Specific Performance - 'Readiness' & 'Willingness' Can't Be Proved For First Time Before HC Through Affidavit Without Amending Pleadings : Supreme Court

The Supreme Court has observed that if it is found on appreciation of evidence in a suit for performance that the plaintiff had no willingness to perform his part of the contract, then the plaintiff is not entitled to a decree of specific performance.

"...for the purpose of passing a decree for specific performance, readiness and willingness has to be established and proved and that is the relevant consideration for the purpose of passing a decree for specific performance", the Supreme Court observed.

"Once it is found on appreciation of evidence that there was no willingness on the part of the plaintiff, the plaintiff is not entitled to the decree for specific performance", the Court added.

In the instant appeal, the Supreme Court noted that there were no pleadings regarding the readiness and willingness of the plaintiff to perform his part of contractual obligations. The Trial Court, on appreciation of evidence, found that there was no willingness on the part of the plaintiff. Accordingly, the suit was dismissed.

However, in appeal before the High Court, the plaintiff for the first time raised the pleading regarding readiness and willingness through an affidavit.  This was done without amending the plaint. The High Court relied on the affidavit to decree the suit. The Supreme Court observed that the High Court did not follow the proper procedure.

"The procedure adopted by the High Court relying upon the affidavit in a First Appeal by which virtually without submitting any application for amendment of the plaint under Order VI Rule 17 CPC, the High Court as a First Appellate Court has taken on record the affidavit and as such relied upon the same. Such a procedure is untenable and unknown to law", the bench comprising Justices MR Shah and AS Bopanna observed.

Disapproving the approach taken by the High Court, the Supreme Court said :

"First appeals are to be decided after following the procedure to be followed under the CPC. The affidavit, which was filed by the plaintiff and which has been relied upon by the High Court is just contrary to the pleadings in the plaint. As observed hereinabove, there were no pleadings in the plaint that he is ready and willing to purchase the property and get the sale deed executed of the property with tenants and the specific pleadings were to hand over the peaceful and vacant possession after getting the tenants evicted and to execute the sale deed. The proper procedure would have been for the plaintiff to move a proper application for amendment of the plaint in exercise of the power under Order VI Rule 17 CPC, if at all it would have been permissible in a first appeal under Section 96 read with Order XLI CPC. However, straightaway to rely upon the affidavit without amending the plaint and the pleadings is wholly impermissible under the law. Therefore, such a procedure adopted by the High Court is disapproved"

Also from the judgment : First Appellate Court Should Deal With All Issues And Evidence And Follow Procedure Under CPC: Supreme Court