No. 2 against the decree was dismissed on Aug. 23, 1969. The findings recorded by the trial court on both the points were affirmed. Aggrieved the defendant No. 2 preferred this appeal. Due to his death during the pendency of the appeal the legal representatives were brought on the record.
5. Sri S. N. Verma, learned counsel for the appellants submitted that there was no agreement to sell executed by the defendant No. 1 in favour of the plaintiff on Oct. 29, 1963 and that the defendant No. 2 did not have notice of any such agreement. Both these contentions are concluded by the concurrent findings of fact. The agreement was found duly executed vide Ex. II. In regard to the notice it, was held on the basis of the evidence placed on the record that the defendant No. 2 had been present personally when the agreement was executed. The testimony of the plaintiff to this effect was accepted by both the courts below. There is no perversity shown to exist in relation to these findings. In view thereof these contentions have to be rejected.
6. Sri S. N. Verma learned counsel for the appellants has contended chiefly, however, that there has been no compliance to the mandatory requirement of Section 16(c) Specific Relief Act, 1963 and, therefore, the suit could not be decreed for specific performance. In terms of Section 16(c) specific performance of a contract cannot be enforced in favour of a person “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……” Form
No. 47 of Appendix A of the First Schedule of the Civil P. C. which reads as under was also referred to-
“The plaintiff has been and still is ready and willing specifically to perform the agreement on his part of which the defendant has had notice.”
7. The argument put forward is that
the plaint does not contain this averment and in the absence thereof there could be no evidence adduced on the point nor have the courts below recorded a finding that the plaintiff respondent had been and continued to be ready and willing to perform his part of the contract.
8. Under the terms of the agreement
to sell dated 29th Oct. 1963 (Ex. 2) the
sale was to be executed after obtaining
permission of the Settlement Officer (Con
solidation). The permission was to be
taken by the defendant No. 1 the vendor.
This was a condition precedent to sale.
A sum of Rs. 500/- was indisputedly
paid as earnest on the same date. The
plaintiff referred to these facts in paras
4 and 5 of the plaint. In para 6 he nar
rates that he asked the defendant No. 1
to apply for the permission which the
latter did and the permission was ob
tained too where after it is also averred,
the plaintiff asked the defendant No. 1
to execute sale in his favour but the
defendant no. 1 kept on avoiding the
same. In para 7 he refers to sale dated
21-12-1963 executed by the defendant
No. 1 in favour of the defendant no. 2
In para 9 it is reiterated that on coming
to know of this sale, the plaintiff re-
quired the defendant No. 1 to rescind
this sale and to execute sale to the pla
intiff in terms of the agreement but the
defendant No. l declined, and hence the
suit brought soon after on March 23,
1964 for specific performance on pay
ment of balance of sale consideration. In
the written statement of the defendant
No. 2 there is no specific denial of these
averments of parns 6 and 9 of the plaint
while the defendant no. 1 abstained
from filing any written statement. In
his deposition the plaintiff maintained
that he had been persisting upon the de
fendant No. 1 to execute the sale in his
favour but to no effect. There is no
cross examination directed against this
aspect.
9. In the old Specific Relief Act, 1877 there was no express provision that the averment of readiness and willingness
was necessary for a suit to enforce specific performance. In Ardeshir H. Mama v. Flora Sarsoon (AIR 1928 PC 208). it was observed that on principle the Indian and the English requirements in this matter were the same. The law Commission recommended insertion of this specific provision in the new Act. The provision has come in for interpretation in a large number of cases. The appellant’s learned counsel referred to the decisions reported in Prem Rai v. D. L. F. Housing and Construction (Pr.) Ltd. (AIR 1968 SC 1355). Ouseph ” Varghese v. Joseph Aley ( (19691 2 SCC 539) Raien-dra Prasad v. Rajdeva Rai (AIR 1974 All 294) : Manohar Lal v. Smt. Raje-shwari Devi (AIR 1977 All 36): Mahmood Khan v. Ayub Khan (AIR 1978 All 463) (Division Bench): Narendra Bahadur Singh v. Baijnath Singh (AIR 1981 All 410) (Division Bench): Mukhtiar Singh v. Dharampal Singh (1981 All LJ 119 (Division Bench) and Surai Singh v. Sohan Lal, AIR 1981 All 330). The submission made on the strength of these authorities is that in the absence of the averment referred to above, the plaint does not disclose a cause of action and that it is of no consequence for this purpose that the defendants did not plead or join issue and no issue was, therefore, passed bv the trial court.
10. In Prem Rai v. D. L. F. Housing and Construction (Pr.) Ltd. (AIR 1968 SC 1355) (supra) which has constituted the leading authority on the subject, it was observed at page 1357 :
“In the present case, no such averment is made in the plaint. On the other hand, the plaintiff has alleged that the agreement was a result of fraud and undue influence and was not binding upon him. For these reasons it must be held that so far as the relief of specific performance is concerned, the plaintiff has no cause of action”. (Emphasis mine).
11. The crux, therefore, is that the plaintiff was said to have no cause of action because in face of the contention that the agreement was vitiated by fraud and undue influence jt would have been incongruous to say that the plaintiff averred readiness and willingness to form his part of the contract. This decision was followed in Ouseph Varghese v. Joseph Alien ((1969) 2 SCC 539). From the report, however, we do not get a precise idea of the actual contents of the
plaint in this context. The proper approach to the matter is laid by the Supreme Court in Ramesh Chandra Chand-lok v. Chuni Lal (AIR 1971 SC 1238) at page 1242, it was observed :
“Readiness and willingness cannot be treated as a strait-jacket formula. These have to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned.”
12. It was argued that in this case the plaint contained the requisite averment and hence it is distinguishable. I had occasion to consider similar, conten-t on advanced before me in Dhian Singh v. Tarachand (Second appeal no. 2538 of 1978) decided on 22-9-1983 : (reported in AIR 1984 All 4 at p. 7) and I stated:
“Learned counsel argued that the question therein was not as to averments in the pleading but with regard to the proof of readiness and willingness. To my mind the dictum of the Supreme Court quoted above clearly points the broad perspective in the light whereof the issue covering the averments as well as the proof has to be adjudged. It would be much too artificial and highly technical to draw a dichotomy in construing the pleading on the one hand and in appreciating the evidence on the other. The strait-jacket formula discarded for purposes of appreciation of evidence cannot be adopted as good to construe the pleadings which, as is well known, seldom conform strictly to the exemplars contained in various Forms incorporated in appendix A of the Civil P. C. .”
13. Rule 3 of Order VI Civil P. C. itself specifies that the Forms in appendix A of the First Schedule when applicable, as nearly may be, shall be used for all pleadings. This evidently per-mits a departure from the language used provided the substance remains fulfilled. The substantive provision contained in Section 16(c) does not insist upon a particular set of words to be used: the averment must in substance indicate the continuous readiness and willingness on the Dart of the person suing. The Form prescribed under Order 6, Rule 3 is proce-dural, it is a rule of pleading, this has for its oblect the advance of cause of justice and it is not intended to short circuit decision on merits. It is procedural, something designed to facilitate iustice and further its end not a penal enactment see Smt. Dipo v. Wassam
Singh (AIR 1983 SC 846): Kalipada Day v. B. K. Sen Gupta fAIR 1983 SC 376); Sangram Singh v. Election Tribunal, Katak (AIR 1955 SC 425) I am inclined for these reasons to agree with respect with the view expressed in Virendra Kumar v. Dava Nand (1982 All WC 176): Prag Datt v. Smt. Saraswati Devi (AIR 1982 All 37). Shakoor v. Palakdhari (1983 All WC 737) that the court in suitable cases should look into the totality of circumstances and the allegations made in the plaint and from them come to a conclusion whether necessary allegations have been made by the plaintiff in that regard. No particular language or phraseology need be employed by the plaintiff. A literal compliance to the language appearing in Forms 47 and 48 qf the Appendix A is not imperative nor is this the requirement of law.
14. The plaintiff in the instant case avers that he asked the defendant No. 1 to apply for permission of the Settlement Officer (Consolidation). The defendant No. 1 did that whereafter the plaintiff required him to execute sale in his favour but that was of no effect. Instead the defendant No. 1 made sale to the defendant No. 2. The plaintiff asked this sale to be rescinded but the defendant No. 1 did not accede. I fail to understand that all this does not necessarily imply the averment of continuous readiness and willingness on the plaintiffs part. There is nothing to suggest that he was imploring upon the defendant No .1 to sell without being ready and willing on his side to pay the balance of consideration. That averment is necessarily implicit in what he pleads Coupled with this is the fact that the suit was brought forthwith without waiting to let the statutory limita-tion expire and there is then the com-plete absence of a plea by the defen-dants traversing these allegations. Unless the court were to resort to a strait Jacket formula which the Supreme Court deplores, it seems difficult to accept that the plaint does not disclose the cause of action for the relief of specific performance.
15. For the foregoing discussion the
appeal fails and is dismissed with costs
to the respondent No. 1 except for this
modification that the balance of the sale
consideration shall be payable to the appellants.