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Gurupadayya Shivayya Hiremath Vs. Shivappa Basappa Gurammanavar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 1302 of 1974
Judge
Reported inAIR1978Kant98; ILR1978KAR748
ActsSpecific Relief Act, 1963 - Sections 16; Code of Civil Procedure (CPC), 1908 - Order 6, Rule 4
AppellantGurupadayya Shivayya Hiremath
RespondentShivappa Basappa Gurammanavar
Appellant AdvocateS.C. Javali, Adv. for ;S.N. Hatti, Adv.
Respondent AdvocateKadidal Manjappa, Adv.
Excerpt:
.....before the tribunal regarding such application being filed and as is clear, second or subsequent applications are not maintainable. - 37/66, decided on 4-4-1968) (reported in [1968]3scr648 ) that it is well settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract and in the absence of such an allegation the suit is not maintainable.1. this second appeal arises out of a suit for specific performance based on ex. p-1, the agreement for sale of a property belonging to the defendant. the trial court decreed the suit, but the appellate court while reversing that decree has granted the alternate relief to the plaintiff to recover the consideration under ex. p-l. the decree for specific performance has been denied solely on the ground that the plaintiffs pleas are not in conformity with section 16(c) of the specific relief act, 1963.2. the only question to be determined in this appeal is whether the appellate court was right in stating that the plaintiff is not entitled to a decree for specific performance in view of his defective pleadings.the pleadings and proof in any suit for specific performance should be in.....
Judgment:

1. This second appeal arises out of a suit for specific performance based on Ex. P-1, the agreement for sale of a property belonging to the defendant. The trial Court decreed the suit, but the appellate Court while reversing that decree has granted the alternate relief to the plaintiff to recover the consideration under Ex. P-l. The decree for specific performance has been denied solely on the ground that the plaintiffs pleas are not in conformity with Section 16(c) of the Specific Relief Act, 1963.

2. The only question to be determined in this appeal is whether the appellate Court was right in stating that the plaintiff is not entitled to a decree for specific performance in view of his defective pleadings.

The pleadings and proof in any suit for specific performance should be in conformity with the provisions of Section 16(c) and forms 47 and 48 of the first schedule in the Civil P. C. If these requirements are not complied with, the plaintiff is not entitled to a decree for specific performance. Section 16(c) of the Specific Relief Act, 1963 provides:

'16. Specific performance of a contract cannot be enforced in favour of a person--

(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 involved 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.'

This sub-section makes it obligatory for the plaintiff to aver in his plaint and also to prove that he has performed or has always been ready to perform the essential terms of the contract which are to be performed by him. The plaint, however, need no be followed by the actual deposit when a contract involves such payment, but there must be proper averments in the plaint regarding the plaintiff's willingness to perform his part of the contract followed by the evidence to prove it. In other words, his conduct should not be anything other than his readiness to perform his part of the contract. If there is no such proper plea in that regard, the suit for specific performance is not maintainable. That was the view expressed by the Supreme Court in Ouseph Verghese v. Joseph Aley : [1970]1SCR921 . It was observed at p. 543 as follows:--

'......The plaintiff did not plead either in the plaint or at any subsequent stage that he was ready and willing to perform the agreement pleaded in the written statement of the defendant. A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the 1st Schedule in the Civil Procedure Code. In a suit for specific performance it is incumbent on the plaintiff not only to set out agreement on the basis of which he sues in all its details, he must go further and plead that he has applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so. He must further plead that he has been and is still ready and willing to specifically perform his part of the agreement. Neither in the plaint nor at any subsequent stage of the suit the plaintiff has taken those pleas. As observed by this Court in Pt. Prem Raj v. D. L. F. Housing and Construction (Pvt.) (Ltd.) (Civil Appeal No. 37/66, decided on 4-4-1968) (reported in : [1968]3SCR648 ) that it is well settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract and in the absence of such an allegation the suit is not maintainable.'

The above observations of the Supreme Court were based on Forms 47 and 48 given in Appendix A of the 1st Schedule in the Civil Procedure Code, which also require the plaintiff to state in the plaint that he requested the defendant specifically to perform the agreement on his part, but the defendant has not done so. Form 48 also requires the plaintiff to state in the plaint that on such and such date the plaintiff tendered......rupees to the defendant and demanded a transfer of the said property by a sufficient instrument. That Form also requires the plaintiff to state that the plaintiff demanded such transfer or the defendant refused to transfer the same to the plaintiff,

3. It is admitted by Sri Javalli, Senior Advocate for the appellant that the plaint is silent in respect of these matters. He, however, said that the readiness on the part of the plaintiff to perform his part of the contract has to be inferred from the notice issued by him against the defendant demanding execution of the sale deed and also from his subsequent conduct. He urged that the plaintiff has deposited the balance amount on 5-6-1970 during the pendency of the suit and he had also issued a notice (Ex. D-3) on 22-7-1965 asking the defendant to execute the sale deed as per terms agreed upon under Ex. P-1.

I do not think that Ex. D-3 could be considered as an evidence of willingness or readiness on the part of the plaintiff to perform his part of the contract, so far as the subject-matter of the suit is concerned. The agreement Ex. P-l was not confined only to the property belonging to the defendant. It was executed by the defendant agreeing to sell the property belonging to him and also of his sister-in-law Mallawa. Ex. D-3 was a notice issued by the plaintiff asking the defendant to execute the sale deed in respect of both those properties. But in the suit he has not claimed a decree for specific performance in respect of the property belonging to Mallawa. The plaintiff has not issued any other notice to the defendant stating that he has always been ready and willing to perform his part of the contract pertaining to the property belonging to defendant. The fact that he has deposited the balance amount on 5th June 1970 is admitted, but it cannot be weighed in favour of the plaintiff since the deposit was made after about four and half years from the date of Ex. P-1. Ex. P-1 prescribed a period of one year for performing the contract.

4. The plaintiff admittedly has not taken any such action before approaching the Court. Quite naturally he could not have pleaded those averments. Since the requirements of law have not been adhered to by the plaintiff, his suit for specific performance cannot be decreed. The appellate Court was therefore, justified in dismissing that claim and granting the alternate relief prayed for by the plaintiff.

5. In the result, the appeal fails and is dismissed, but in the circumstance, I make no order as to costs.

6. Appeal dismissed.


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