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Report No. 147

Chapter 5

Readiness and Willingness

5.1. Section 16(c) of the Act, which was inserted primarily to give effect to the principle that he who seeks the aid of equity must himself do equity has created certain difficulties and given rise to certain problems of interpretation. The clause runs thus:-

"Specific performance of a contract cannot be enforced in favour of a person-

(a) * * * ** *

(b) * * * ** *

(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."

5.2. Two difficulties caused by the words "fails to aver and prove", have come to the fore. The first is that they obviously refer to an averment in the plaint and, where the averment is traversed, proof in the course of the trial by the plaintiff that he is so ready and willing.1 By some mistake, in the headnote to the Privy Council ruling in Ardeshir Mama's case,2an impression has been created to the effect that there should be readiness and willingness on the part of the plaintiff to perform the contract right up to the date of the decree.3 The second is the nature and form of the averment that has to be made by the plaintiff.

1. Gomathinayagam Pillai v. Palaniswamy Nadar, AIR 1967 SC 868. In Pakhar Singh v. Krishan Singh, AIR 1947 Raj 112, it has been mentioned that the readiness and willingness should cover the period from the date of the contract to the date of filing the suit.

2. Ardeshir Mama v. Flora Sasson, AIR 1928 PC 208 which was applied in Gomathinayagam (supra).

3. See Mulla Specific Relief Act, 10th Edn., p. 997.

5.3. So far as the first of these difficulties is concerned, no remedial measures are necessary. The court can adjudicate the readiness and willingness of the plaintiff only on the basis of the averment in the plaint and the evidence at the trial. There is no way by which his readiness and willingness beyond these dates and Up to the date of the decree can be ascertained or adjudged nor is it called for.1 Moreover, it will be appreciated that, if the plaintiff after the trial develops an unwillingness or lack of readiness to perform his obligations under the contract, he will either not press for a decree for specific performance, or if he has obtained one, will refrain from putting it into execution.

1. Gomathinayagam Pillai v. Palaniswami Nadar, AIR 1967 SC 228.

5.4. In regard to the second question, the difficulty is caused by the proformas prescribed by the Code of Civil Procedure, 1908 for plaints in respect of suits for specific performance (Sch. I, forms 47 & 48). Questions have been raised: (1) as to whether the averment in the plaint should be in exactly the same terms as prescribed in the proforma or whether a substantial compliance therewith will suffice, and (2) whether an initial omission to make such an averment in the plaint is fatal or can be permitted to be amended subsequently.

5.5. The first question is well settled by the decision of the Supreme Court in Premrai v. D.L.F. Housing & Construction (P) Ltd., AIR 1968 SC 1355; Ouseph Verghese v. Joseph Aley, 1969 (2) SCC 539 and Abdul Khader Rowther v. Sarabai, AIR 1990 SC 682 laying down the proposition that in absence of averment in the prescribed form, the suit should stand dismissed.1

This would be so even though there is a close nexus between the provisions of the Specific Relief Act and the formats of the suit prescribed under C.P.C., as pointed out in the Ninth Report of the Law Commission. Once an averment is made in the plaint on the lines of the section, courts have invariably applied the rule of substantial compliance and declined to dismiss the suit on a mere technicality as to its form.

But Indian courts seem to have almost unanimously2 taken a view, following the dicta of the Supreme Court in the Gomathinayagam case (supra)3, that the complete absence of an averment in the plaint will be fatal to the suit.4 If this is so, the question would arise whether it would be open to the court to permit the plaintiff in such a suit, either at his request or oven suo motu by the court, to amend the plaint, either at the trial or at the appellate stage, so as to include an averment originally omitted to be included.

1. See Dhinn Singh v. Tara Chand, AIR 1984 All 5, and Kamdev Nath Choudhary v. Devendar Kumar Nath, AIR 1979 Gau 65.

2. Idris Ali v. Abdul Samad, AIR 1973 Gau 132 and Kamdevnath v. Devendra Kumar Nath, AIR 1979 Gau 65, however, voiced exceptions to the rule.

3. AIR 1967 SC 228; see also Prem Raj v. DLF Ltd., AIR 1968 SC 1355.

4. See Madan v. Kamaluddin, AIR 1930 Pat 121, referred to in the Ninth Report and the later cases cited in f.n. (77) to (84) of Mulla Specific Relief Act, (10th Edn.) on p. 998. The Supreme Court of Pakistan, however, seems to have taken a different view: Mulla Specific Relief Act, 10th Edn., p. 998, f.n. (89).

5.6. In the above state of the authorities, one view may be that the above difficulties may be left to be sorted out by judicial determination in each case and that the rule in the statute, properly interpreted,. does not involve any irremediable hardships. It may be said that it is always open to a plaintiff to withdraw such a defective plaint in terms of Order 23, rule 1(2) of the Code of Civil Procedure with liberty to file a fresh suit, if possible, within the period of limitation,1 or alternatively, that it is open to him to seek an amendment of the plaint.2

1. Thankamma Mathew v. Azamatulla Khan, JT 1991 (1) SC 35.

2. Code of Civil Procedure, Order 6, rule 17. If he fails to do so, he cannot blame the law or the court and will have to thank himself and face the consequence of the suit's dismissal.

5.7. We do not think that this course is advisable. Real difficulties will continue to arise and suits may continue to run the danger of dismissal on a technical plea if the section is left as it is. As pointed, out above, courts will insist that the pleadings must contain a formal plea of readiness and willingness and Supreme Court decisions1 have sometimes been understood as insisting also on a rigid conformity with the requirements of Forms Nos. 47 and 48 in the First Schedule.

Although, the state of pleadings being what it is in India, a liberal judicial attitude towards amendment of pleadings is desirable and is also in general, adopted by Courts, it does not appear to be a satisfactory solution to leave issues for the Court's determination in individual cases. Defective pleadings sometimes give rise to frivolous issues.2 The filing of defective pleadings, the subsequent submission of an application, often belatedly, for amendment and the hearing thereon are all steps which clog the speedy disposal of the case.

Also occasionally courts do not grant an amendment3 and, sometimes feel constrained to do so in view of certain Supreme Court decisions.4 It is, therefore, better that the reference to a specific averment in the plaint regarding readiness and willingness is omitted from the statute, though such readiness and willingness will have to be established on the evidence before a favourable decree can be obtained. We, therefore, recommend, in order to avoid unnecessary litigation, that the words "aver and" in section 16(c) be deleted.

1. Ouseph Verghese v. Joseph Aley, 1969 (2) SCC 439; A.K. Rowther v. P.K. Sarabhai, AIR 1990 SC 680.

2. See Sambasiva Rao v. Bangaru Raju, AIR 1985 AP 392; Marakkair v. Thavalaparabil Appu, AIR 1978 Ker 1.

3. See Mahamood Khan v. Ayab Khan, AIR 1978 All 463; Ram Sighasan v. Sudama Peasad, AIR 1982 Pat 200.

4. Ganesh Trading Co. v. Moji Ram, AIR 1078 SC 484.

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