{"id":116643,"date":"2007-10-05T00:00:00","date_gmt":"2007-10-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sita-ram-ors-vs-radhey-shyam-on-5-october-2007"},"modified":"2015-01-26T23:50:17","modified_gmt":"2015-01-26T18:20:17","slug":"sita-ram-ors-vs-radhey-shyam-on-5-october-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sita-ram-ors-vs-radhey-shyam-on-5-october-2007","title":{"rendered":"Sita Ram & Ors vs Radhey Shyam on 5 October, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Sita Ram & Ors vs Radhey Shyam on 5 October, 2007<\/div>\n
Author: . A Pasayat<\/div>\n
Bench: Dr. Arijit Pasayat, Lokeshwar Singh Panta<\/div>\n
           CASE NO.:\nAppeal (civil)  4656 of 2007\n\nPETITIONER:\nSita Ram & Ors\n\nRESPONDENT:\nRadhey Shyam\n\nDATE OF JUDGMENT: 05\/10\/2007\n\nBENCH:\nDr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
CIVIL APPEAL NO.\t4656  OF 2007
\n(Arising out of SLP (C) No.26448 of 2005)<\/p>\n
Dr. ARIJIT PASAYAT, J.\n<\/p>\n
1.\tLeave granted.\n<\/p>\n
2.\tChallenge in this appeal is to the order passed by a
\nlearned Single Judge of the Jaipur Bench of Rajasthan High
\nCourt dismissing the Second Appeal filed by the plaintiffs-
\nappellants. It is to be noted that the trial court decreed the
\nsuit, which was one for specific performance of a contract
\nwhile the first appellate court set aside the decree. The
\nappellate court dismissed the suit on the ground that the
\npleadings were not in accordance with the provisions of
\nSection 16(c) of the Specific Relief Act, 1963 (in short the ‘Act’).
\nLearned Single Judge dismissed the Second Appeal holding
\nthat no substantial question of law was involved as essentially
\nthe conclusions of the first appellate court were factual
\nfindings.\n<\/p>\n
3.\tIn support of the appeal, learned counsel for the
\nappellants submitted that in the plaint, in essence, specific
\nstatement had been made about the fact that the plaintiffs had
\nmentioned to the defendant that they were ready and willing to
\ndo such effort or act as would be necessary to be done by the
\nplaintiffs for performance of the contract.  It was, therefore,
\nsubmitted that the first appellate court and the High Court
\nwere not justified in holding that the requirements of Section
\n16(c) of the Act were not met.\n<\/p>\n
4.\tPer contra, learned counsel for the respondent submitted
\nthat the bare reading of the plaint itself indicated that  Khasra
\nNo. 866 was later on added and, therefore, the question of the
\nplaintiffs being ready and willing to perform the contract as
\noriginally stood, does not really arise. Specific reference was
\nmade to the pleadings to the effect that though the documents
\nwere executed on 1.9.1977, the same was complete and on
\nthat basis the sale has been concluded.  It is submitted that if
\nthe sale was concluded as pleaded, the question of filing the
\nsuit for specific contract does not arise. Moreover, the
\nplaintiffs themselves had stated that Khasra No.866 was
\nadded later on.\n<\/p>\n
5.\tIn order to appreciate the rival submissions, Section 16(c)
\nneeds to be quoted along with the Explanations. The same
\nreads as follows:\n<\/p>\n
“16. Personal bars to relief:\n<\/p>\n
(a)\t………\n<\/p>\n
(b)\t………\n<\/p>\n
(c) \twho fails to aver and prove that he has
\nperformed or has always been ready and
\nwilling to perform the essential terms of the
\ncontract which are to be performed by him,
\nother than terms of the performance of which
\nhas been prevented or waived by the
\ndefendant.\n<\/p>\n
Explanation- For the purpose of clause (c)-\n<\/p>\n
(i)\twhere a contract involves the payment of
\nmoney, it is not essential for the plaintiff to
\nactually tender to the defendant or to deposit
\nin Court any money except  when so directed
\nby the Court;\n<\/p>\n
(ii)\tthe plaintiff must aver performance of, or
\nreadiness and willingness to perform, the
\ncontract accordingly to its true construction.”\n<\/p>\n
6.\tIn Ardeshir H. Mama v. Flora Sassoon (AIR 1928 PC\n<\/p>\n
208), the Privy Council observed that where the injured party
\nsued at law for a breach, going to the root of the contract, he
\nthereby elected to treat the contract as at an end himself and
\nas discharged from the obligations. No further performance by
\nhim was either contemplated or had to be tendered.  In a suit
\nfor specific performance on the other hand, he treated and was
\nrequired by the Court to treat the contract as still subsisting.
\nHe had in that suit to allege, and if the fact was traversed, he
\nwas required to prove a continuous readiness and willingness
\nfrom the date of the contract to the time of the hearing, to
\nperform the contract on his part. Failure to make good that
\naverment brings with it and leads to the inevitable dismissal of
\nthe suit. The observations were cited with approval in Prem
\nRaj v. The D.L.F. Housing and Construction (Private) Ltd. and
\nAnr. (AIR<\/a> 1968 SC 1355).\n<\/p>\n
7.\tWhile examining the requirement of Section 16(c) this
\nCourt in Syed Dastagir v. T.R. Gopalakrishna Settty<\/a> (1999 (6)
\nSCC 337) noted as follows:\n<\/p>\n
“So the whole gamut of the issue raised is, how
\nto construe a plea specially with reference to
\nSection 16(c) and what are the obligations
\nwhich the plaintiff has to comply with in
\nreference to his plea and whether the plea of
\nthe plaintiff could not be construed to conform
\nto the requirement of the aforesaid section, or
\ndoes this section require specific words to be
\npleaded that he has performed or has always
\nbeen ready and is willing to perform his part of
\nthe contract. In construing a plea in any
\npleading, courts must keep in mind that a plea
\nis not an expression of art and science but an
\nexpression through words to place fact and law
\nof one’s case for a relief. Such an expression
\nmay be pointed, precise, sometimes vague but
\nstill it could be gathered what he wants to
\nconvey through only by reading the whole
\npleading, depending on the person drafting a
\nplea. In India most of the pleas are drafted by
\ncounsel hence the aforesaid difference of pleas
\nwhich inevitably differ from one to the other.
\nThus, to gather true spirit behind a plea it
\nshould be read as a whole. This does not
\ndistract one from performing his obligations as
\nrequired under a statute. But to test whether
\nhe has performed his obligations, one has to
\nsee the pith and substance of a plea. Where a
\nstatute requires any fact to be pleaded then
\nthat has to be pleaded may be in any form. The
\nsame plea may be stated by different persons
\nthrough different words; then how could it be
\nconstricted to be only in any particular
\nnomenclature or word. Unless a statute
\nspecifically requires a plea to be in any
\nparticular form, it can be in any form. No
\nspecific phraseology or language is required to
\ntake such a plea. The language in Section 16(c)
\ndoes not require any specific phraseology but
\nonly that the plaintiff must aver that he has
\nperformed or has always been and is willing to
\nperform his part of the contract. So the
\ncompliance of “readiness and willingness” has
\nto be in spirit and substance and not in letter
\nand form. So to insist for a mechanical
\nproduction of the exact words of a statute is to
\ninsist for the form rather than the essence. So
\nthe absence of form cannot dissolve an essence
\nif already pleaded.”\n<\/p>\n
8.\tAgain in Motilal Jain v. Ramdasi Devi (Smt.) and Ors.<\/a>
\n(2000 (6) SCC 420) it was noted as follows:\n<\/p>\n
\t“7.\tThe other contention which found
\nfavour with the High Court, is that plaint
\naverments do not show that the plaintiff was
\nready and willing to perform his part of the
\ncontract and at any rate there is no evidence
\non record to prove it. Mr. Choudhary developed
\nthat contention placing reliance on the
\ndecision in Varghese case ((1969) 2 SCC 539).
\nIn that case, the plaintiff pleaded an oral
\ncontract for sale of the suit property. The
\ndefendant denied the alleged oral agreement
\nand pleaded a different agreement in regard to
\nwhich the plaintiff neither amended his plaint
\nnor filed subsequent pleading and it was in
\nthat context that this Court pointed out that
\nthe pleading in specific performance should
\nconform to Forms 47 and 48 of the First
\nSchedule of the Code of Civil Procedure. That
\nview was followed in Abdul Khader case ((1989)
\n4 SCC 313 : AIR 1990 SC 682).\n<\/p>\n
8.\tHowever, a different note was struck by
\nthis Court in Chandiok case ((1970) 3 SCC 140
\n: AIR 1971 SC 1238). In that case ‘A’ agreed to
\npurchase from ‘R’ a leasehold plot. ‘R’ was not
\nhaving lease of the land in his favour from the
\nGovernment nor was he in possession of the
\nsame. ‘R’, however, received earnest money
\npursuant to the agreement for sale which
\nprovided that the balance of consideration
\nwould be paid within a month at the time of
\nthe execution of the registered sale deed.
\nUnder the agreement ‘R’ was under obligation
\nto obtain permission and sanction from the
\nGovernment before the transfer of leasehold
\nplot. ‘R’ did not take any steps to apply for the
\nsanction from the Government. ‘A’ filed the
\nsuit for specific performance of the contract for
\nsale. One of the contentions of ‘R’ was that ‘A’
\nwas not ready and willing to perform his part
\nof the contract. This Court observed that
\nreadiness and willingness could not be treated
\nas a straitjacket formula and that had to be
\ndetermined from the entirety of facts and
\ncircumstances relevant to the intention and
\nconduct of the party concerned. It was held
\nthat in the absence of any material to show
\nthat ‘A’ at any stage was not ready and willing
\nto perform his part of the contract or that he
\ndid not have the necessary funds for payment
\nwhen the sale deed would be executed after the
\nsanction was obtained, ‘A’ was entitled to a
\ndecree for specific performance of contract.\n<\/p>\n
9.\tThat decision was relied upon by a three-
\nJudge Bench of this Court in Syed Dastagir
\ncase ((1999) 6 SCC 337) wherein it was held
\nthat in construing a plea in any pleading,
\ncourts must keep in mind that a plea is not an
\nexpression of art and science but an
\nexpression through words to place fact and law
\nof one’s case for a relief. It is pointed out that
\nin India most of the pleas are drafted by
\ncounsel and hence they inevitably differ from
\none to the other; thus, to gather the true spirit
\nbehind a plea it should be read as a whole and
\nto test whether the plaintiff has performed his
\nobligations, one has to see the pith and
\nsubstance of the plea. It was observed :\n<\/p>\n
“Unless a statute specifically
\nrequires a plea to be in any
\nparticular form, it can be in any
\nform. No specific phraseology or
\nlanguage is required to take such a
\nplea. The language in Section 16(c)
\nof the Specific Relief Act, 1963
\ndoes not require any specific
\nphraseology but only that the
\nplaintiff must aver that he has
\nperformed or has always been and
\nis willing to perform his part of the
\ncontract. So the compliance of
\n‘readiness and willingness’ has to
\nbe in spirit and substance and not
\nin letter and form.”\n<\/p>\n
It is thus clear that an averment of readiness
\nand willingness in the plaint is not a
\nmathematical formula which should only be in
\nspecific words. If the averments in the plaint
\nas a whole do clearly indicate the readiness
\nand willingness of the plaintiff to fulfil his part
\nof the obligations under the contract which is
\nthe subject-matter of the suit, the fact that
\nthey are differently worded will not militate
\nagainst the readiness and willingness of the
\nplaintiff in a suit for specific performance of
\ncontract for sale.”\n<\/p>\n
9.\tLord Campbell in Cork v. Ambergate etc. and Railway Co.
\n(1851) 117 ER 1229 observed that in common sense the
\nmeaning of such an averment of readiness and willingness
\nmust be that the non-completion of the contract was not the
\nfault of the plaintiffs, and that they were disposed and able to
\ncomplete it had it not been renounced by the defendant.\n<\/p>\n
10.\tThe basic principle behind Section 16(c) read with
\nExplanation (ii) is that any person seeking benefit of the
\nspecific performance of contract must manifest that his
\nconduct has been blemishless throughout entitling him to the
\nspecific relief. The provision imposes a personal bar.  The
\nCourt is to grant relief on the basis of the conduct of the
\nperson seeking relief.  If the pleadings manifest that the
\nconduct of the plaintiff entitles him to get the relief on perusal
\nof the plaint he should not be denied the relief. (See Aniglase
\nYohannan v. Ramlatha and Ors.<\/a> (2005(7) SCC 534).\n<\/p>\n
11.\tThat being so, considering the background facts vested
\non the anvil of the principles of law formulated above, the
\ninevitable conclusion is that the appeal deserves to be
\ndismissed.  There is no dispute that there was claim in respect
\nof Khasra 866 which did not form part of the agreement.
\nThere was also an averment to the effect that the agreement
\nrelated to a completed sale. There shall be no orders as to
\ncosts.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Sita Ram & Ors vs Radhey Shyam on 5 October, 2007 Author: . A Pasayat Bench: Dr. Arijit Pasayat, Lokeshwar Singh Panta CASE NO.: Appeal (civil) 4656 of 2007 PETITIONER: Sita Ram & Ors RESPONDENT: Radhey Shyam DATE OF JUDGMENT: 05\/10\/2007 BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA JUDGMENT: J […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-116643","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSita Ram & Ors vs Radhey Shyam on 5 October, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sita-ram-ors-vs-radhey-shyam-on-5-october-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sita Ram & Ors vs Radhey Shyam on 5 October, 2007 - 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