When court is bound to dismiss suit for specific performance of contract?
Section 16 ( c) of the Specific Relief Act, I have perused the plaint in entirety.
Plaintiff has not stated anywhere that she is or has been ready and willing to
perform the essential terms of the contract. Although in para-4 of the plaint it is
stated that defendants did not file necessary application for getting sale
permission from competent authority and that plaintiff approached the
defendants on several dates but nowhere a specific date has been mentioned.
Agreement was executed on 28.1.1995 and the suit was instituted on 5.2.1996.
Plaintiff was duty bound to state as to what had happened in the meantime and
as to what action the plaintiff had taken for the purpose of getting the sale deed
executed. The mandate of Section 16 ( c ) of the Specific Relief Act is clear. It
provides that specific performance of a contract cannot be decreed unless
plaintiff avers and proves that he has performed his part of the contract or that
he has been ready and willing to do the same. Even under the Code of Civil
Procedure, Appendix-A provides essential of a plaint in a suit for specific
performance of contract. In Form No. 47 and 48 to Appendix-A of the Code of
Civil Procedure, it would appear that the averment as to readiness and
willingness has been prescribed under the Form .
14. In the case of JP Builders(supra) Hon’ble Supreme Court observed that
Section 16 ( c ) of the Specific Relief Act mandates averment as to readiness and
willingness on the part of the plaintiff and that it is a condition precedent for
obtaining relief. The plaintiff is duty bound to allege and prove a continuous
readiness and willingness to perform the contract on his part from the date of
the contract and that the onus is on the plaintiff alone. In para-27 of this
judgment, Hon’ble Supreme Court has held that when there is non-compliance
with these statutory mandates, court is not bound to grant specific performance
and is left with no other alternative but to dismiss the suit.
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM
AND ARUNACHAL PRADESH)
RFA. No. 152/ 2005
Smti Niva Baruah
-Versus-
Smti Mamoni Baruah
PRESENT
HON’BLE MR. JUSTICE N. CHAUDHURY
Date of Judgment : 19.05.2015
Citation;AIR 2016(NOC)139 GAUHATI
https://www.lawweb.in/2016/02/when-court-is-bound-to-dismiss-suit-for.html
