Full Judgment Text
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PETITIONER:
RAMAWADH (DEAD) BY LRS. &0RS.
Vs.
RESPONDENT:
ACHHALBARDTJBEY & ANR.
DATE OF JUDGMENT: 01/02/2000
BENCH:
S.P.Bharucha, N.S.Hegde, Ruma Pal
JUDGMENT:
BHARUCHA, J:
This appeal stands referred to a. Bench of three
Judges because the two learned Judges who heard i’t earlier
found difficulty In following the judgment of a Bench of two
learned - Judges in Jugra Singh & Anr vs. Labh Singh &
ors,. [(1995) 2 SCC 31].
It 1s not necessary to go into any great detail
insofar as the facts are concerned. The appellants before
us are the legal representatives of a subsequent purchaser
of certain property. They were defendants to a suit by one
Bachna. for specific performance of an earlier agreement to
sell that property to her. She had not pleaded in her
plaint that she was ready and willing to perform her part of
the agreement, but that plea was later introduced by way of
an amendment. The question now is in regard to whether she
or her legal representatives were, in fact, at all material
times ready and willing to perform their part .of
^ , ^ that agreement. The first appellate court
declined to periint the present appellants to plead and
contend that..Bachna and her legal representatives were
never prepared to perform their part of the agreement and,
for this purpose. It reeled upon the judgment of this Court
In the case of Jugraj Singh. The High Court, In second
appeal, affirmed that-view.
In Jugraj Singh’s case, upon substantially similar
facts, this Court noted Section 16(c) of the Specific Relief
Act and the dictum of the Privy Council in Ardeshir H.Mama
vs. F^ora Sasson (56 . Ind App 360) that in a suit for
specific performance the averment of readiness and
willingness on the plaintiff’s part, upto"the dafe of the
decree, was necessary. It a^so noted that thi’s Court in
Gomathi nayagam P i1 ^ a i vs. Palaniswami Nadar ((1967) 1
SCR 227] had held that it was for the plaintiff in a suit
for specific performance "to establish that he was, since
the date of the contract, continuously ready and willing to
perform his part of the contract. If he faiTs to do so, his
claim for specific performance must fall Jugraj Singh’s
case, however, held: ..* - f. ::, i-.. "
"That plea is specifically avanable to the
vendor/defendant. It 1s personal to him. The ^subsequent
purchasers have got only the right to defend their purchase
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on the premise that they have no prior knowledge of the
agreement of sa)e with the plaintiff. They are bona tide
purchasers for valuable consideration. Though they are
necessary parties to the suit, since any decree obtained by
the plaintiff would be binding on the subsequent purchasers,
the
-3- plea that the plaintiff must always be ready and
willing to perform his part of the contract must be
available only to the vendor or his iega^ representatives,
but not to the subsequent purchasers. "
The decision In Jugraj Singh’s case was noted by a
Bench of -two learned Judges In LakhIRam vs. Tr-ikha Ram
[(1998) 2 SCC 720] and doubted, but the appeal there was
decided on another point. .- Section 16 of the Specific
Performance Act reads:
"16. Personal bars to relief.--- Specific performance
of a contract cannot be enforced In favour of a person
(a) x x xx X (b) x x xx x
(c) who falls 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."
The obligation imposed by Section -16 1s upon the
court not to grant specific performance to a plaintiff who
has not met the requirements of clauses (a), (b) and (c)
thereof. Acourt may not, therefore, grant to a plaintiff
who has failed to aver and to prove -that he has performed
or has always been ready and willing to perform his part of
the agreement the specific performance whereof he seeks.
There 1s, therefore, no question of the plea being available
to one defendant and not to another. It is open
..." ’ ’ -4- to any defendant to contend and
establish that the mandatory requirement of Section 16(c)
has not been complied with and It 1s for the court to
determirte whether It has or has not been complied with
.:^nd,- depending upon its conclusion, decree or decline to
decree the suit.’ We are of the view that the decision in
Jugraj Singh’s case 1s erroneous. In the circumstances,
it becomes necessary to remand the suit ta.the trial
coyrt,name1y the Court of the Munsif, Gyanpur, Varanasi, to
consider whether or not it has been established that the
original ’.plaintiff Bachna and her legal representatives
had proved that they had performed or were always ready and
willing to perform the terms of the agreement for sale in
Bachna’s favour.
-,The appeal is allowed. The judgments and order
under appeal and the orders and decrees of the courts below
are set aside and the suit 1s remanded to the trial court
for decision of the .question ,stated above. The suit shall
be decided as expeditlously as possible, and within aperiod
of six months from today. . No order as- to costs