It is the onus of the party desiring specific relief to prove his readiness and willingness to perform his part of the terms of the contract.
Date of Judgement:
Justice Abhay Manohar Sapre
Justice Dinesh Maheswari
Appellant – Mehboob-Ur-Rehman (Dead) through LRs.
Respondent – Ahsanul Ghani
The burden lies on the party desiring a specific relief to prove that he is willing and ready to perform his part of the contract to overcome Section 16(c) of the Specific Relief Act.
- Section 16(c) of the Specific Relief Act, 1963 – This section provides that a specific performance cannot be enforced if the person claiming it fails to 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 of the performance of which has been prevented or waived by the defendant.
- The appellant and respondent entered into an agreement for sale of a property. A certain sum was paid as earnest money and the remaining amount was to be paid when the sale deed was executed and registered. Subsequent to the agreement, the Urban Land Act was passed which prohibited transfer of without a permission from the competent authority. The appellant alleged that even after many requests, the respondent failed to register the same according to the Act. For execution of the deed, the appellant filed suit for specific relief.
- The Trial Court allowed the petition on the ground that the appellant had showed his willingness to perform his part of the contract and the respondent failed to do so. The respondent preferred an appeal before the district judge. The main contention of the respondent was that the plaint of the appellant lacked necessary averments proving his willingness to perform his part of the contract. During this proceeding, the appellant requested amendment of the plaint to improve his averments. The District Court and High Court rejected the amendment and held that the appellant did not provide convincing evidence for showing his willingness to perform his part of the contract. Hence, an appeal was preferred before this court.
- Whether the rejection of application for amendment of plaint requested by the appellant was valid?
- Whether the willingness to perform the appellant’s part of the contract proved by the appellant?
- This court agreed with the High Court’s observation that there was not convincing proof of the appellant’s willingness to perform his part of the contract. The court held that Section 16 of the Act specifically provides directions for cases wherein the relief sought shall not be enforced. S.16(c) provides for person who does not show his willingness or readiness to perform his part of the contract. Hence, the court noted that it is imperative that the appellant must have made averments regarding the same.
- This court observed that there was not even single remote suggestion in the plaint regarding his willingness to perform his part.
- Regarding the application for amending the plaint, the court noted that this attempt was made only after the contention of the respondent in the first appeal. The court held that the alleged attempt to improve the plaint was only an exercise in futility.
- Hence, the appeal was dismissed.
Section 16 of the Specific Relief Act specifically provides for cases wherein the suit for specific performance should not be enforced. Hence, it is the burden of the plaintiff to prove in his plaint that he was willing to perform his part of the contract. Although it is held that it need not be in any particular wordings or phrase, the requirement to aver the same in the plaint and to prove the same is not waived.
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