Punjab-Haryana High Court
Harnek Singh & Anr vs Manohar Singh & Anr on 26 November, 2025
Author: Pankaj Jain
Bench: Pankaj Jain
RSA No.2164 of 2014 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.2164 of 2014 (O&M)
Date of decision : 26.11.2025
Harnek Singh and another ....Appellants
Versus
Manohar Singh and another ....Respondents
CORAM: HON'BLE MR. JUSTICE PANKAJ JAIN
Present : Mr. G.S. Sidhu, Advocate
for the appellants.
Mr. Suvir Tandon, Advocate
for respondent No.1.
PANKAJ JAIN, J. (ORAL)
Defendants No.1 to 4 are in second appeal.
2. For convenience, the parties hereinafter are referred to as by their original position before the Court of the First Instance, i.e., the appellants as 'defendants No.1 to 4' and respondent No.1 as 'plaintiff' and respondent No.2 as defendant No.5.
3. Plaintiff filed suit for specific performance propounding agreement to sell dated 19.03.2005 regarding 8 Bighas of land (hereinafter referred to as 'the suit land').
3.1. As per the case of the plaintiff, late Gulzar Singh agreed to sell aforesaid land in his favour for a total sale consideration of 10,00,000/-.
4,00,000/- were paid as earnest money. Out of which, 3,00,000/- were DEEPAK KUMAR 2025.12.09 09:48 I attest to the accuracy and integrity of this document RSA No.2164 of 2014 (O&M) 2 paid by way of cheque. Agreement to sell was reduced into writing and was witnessed by Parmanand and Jarnail Singh. Both the parties agreed to get the sale deed executed on or before 18.03.2006. Unfortunately, Gulzar Singh died in the month of August, 2005 prior to the date of execution of sale deed. Plaintiff claims to have always remained ready and willing to perform his part and filed the present suit seeking decree of specific performance.
4. Suit was contested by defendants No.1 to 4. Execution of agreement to sell was denied. As per the defendants, Gulzar Singh was addicted to liquor and for that reason there used to be dispute between Gulzar Singh and his wife Gurjeet Kaur. Gurjeet Kaur filed suit for maintenance. In the said lis, Gulzar Singh was being defended by the plaintiff, who is an advocate by profession. Plaintiff forged agreement to sell in order to usurp the property of Gulzar Singh. Defendants further claimed that the property being co-parcenary, Gulzar Singh was not legally competent to execute agreement to sell qua the same without there being any legal necessity.
5. Plaintiff in order to prove agreement to sell, examined Jarnail Singh, one of the attesting witnesses to the agreement to sell, as PW1. The other witness namely Parmanand was examined as PW2.
6. Both the Courts below found that the plaintiff successfully proved execution of agreement to sell and decreed the suit filed by the plaintiff.
DEEPAK KUMAR 2025.12.09 09:48 I attest to the accuracy and integrity of this document RSA No.2164 of 2014 (O&M) 37. Counsel appearing for the appellants has assailed the findings recorded by the Courts below. He submits that without there being any evidence to show that the plaintiff was ready and willing to perform his part of the agreement, Courts below decreed the suit, granting plaintiff main relief of specific performance. Reliance is being placed upon Section 16 of the Specific Relief Act, 1963 (hereinafter referred to as 'the 1963 Act'), to submit that the Courts below erred in ignoring the mandate of Section 16 and thus, the judgment and decree passed by the Courts below, need to be reversed.
8. During the course of arguments, on 19.05.2025 following order was passed:
"xxxx Counsel for the respondents/plaintiff to show as to how the finding recorded by the Courts below that since the defendants raised the plea of the agreement to sell being forged and fabricated, he is precluded from raising plea w.r.t. readiness and willingness, can be sustained.
Adjourned to 09.07.2025 for final hearing. In the meantime, execution of the decree shall remain stayed."
9. Thereafter, an application was moved by the respondent/ plaintiff invoking Order XLI Rule 27 CPC for leading additional evidence.
By way of said application, the plaintiff seeks permission to lead evidence qua documents marked as Annexure R-1 to Annexure R-9. Annexure R-1 is the copy of the challan which shows that after decree was passed in favour DEEPAK KUMAR 2025.12.09 09:48 I attest to the accuracy and integrity of this document RSA No.2164 of 2014 (O&M) 4 of the plaintiff, the plaintiff deposited the balance sale consideration within the time granted by the Court of First Instance. Plaintiff relies upon his Income Tax Returns for Financial Year commencing from 2006-2007 to 2012-2013, to show his financial capacity to perform his part of the agreement. Document, Annexure R-8, is a postal receipt showing that the defendants refused to accept legal notice, dated 25.10.2005 sent by the plaintiff.
10. I have heard counsel for the parties and have carefully gone through records of the case.
11. It is now settled proposition of law that in Punjab and Haryana, the second appeals preferred are to be treated as appeals under Section 41 of the Punjab Courts Act, 1918 and not Section 100 of the Code of Civil Procedure. Reference can be made to a judgment of Supreme Court in the case of 'Pankajakshi (dead) Through LRs and others vs. Chandrika and others', (2016) 6 SCC 157, wherein it has been held as under:-
"xxxx xxxx xxxx
23. Shri Viswanathan also relied upon a Division Bench judgment of this Court in Kulwant Kaur v. Gurdial Singh Mann [Kulwant Kaur v. Gurdial Singh Mann, (2001) 4 SCC 262] , to submit that this decision is an authority for the proposition that there is no need to expressly refer to a local law when the legislative intent to repeal local laws inconsistent with the Code of Civil Procedure is otherwise clear.
24. The judgment in Kulwant Kaur case [Kulwant Kaur v. Gurdial Singh Mann, (2001) 4 SCC 262] raised a question which arose on an application of Section 41 of the Punjab Courts Act, 1918. This DEEPAK KUMAR 2025.12.09 09:48 I attest to the accuracy and integrity of this document RSA No.2164 of 2014 (O&M) 5 section was couched in language similar to Section 100 of the Code of Civil Procedure as it existed before the Code of Civil Procedure (Amendment) Act, 1976, which amended Section 100 to make it more restrictive so that a second appeal could only be filed if there was a substantial question of law involved in the matter. The question this Court posed before itself was whether Section 41 stood repealed by virtue of Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976, which reads as under :
"97. Repeal and savings.--(1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall, except insofar as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed."
This Court concluded that Section 41 of the Punjab Courts Act was repealed because it would amount to an amendment made or provision inserted in the principal Act by a State Legislature. This Court further held that, in any event, Section 41 of the Punjab Courts Act being a law made by the Legislature of a State is repugnant to a later law made by Parliament, namely, Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976, and that therefore, by virtue of the operation of Article 254 of the Constitution of India, the said provision is in any case overridden. In arriving at the aforesaid two conclusions, this Court held [Kulwant Kaur v. Gurdial Singh Mann, (2001) 4 SCC 262.
"27. Now we proceed to examine Section 97(1) of the Amendment Act and the amendment of Section 100 CPC by the said 1976 Act. Through this amendment, right to second appeal stands further restricted only to lie where, 'the case involves a substantial question of law'. This introduction definitely is in conflict with Section 41 of the Punjab Act which was in pari materia with unamended Section 100 CPC. Thus, so long there was no specific provision to the contrary in this Code, Section 4 CPC saved special or local law. But after it comes in conflict, Section 4 CPC would not save, on the contrary its language implied would make such special or local law inapplicable. We may examine now the submission for the respondent based on DEEPAK KUMAR 2025.12.09 09:48 I attest to the accuracy and integrity of this document RSA No.2164 of 2014 (O&M) 6 the language of Section 100(1) CPC even after the said amendment. The reliance is on the following words:
'100. Second appeal.--(1) Save as otherwise expressly provided ... by any other law for the time being in force....' These words existed even prior to the amendment and are unaffected by the amendment. Thus, so far it could legitimately be submitted that, reading this part of the section in isolation it saves the local law. But this has to be read with Section 97(1) of the Amendment Act, which reads:
'97. Repeal and savings.--(1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall, except insofar as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed.' (Noticed again for convenience.)
28. Thus, language of Section 97(1) of the Amendment Act clearly spells out that any local law which can be termed to be inconsistent perishes, but if it is not so, the local law would continue to occupy its field.
29. Since Section 41 of the Punjab Act is expressly in conflict with the amending law viz. Section 100 as amended, it would be deemed to have been repealed. Thus, we have no hesitation to hold that the law declared by the Full Bench of the High Court in Ganpat [Ganpat v. Ram Devi, AIR 1978 P&H 137] cannot be sustained and is thus overruled."
25. We are afraid that this judgment in Kulwant Kaur case [Kulwant Kaur v. Gurdial Singh Mann, (2001) 4 SCC 262] does not state the law correctly on both propositions. First and foremost, when Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976 speaks of any amendment made or any provision inserted in the principal Act by virtue of a State Legislature or a High Court, the said section refers only to amendments made and/or provisions inserted in the Code of Civil Procedure itself and not elsewhere. This is clear from the expression "principal Act" occurring in Section 97(1). What Section 97(1) really does is to state that where a State Legislature makes an amendment in the Code of Civil Procedure, which amendment will apply only within the four corners of the State, being made under Schedule VII List III Entry 13 to the Constitution of India, such amendment shall stand DEEPAK KUMAR 2025.12.09 09:48 I attest to the accuracy and integrity of this document RSA No.2164 of 2014 (O&M) 7 repealed if it is inconsistent with the provisions of the principal Act as amended by the Parliamentary enactment contained in the 1976 Amendment to the Code of Civil Procedure. This is further made clear by the reference in Section 97(1) to a High Court. The expression "any provision inserted in the principal Act" by a High Court has reference to Section 122 of the Code of Civil Procedure by which High Courts may make rules regulating their own procedure, and the procedure of civil courts subject to their superintendence, and may by such rules annul, alter, or add to any of the rules contained in the First Schedule to the Code of Civil Procedure.
26. Thus, Kulwant Kaur [Kulwant Kaur v. Gurdial Singh Mann, (2001) 4 SCC 262] decision on the application of Section 97(1) of the Code of Civil Procedure (Amendment) Act, is not correct in law.
27. Even the reference to Article 254 of the Constitution was not correctly made by this Court in the said decision in Kulwant Kaur case [Kulwant Kaur v. Gurdial Singh Mann, (2001) 4 SCC 262] . Section 41 of the Punjab Courts Act is of 1918 vintage. Obviously, therefore, it is not a law made by the Legislature of a State after the Constitution of India has come into force. It is a law made by a Provincial Legislature under Section 80-A of the Government of India Act, 1915, which law was continued, being a law in force in British India, immediately before the commencement of the Government of India Act, 1935, by Section 292 thereof. In turn, after the Constitution of India came into force and, by Article 395, repealed the Government of India Act, 1935, the Punjab Courts Act was continued being a law in force in the territory of India immediately before the commencement of the Constitution of India by virtue of Article 372(1) of the Constitution of India. This being the case, Article 254 of the Constitution of India would have no application to such a law for the simple reason that it is not a law made by the Legislature of a State but is an existing law continued by virtue of Article 372 of the Constitution of India. If at all, it is Article 372(1) alone that would apply to such law which is to DEEPAK KUMAR 2025.12.09 09:48 I attest to the accuracy and integrity of this document RSA No.2164 of 2014 (O&M) 8 continue in force until altered or repealed or amended by a competent legislature or other competent authority. We have already found that since Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976 has no application to Section 41 of the Punjab Courts Act, it would necessarily continue as a law in force. Shri Viswanathan's reliance upon this authority, therefore, does not lead his argument any further.
xxxx xxxx xxxx"
Thus, the requirement is question of law and not substantial question of law.
12. The issue that needs consideration of this Court in the present case is:
"Whether Courts below rightly held plaintiff to be ready and willing and thus rightly decreed the suit filed by the plaintiff?"
13. Prior to adverting to the facts of the present case, Section 16 of the 1963 Act, needs to be perused:
"16. Personal bars to relief.--Specific performance of a contract cannot be enforced in favour of a person--
[(a) who has obtained substituted performance of contract under section 20; or]
(b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or DEEPAK KUMAR 2025.12.09 09:48 I attest to the accuracy and integrity of this document RSA No.2164 of 2014 (O&M) 9
(c) [who 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 the performance of which has been prevented or waived by the defendant.
Explanation.--For the purposes of clause (c),--
(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;
(ii) the plaintiff 4 [must prove] performance of, or readiness and willingness to perform, the contract according to its true construction.
14. The aforesaid provision has been interpreted by the Supreme Court in the case of 'J.P. Builders vs. A. Ramadas Rao' (2011) 1 SCC 429 to observe as under:
"xxxxx xxxxx xxxxx
21. Among the three clauses, we are more concerned about clause (c). "Readiness and willingness" is enshrined in clause (c) which was not present in the old Act of 1877. However, it was later inserted with the recommendations of the 9th Law Commission's Report. This clause provides that the person seeking specific performance must prove that he has performed or has been ready and willing to perform the essential terms of the contract which are to be performed by him.
22. The words "ready" and "willing" imply that the person was prepared to carry out the terms of the contract. The distinction between "readiness" and "willingness" is that the former refers to financial capacity and the latter to the conduct of the plaintiff wanting performance.
Generally, readiness is backed by willingness.
DEEPAK KUMAR 2025.12.09 09:48 I attest to the accuracy and integrity of this document RSA No.2164 of 2014 (O&M) 1023. In N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao [(1995) 5 SCC 115) at SCC para 5, this Court held: (SCC pp. 117-18) "5.... Section 16(c) of the Act envisages that the plaintiff must plead and prove that he had 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 those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract."
24. In P. D'Souza v. Shondrilo Naidu [(2004) 6 SCC 649] this Court observed: (SCC p. 654, paras 19 and 21) "19. It is indisputable that in a suit for specific performance of contract the plaintiff must establish his readiness and willingness to perform his part of contract. The question as DEEPAK KUMAR 2025.12.09 09:48 I attest to the accuracy and integrity of this document RSA No.2164 of 2014 (O&M) 11 to whether the onus was discharged by the plaintiff or not will depend upon the facts and circumstances of each case. No straitjacket formula can be laid down in this behalf......
***
21.... The readiness and willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether the defendant did everything which was required of him to be done in terms of the agreement for sale."
25. Section 16(c) of the Specific Relief Act, 1963 mandates "readiness and willingness" on the part of the plaintiff and it is a condition precedent for obtaining relief of grant of specific performance. It is also clear that in a suit for specific performance, the plaintiff must allege and prove a continuous "readiness and willingness" to perform the contract on his part from the date of the contract. The onus is on the plaintiff.
26. It has been rightly considered by this Court in R.C. Chandiok v. Chuni Lal Sabharwal [(1970) 3 SCC 140) that "readiness and willingness" cannot be treated as a straitjacket formula. This has to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned.
27. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non-compliance with this statutory mandate, the court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. "Readiness and willingness" to perform the part of the contract has to be determined/ascertained from the conduct of the parties.
xxxxx xxxxx xxxxx" DEEPAK KUMAR 2025.12.09 09:48 I attest to the accuracy and integrity of this document RSA No.2164 of 2014 (O&M) 12 (emphasis supplied)
15. Thus, readiness and willingness being two different expressions, each of them connotes different meaning. In order to succeed in a suit filed for specific performance, plaintiff is required to clear the bar of Section 16 of the 1963 Act dehors the plea set up by the defendants.
16. On the Issue of readiness and willingness, Trial Court observed as under:
"18. Once the defendant has taken the plea that the agreement to sell in question is false, forged and fabricated document, in that eventuality the defendant has no right to taken this plea that plaintiff is not ready and willing to perform his part of agreement to sell. Whereas plaintiff prior to the institution of present suit had served a legal notice dated 4.10.2006 of defendants requesting them to execute and register the sale deed in his favour and copy of legal notice has been proved on file as Ex.P3 and second notice dated 25.10.2005 the copy of which is Ex.P4 and these were served upon the defendants through registered Post AC and postal receipts have been proved on file as Ex.P5 and Ex.P6 and postal envelops show that the defendants have refused to accept the notices and that means constructive notice has been served upon the defendants and the returned postal envelop is Ex.P7 and this is more than sufficient compliance on part of the plaintiff to show his readiness and willingness."
17. In appeal, the Lower Appellate Court affirmed the findings recorded by the Court of First Instance. In the entire judgment running into 20 paragraphs, the Lower Appellate Court affirmed the aforesaid findings recorded by the Trial Court only observing as under:
DEEPAK KUMAR 2025.12.09 09:48 I attest to the accuracy and integrity of this document RSA No.2164 of 2014 (O&M) 13"xxx It is also evident that the plaintiff always remained ready and willing to perform his part of contract and is still ready and willing to do so."
18. Thus, Trial Court erred in observing that since defendants have disputed the agreement to sell, plaintiff is not required to prove readiness and willingness.
19. Considering the evidence on record, this Court finds that though plaintiff can claim his willingness but there is no evidence to prove his readiness. An attempt has been made by the plaintiff to prove his financial capacity invoking Order XLI Rule 27 CPC, but there is no explanation as to how the plaintiff failed to lead evidence qua his financial capacity on the appointed date. There is nothing on record to suggest that the plaintiff on the appointed date, was in possession of the remaining sale consideration.
20. In view of above, this Court finds that the plaintiff having failed to prove his readiness, cannot be held entitled for the main relief of specific performance. Accordingly, the judgment and decree passed by the Courts below, are ordered to be set aside.
21. Keeping in view that the plaintiff successfully proved execution of agreement to sell and the payment of earnest money, alternate relief of recovery of earnest money of 4,00,000/- is ordered along with interest @ 9% per annum from the date of agreement to sell till the date of actual realization.
DEEPAK KUMAR 2025.12.09 09:48 I attest to the accuracy and integrity of this document RSA No.2164 of 2014 (O&M) 1422. Accordingly, the appeal is partly allowed.
23. Pending application, if any, shall also stands disposed off.
November 26, 2025 (PANKAJ JAIN)
Dpr JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
DEEPAK KUMAR
2025.12.09 09:48
I attest to the accuracy and
integrity of this document