Karnataka High Court
M/S. Soms Realtors And Developers vs Mr. Robert Zomawia Street on 30 July, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 10.07.2025
Pronounced on : 30.07.2025 R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.18101 OF 2025 (GM - CPC)
BETWEEN:
M/S. SOMS REALTORS AND DEVELOPERS
REGISTERED UNDER
INDIAN PARTNERSHIP ACT, 1932
NO.569, 11TH MAIN, IV BLOCK,
JAYANAGAR,
BENGALURU - 560 011,
REPRESENTED BY ITS
MANAGING PARTNER
MR. J. SOMASHEKAR,
S/O JAYRAJ C.,
AGED ABOUT 53 YEARS.
... PETITIONER
(BY SRI RAJESWARA P.N., ADVOCATE)
AND:
1 . MR. ROBERT ZOMAWIA STREET
S/O LATE E. STREET,
AGED 88 YEARS,
RESIDING AT WHITE HALL,
ST. JOHN SCHOOL,
2
SHILLONG,
MEGHALAYA STATE.
2 . MS. JEANNETTE RALTE STREET,
D/O. ROBERT ZOMAWIA STREET,
AGED ABOUT 47 YEARS,
RESIDING AT WHITE HALL,
ST. JOHN SCHOOL, SHILLONG,
MEGHALAYA STATE.
3 . MR. DAVID RALTE STREET,
S/O. ROBERT ZOMAWIA STREET,
AGED 50 YEARS,
RESIDING AT WHITE HALL,
ST. JOHN SCHOOL, SHILLONG,
MEGHALAYA STATE.
ALSO AT
ST. DOMINIC SCHOOL,
JIGALA ROAD,
ATTIBELE VILLAGE,
ANEKAL TALUK,
BANGALORE URBAN DISTRICT.
... RESPONDENTS
(BY SRI PRAKASH B.N., ADVOCATE FOR R1 AND R2;
NOTICE TO R3 IS DISPENSED WITH VIDE ORDER DATED
26.06.2025,)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
RECORDS IN OS NO. 563/2008 ON THE FILE OF HON'BLE II ADDL.
SENIOR CIVIL JUDGE AND JMFC, ANEKAL; SET ASIDE ORDER DTD
09.06.2025 (ANNEXURE-A) PASSED BY THE HON'BLE II ADDL.
SENIOR CIVIL JUDGE AND JMFC, ANEKAL IN OS NO. 563/2008 ON
IA NO. 17 AND CONSEQUENTLY ALLOW THE APPLICATION IA NO.
3
17 (ANNDXURE-H) FILED UNDER ORDER XII RULE 6 OF THE CPC,
1908 AS PRAYED FOR BY THE PETITIONER IN IA NO. 17.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 10.07.2025, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner/plaintiff is before this Court calling in question
an order dated 9-06-2025 passed by the II Additional Senior Civil
Judge and JMFC, Anekal in O.S.No.563 of 2008 declining to accede
to I.A.No.17 filed for drawing up a partial decree under Order XII
Rule 6 of the CPC.
2. Heard Sri P.N.Rajeswara, learned counsel appearing for the
petitioner and Sri B.N. Prakash, learned counsel appearing for
respondents 1 and 2.
3. The essential factual tapestry is as follows:
The 1st respondent is said to be the absolute owner of 36
acres of land in Indlabele Village, Attibele Hobli, Anekal Taluk
4
having purchased the same in his name and in the names of his
wife and children, who are other defendants in the suit. On
26-10-2007 the 1st respondent and the petitioner enter into two
agreements of sale in respect of the aforementioned 36 acres of
land in two parcels, at the rate of ₹50/- lakhs per acre. A
subsequent agreement is also entered into between the parties in
furtherance of agreements of sale. A registered General Power of
Attorney ('GPA') is executed by the 1st respondent in favour of the
petitioner on 03-12-2007. It appears that the 1st respondent did
not come forward to get the sale deed registered and began to
demand ₹1.25 crores per acre towards the sale consideration.
Therefore, the plaintiff institutes a suit in O.S.No.563 of 2008
seeking specific performance of the agreement so entered into
between the parties. The said suit is pending adjudication.
3.1. In the said suit, the petitioner files an application under
Order XII Rule 6 of the CPC seeking the Court to draw up a decree
on the alleged admission of 40% share in the property in favour of
the petitioner/plaintiff. The concerned Court, by the order
impugned, rejects the said application holding that the said
5
application cannot be considered at this stage. It is this that has
driven the plaintiff/petitioner to this Court in the subject petition.
4. The learned counsel appearing for the petitioner would
vehemently contend that defendant No.1/1st respondent who had
entered into the agreements of sale has admitted that 40% of the
property would undoubtedly be transferred in favour of the
petitioner and, therefore, partial decree under Order XII Rule 6 CPC
ought to have been drawn by the concerned Court. He would
contend that the order of the concerned Court is in ignorance of the
well settled principles of law as afore-submitted. He would seek the
Court to allow the petition and direct the concerned Court to draw
up partial decree in terms of the admission of the 1st respondent.
5. Conversely, the learned counsel appearing for the
respondents would submit that for the last 17 years the suit is
pending. At no point in time the plaintiff has projected readiness
and willingness to come forward to get the sale deed registered.
Without demonstration of readiness and willingness in a suit for
specific performance, let alone a decree, even a partial decree
6
cannot be drawn is the statement of the learned counsel appearing
for the respondents. He would, however, seek dismissal of the
petition, with a direction to the concerned Court to conclude the suit
within the time fixed by this Court, as it is 17 years old and it is a
suit for specific performance.
6. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
7. The afore-narrated facts are a matter of record. The
plaintiff enters into two agreements of sale with the 1st defendant
on 26-10-2007. They are registered agreements of sale. In terms of
the said agreements ₹50/- lakhs per acre was the sale
consideration. Another unregistered agreement for sale
consideration of ₹1.25 crores per acre was also entered into
between the parties. These are two agreements one registered and
the other unregistered. Pursuant to the sale agreement, a GPA is
also executed by the 1st defendant in favour of the plaintiff in
respect of the suit schedule property. The 1st defendant is said to
have declined to come forward for registration on the score that the
7
subsequent agreement which was entered into between the parties
was for ₹1.25/- crores per acre as against ₹50/- lakhs per acre in
terms of an earlier agreement. When the defendants did not come
forward to execute the sale deed for the agreed amount i.e., ₹50/-
lakhs per acre, legal notice is caused upon the defendants by the
plaintiff on 14-02-2008 in which the plaintiff agrees to increase the
sale consideration by ₹5/- lakhs per acre. The notice did not fructify
to any agreement between the parties.
8. The plaintiff then institutes the suit in O.S.No.563 of 2008
seeking relief of specific performance of registered agreements
entered into between the parties. The respondents/defendants
entered appearance and filed their written statement. Issues are
framed by the concerned Court on 04-01-2013. During the
subsistence of proceedings, an application comes to be filed by the
plaintiff in I.A.No.17 under Order XII Rule 6 of the CPC praying the
concerned Court to draw up a partial decree for 40% of the share of
the 1st defendant in the suit schedule properties in favour of the
petitioner/plaintiff. The defendants filed their objections and
written arguments are also filed on the application. The concerned
8
Court rejects the application, on the score that it is not a stage at
which a partial decree can be drawn. It is this that has driven the
plaintiff to this Court. Since the impugned order rejects the claim of
the petitioner, I deem it appropriate to notice the same. I.A.No.17
comes to be rejected by the following order:
"Orders on IA No.17
IA No.17 filed by plaintiff U/o 12 Rule 6 r/w Section 151
of CPC, praying to decree the suit in part, i.e., with respect to
40% share of defendant No.1.
2. In support of application managing partner of plaintiffs
swear to an affidavit and submitted that they filed suit for relief
of specific performance of contract dated 26.10.2007, executed
by GPA holder of the plaintiff, as per agreement of sale and GPA
they paid ₹50,00,000/- as advance consideration. Defendant
No.1 in his written statement clearly submitted that he is owner
of 40% of the share in schedule properties and he also admitted
that he agreed to sell his share in the suit schedule properties.
Defendant No.1 in his written statement admitted the execution
of agreement with respect to 40% of his share and also
admitted that additional 5 lakhs per acre was demanded in
written statement defendant No.1 admitted the sale agreement
and its execution towards 40% of his share. The admitted fact
need not be proved. The admissions made by defendant No.1
are sufficient to decree the suit by invoking 12 Rule 6 of CPC
with respect to 40% share of the 1st defendant.
3. Application resisted by filing written objection and by
contending that application filed only to drag and protract the
proceedings. There is no admission in the written statement to
decree the suit as prayed by the plaintiff. Even though issues
framed on 14-10-2008 without adducing evidence plaintiff filed
false application to drag and protect the proceedings. Plaintiff
filed suit by contending that defendant No.1 being a absolute
owner of the schedule property by agreeing to sell the schedule
9
properties for consideration of ₹50/- lakhs per acre executed
sale deed dated 26-08-2007 and prayed to direct the
defendants to execute sale deed, but in instant application
plaintiff pleaded against to the pleadings of the plaint.
Application is not maintainable, hence prayed to dismiss the
application.
4. Heard both side, perused materials placed before the
court.
5. Suit filed for relief of specific performance of
contract on the basis of agreement dated 26-10-2007 and
to direct the defendants to execute sale deed in favour of
the schedule properties and to declare defendant No.1 is
the sole and absolute owner of the schedule properties.
Instant application filed praying to decree the suit with
respect 40% share of the defendant No.1. Plaintiff in the
plaint stated that defendant No.1 is the sole owner and
prayed to declare defendant No.1 as a sole owner of the
property, but in instant application plaintiff himself
admitting that defendant No.1 is the owner of 40% share,
this is against to pleadings. On perusal of written
statement filed by 1st defendant it can be gathered that
1st defendant admitted that he is the owner of 40% of
share in the schedule properties, remaining properties
were belonged to defendant No.2 to 4. Defendant No.1
also admitted that he executed sale agreements with
respect to his share in the schedule properties in favour
of the plaintiff. On the instigation of plaintiff and his
family friend T.Sudhakar. He also stated that he
terminated the sale agreement by sending letter to the
plaintiff. Defendant No.1 is also stated that he requested
plaintiff to pay ₹1,30,00,000/- per acre, instead of paying
the amount plaintiff postponed to mobilize the funds and
started to give false publication. On bare reading of
written statement filed by defendant No.1 it is clear that
defendant No.1 admitted execution of sale agreement, in
favour of the plaintiff, with respect to 40% of his share
and denied the readiness and willingness. In suit for
specific performance, it is mandate duty of the plaintiff to
prove readiness and willingness, without that specific
performance cannot be granted in favour of the plaintiff.
Defendant No.1 denied the readiness and willingness,
10
hence, it is mandatory on the part of plaintiff to prove the
readiness and willingness, without establishing that suit
cannot be decreed on the basis of admission by invoking
Order 12 Rule 6 of CPC, with above observation I.A.No.17
filed by plaintiff U/o 12 Rule 6 r/w Section 151 of CPC, is
disposed off, as it cannot be considered at this stage.
For plaintiff evidence as last chance by 28-06-2025."
(Emphasis added)
The concerned Court holds that the suit is filed for specific
performance of contract based upon the agreement dated
26-10-2007. The application is filed seeking to decree the suit in
respect of 40% of the share. Why the plaintiff seeks the same is in
the agreement executed on 26-10-2007. The share of the 1st
defendant is depicted in the agreement of sale as follows:
"II. WHEREAS Mr. Dominic Ralte Street died on
02.08.2019 leaving the vendor as his only legal heir and
in this manner, vendor become the owner of 40% share
in the schedule property."
(Emphasis added)
In the written statement it is reiterated that the 1st defendant
became the owner of 40% share in the schedule property. It reads
as follows:
11
"Whereas Mr. Dominic Ralte Street died on
02.08.1993 leaving the Vendor as his only legal heir and
in this manner, the vendor become the owner of 40%
share in the schedule property."
(Emphasis added)
Further, at paragraph 34 of the written statement the 1st defendant
admits as follows:
".... Defendant No.1 was constantly persuaded by T.Sudhakar to
complete the sale deed registration, while taking the
responsibility of getting a sale price of ₹1,25,00,000/- per acre
for Defendant No.1's share in the Schedule Properties. Since
T.Sudhakar was a close and trusted friend of long standing,
Defendant No.1 chose to once again give the Plaintiff a fair
chance purely based on trust and faith, and vide letter dated
06-05-2008, conveyed though reluctantly to the Plaintiff once
again his intention to register only his share of land measuring
14 acres, and in the event of failure to get the lands registered
on the aforesaid date, Defendant No.1 informed that the sale
agreement dated 26-10-2007 stands cancelled. It is humbly
submitted that time and again it was made clear that none of
the Defendants were ready to sell their share in the Schedule
Properties. Defendant No.1 had in no way enhanced the sale
price per acre as alleged by the plaintiff, since the agreed sale
price per acre was ₹1,25,00,000/- as per the sale agreement
dated 26-10-2007, and the Plaintiff himself agreed to enhance
the sale price by ₹5,00,000/- which if added to the existing sale
price then the same amounts to ₹1,30,00,000/- per acre. Thus
the Plaintiff has falsely submitted to this Hon'ble Court that
Defendant No.1 stealthily offered to sell his share in the
Schedule properties for an enhanced sale price."
12
Based upon this, the petitioner files the aforesaid application under
Order XII Rule 6 of the CPC. It, therefore becomes necessary to
notice Order XII Rule 6 of the CPC. It reads as follows:
"ORDER XII - ADMISSION:
RULE 6. Judgment on admissions.--(1) Where
admissions of fact have been made either in the
pleading or otherwise, whether orally or in writing, the
Court may at any stage of the suit, either on the
application of any party or of its own motion and
without waiting for the determination of any other
question between the parties, make such order or give
such judgment as it may think fit, having regard to
such admissions.
(2) Whenever a judgment is pronounced under sub-
rule (1) a decree shall be drawn up in accordance with the
judgment and the decree shall bear the date on which the
judgment was pronounced."
(Emphasis supplied)
Order XII Rule 6 of the CPC deals with judgment on
admission. Where admissions of fact have been made in the
pleadings or otherwise, whether orally or in writing, the Court may
at any stage of the suit, either on an application of any party or of
its own motion and without waiting for the determination of any
other question between the parties, make its judgment, having
regard to such admission.
13
JUDICIAL LANDSCAPE:
9 In the light of the partial decree/judgment sought on
admission, it becomes necessary to notice the interpretation of
Order XII Rule 6 of the CPC by the Apex Court.
10. The Apex Court in the case of HARI STEEL AND
GENERAL INDUSTRIES v. DALJIT SINGH1 has held as follows:
".... .... ....
25. In the judgment in Himani Alloys Ltd. v. Tata
Steel Ltd. [Himani Alloys Ltd. v. Tata Steel Ltd., (2011) 15
SCC 273: (2014) 2 SCC (Civ) 376], nature and scope of
Order 12 Rule 6 has been considered by this Court. In the
aforesaid judgment this Court has held that the discretion
conferred under Order 12 Rule 6 CPC is to be exercised
judiciously, keeping in mind that a judgment on
admission is a judgment without trial which permanently
denies any remedy to the defendant. Para 11 of the
judgment read as under: (SCC pp. 276-77)
"11. It is true that a judgment can be given on an
"admission" contained in the minutes of a meeting. But the
admission should be categorical. It should be a conscious
and deliberate act of the party making it, showing an
intention to be bound by it. Order 12 Rule 6 being an
enabling provision, it is neither mandatory nor peremptory
but discretionary. The court, on examination of the facts
and circumstances, has to exercise its judicial discretion,
keeping in mind that a judgment on admission is a
1
(2019) 20 SCC 425
14
judgment without trial which permanently denies any
remedy to the defendant, by way of an appeal on merits.
Therefore unless the admission is clear, unambiguous and
unconditional, the discretion of the court should not be
exercised to deny the valuable right of a defendant to
contest the claim. In short the discretion should be used
only when there is a clear "admission" which can be acted
upon. (See also Uttam Singh Duggal & Co. Ltd. v. United
Bank of India [Uttam Singh Duggal & Co. Ltd. v. United
Bank of India, (2000) 7 SCC 120], Karam Kapahi v. Lal
Chand Public Charitable Trust [Karam Kapahi v. Lal Chand
Public Charitable Trust, (2010) 4 SCC 753: (2010) 2 SCC
(Civ) 262] and Jeevan Diesels & Electricals Ltd. v. Jasbir
Singh Chadha [Jeevan Diesels & Electricals Ltd. v. Jasbir
Singh Chadha, (2010) 6 SCC 601: (2010) 2 SCC (Civ)
745].) There is no such admission in this case."
26. In the judgment in S.M. Asif v. Virender Kumar
Bajaj [S.M. Asif v. Virender Kumar Bajaj, (2015) 9 SCC
287: (2015) 4 SCC (Civ) 589], this Court has held that the
power under Order 12 Rule 6 CPC is discretionary and
cannot be claimed as a right. It is further held in the
aforesaid case that where the defendants have raised
objections, which go to the root of the case, it would not
be appropriate to exercise discretion under Order 12 Rule
6 CPC. Para 8 of the judgment read as under: (SCC p. 291)
"8. The words in Order 12 Rule 6 CPC "may" and
"make such order ..." show that the power under Order 12
Rule 6 CPC is discretionary and cannot be claimed as a
matter of right. Judgment on admission is not a matter of
right and rather is a matter of discretion of the court. Where
the defendants have raised objections which go to the root
of the case, it would not be appropriate to exercise the
discretion under Order 12 Rule 6 CPC. The said rule is an
enabling provision which confers discretion on the court in
delivering a quick judgment on admission and to the extent
of the claim admitted by one of the parties of his opponent's
claim."
27. In the judgment in Balraj Taneja v. Sunil
Madan [Balraj Taneja v. Sunil Madan, (1999) 8 SCC 396] , while
considering the scope of Order 8 Rule 10 and Order 12 Rule 6
CPC, this Court has held that the court is not to act blindly
upon the admission of a fact made by the defendant in
15
the written statement nor should the court proceed to
pass judgment blindly merely because a written
statement has not been filed by the defendant traversing
the facts set out by the plaintiff in the plaint filed in the
court.
28. In the aforesaid judgment, while considering the
scope of Order 12 Rule 6 CPC, post amendment by amending
Act, 1976 this Court has held as under: (Balraj Taneja [Balraj
Taneja v. Sunil Madan, (1999) 8 SCC 396] , SCC p. 408, paras
21-23)
"21. There is yet another provision under which it is
possible for the court to pronounce judgment on admission.
This is contained in Rule 6 of Order 12 which provides as
under:
'6. Judgment on admissions.--(1) Where
admissions of fact have been made either in the pleading or
otherwise, whether orally or in writing, the court may at any
stage of the suit, either on the application of any party or of
its own motion and without waiting for the determination of
any other question between the parties, make such order or
give such judgment as it may think fit, having regard to
such admissions.
(2) Whenever a judgment is pronounced under sub-
rule (1) a decree shall be drawn up in accordance with the
judgment and the decree shall bear the date on which the
judgment was pronounced.'
22. This rule was substituted in place of the old rule
by the Code of Civil Procedure (Amendment) Act, 1976. The
Objects and Reasons for this amendment are given below:
'Under Rule 6, where a claim is admitted, the court
has jurisdiction to enter a judgment for the plaintiff and to
pass a decree on the admitted claim. The object of the rule
is to enable a party to obtain a speedy judgment at least to
the extent of the relief to which, according to the admission
of the defendant, the plaintiff is entitled. The rule is wide
enough to cover oral admissions. The rule is being amended
to clarify that oral admissions are also covered by the rule.'
23. Under this rule, the court can, at an interlocutory
stage of the proceedings, pass a judgment on the basis of
16
admissions made by the defendant. But before the court
can act upon the admission, it has to be shown that the
admission is unequivocal, clear and positive. This rule
empowers the court to pass judgment and decree in respect
of admitted claims pending adjudication of the disputed
claims in the suit."
29. By applying the ratio laid down by this Court in the
aforesaid judgments, it is to be held that there are no
categorical and unconditional admissions, as claimed by the
respondent-plaintiffs. In view of the stand of the appellants that,
pp. 3 and 4 of the agreement dated 3-5-2005 are tampered and
their signatures are fabricated, when specific issue is already
framed, it cannot be said that there are categorical and
unconditional admissions by the appellants. Mere admission of
entering into arrangement/contract on 7-4-2005 and 3-5-2005
itself cannot be considered in isolation, without considering the
further objections of the appellants that certain pages in the
agreement are fabricated. In case the appellants prove that the
agreement is fabricated as claimed, post-trial it goes to the root
of the case on the claim of the respondent-plaintiffs. Hence, we
are of the view that the aforesaid judgments fully support the
case of the appellants.
30. The learned counsel for the respondent-
plaintiffs Shri Shyam Divan, relying on the judgment of
this Court in Uttam Singh Duggal & Co. Ltd. v. United
Bank of India [Uttam Singh Duggal & Co. Ltd. v. United
Bank of India, (2000) 7 SCC 120] has submitted that in
view of the balance sheets and resolutions of the
company, they are to be considered as admissions
otherwise it will amount to narrowing down the scope of
the Rule itself. In the aforesaid judgment itself, this Court
has held that when a statement of admission is brought
before the Court, as long as the party making the
statement is given sufficient opportunity to explain such
admissions, judgment on admission can be delivered. In
the case on hand it is to be noted that the relief claimed
under Order 12 Rule 6 CPC by filing a written application
claiming admission only based on the statement made by
the advocate in the bail application, and there is no other
pleaded admission, in the application filed by the
respondent-plaintiffs. It is a trite principle that any
17
amount of evidence is of no help, in absence of pleading
and foundation in the application. It is true that when
categorical and unconditional admissions are there,
judgment on admission can be ordered, without
narrowing down the rule but at the same time the
judicious discretion conferred on the court is to be
exercised within the framework of the rule but not
beyond. Even on balance sheets of the company and the
note of one of the Directors, it is the specific case of the
appellants that the third respondent, in connivance with
the respondent-plaintiffs, is also working against the
appellants. In that view of the matter the claim of the
respondent-plaintiffs relying on the documents relating
to company is to be considered with reference to the
defence of the appellants during trial in the suit.
31. In the judgment in Karam Kapahi v. Lal Chand
Public Charitable Trust [Karam Kapahi v. Lal Chand Public
Charitable Trust, (2010) 4 SCC 753 : (2010) 2 SCC (Civ)
262], this Court has interpreted the expression
"otherwise" as used in Order 12 Rule 6 CPC and has held
that the scope of the said provision of Order 12 Rule 6 is
wider in comparison to provision of Order 12 Rule 1 CPC.
It is true that after amendment, scope of the rule under
Order 12 Rule 6 is expanded but at the same time the
expression "otherwise" inserted in Order 12 Rule 6 is also
to be considered within the framework of the Rule but
not beyond. In any event, even in a given case, the
admissions are categorical and unconditional, whether
any inference can be drawn on admissions having regard
to documents placed on record, is a matter to be
considered having regard to facts of each case. There
cannot be any straitjacket formula to extend the benefit
of Order 12 Rule 6 CPC."
(Emphasis supplied)
The Apex Court holds that a judgment on admission is a judgment
without trial, which permanently denies a remedy to the defendant
18
and, therefore, the power under Order XII Rule 6 CPC must be
exercised with caution. It is, therefore, a judgment on admission
cannot be claimed as a matter of right.
11. Later, the Apex Court in the case of KARAN KAPOOR v.
MADHURI KUMAR2 has held as follows:
".... .... ....
23. Order 12 Rule 6 confers discretionary power to
a court who "may" at any stage of the suit or suits on the
application of any party or in its own motion and without
waiting for determination of any other question between
the parties makes such order or gives such judgment as it
may think fit having regard to such admission.
24. Thus, legislative intent is clear by using the word
"may" and "as it may think fit" to the nature of admission. The
said power is discretionary which should be only exercised when
specific, clear and categorical admission of facts and documents
are on record, otherwise the court can refuse to invoke the
power of Order 12 Rule 6. The said provision has been brought
with intent that if admission of facts raised by one side is
admitted by the other, and the court is satisfied to the nature of
admission, then the parties are not compelled for full-fledged
trial and the judgment and order can be directed without taking
any evidence. Therefore, to save the time and money of the
court and respective parties, the said provision has been
brought in the statute. As per above discussion, it is clear that
to pass a judgment on admission, the court if thinks fit may
pass an order at any stage of the suit. In case the judgment is
pronounced by the court a decree be drawn accordingly and
parties to the case is not required to go for trial.
2
(2022) 10 SCC 496
19
25. Some special provisions have been made in Rules 7,
8 and 9 regarding affidavit of signature, notice to produce
documents and also to the cost which may not have much
relevance to the facts of the present case hence, not being
discussed elaborately in this judgment.
26. On the issue of discretion of Court to pass judgment
on admission, a three-Judge Bench of this Court in S.M.
Asif v. Virender Kumar Bajaj [S.M. Asif v. Virender Kumar Bajaj,
(2015) 9 SCC 287 : (2015) 4 SCC (Civ) 589] made the
legislative intent clear to use the word "may" which clearly
stipulates that the power under Order 12 Rule 6CPC is
discretionary and cannot be claimed as a matter of right. In the
said case, the suit for eviction was filed by the respondent
landlord against the appellant tenant. The relationship of
tenancy was admitted including the period of lease agreement.
The plaintiffs' claim was resisted by the defendant setting up a
plea that the property in question was agreed to be sold by an
agreement and the advance of Rs 82,50,000 was paid.
... ... ...
34. In our view, for the purpose of Order 12 Rule 6,
the said admission is not clear and categorical, so as to
exercise a discretion by the court without dealing with
the defence as taken by defendant. As we are conscious
that any observation made by this Court may affect the
merit of either side, therefore, we are not recording any
finding either on the issue of tenancy or with respect to
the defence as taken by the defendant. We are only
inclined to say whether the judgment and decree passed
in exercise of the power under Order 12 Rule 6CPC is
based on clear and categorical admission. In our view,
the facts of the case in hand and the judgment in S.M.
Asif [S.M. Asif v. Virender Kumar Bajaj, (2015) 9 SCC 287
: (2015) 4 SCC (Civ) 589] are altogether similar,
therefore, the ratio of the said judgment rightly applies to
the present case."
(Emphasis supplied)
The Apex Court emphasizes that the discretion under Order XII Rule
6 CPC must be exercised with meticulous caution. The Rule does
20
not confer a right, but merely enables a Court to deliver expeditious
justice where no factual dispute subsists.
12. The Apex Court in the case of RAJESH MITRA v.
KARNANI PROPERTIES LIMITED3 has held as follows:
".... .... ....
3. At the outset, we must state that both, the
learned single-judge bench and to some extent even the
Division Bench of the High Court, in the present case,
ought not to have decreed the suit of the landlord on the
basis of alleged "admission" by the appellant no. 1 which
was made in another unconnected matter, as to our mind,
it does not pass muster the test of "admission" visualised
in Order XII Rule 6 CPC. It is not that a court cannot pass
a judgment on the basis of an admission made in some
other case. All the same, what has to be kept in mind is
that Order XII Rule 6 is an enabling provision conferring
wide discretionary powers on the courts which cannot be
claimed by any party as a matter of right. Courts can
invoke Order XII Rule 6 only in cases where admissions
are unconditional, unequivocal and unambiguous or when
admission is based upon undisputed inferences.
(See: Charanjit Lal Mehra v. Kamal Saroj Mahajan (Smt) (2005)
11 SCC 279, Raveesh Chand Jain v. Raj Rani Jain (2015) 8 SCC
428, Uttam Singh Duggal & Co. Ltd. v. United Bank of
India (2000) 7 SCC 120)
Here, we would like to reproduce that portion of the
cross-examination of appellant no. 1, as quoted by the Single
Judge of the High Court, which is alleged to be an admission on
part of the appellant no. 1 to deny him the right of occupying
the disputed premises. It is as follows:
3
2024 SCC OnLine SC 2607
21
"33. Flat No. 208 in respect whereof you are an
occupant- is it a tenancy?
Yes, it is in my mother's name.
34. Your mother is Usha Mitra- am I right? Yes, Late
Usha Mitra.
35. When did Usha Mitra expire?
On 3rd November, 2009"
This deposition is the so called 'admission' on which the
respondent-landlord relies to claim that only the mother (Usha
Mitra) of the appellants was the tenant and not the appellants.
The appellant no. 1 had admitted that the tenancy was in the
name of his mother.
We have perused the examination-in-chief and cross-
examination of appellant no. 1 made in that 'other case' where
this statement was made. Such questions and their answers are
common place in depositions before courts, but every such
statement cannot be considered as an 'admission' to invoke
Order XII Rule 6 of CPC. It is for the courts to see whether any
statement in the pleadings or otherwise amounts to an
admission of such a nature as to inspire the confidence of the
court to pass judgment on admission under Order XII Rule
6 of CPC. It will depend upon the content and kind of
statement/admission which may vary from case to case. In
other words, it would depend upon the totality of facts and
circumstances of a particular given case. In the present case,
here, it is not a 'clear admission' as is being made out.
Moreover, where the question and its answer are both a mixed
question of fact and law, as in the present case, a so called
'admission' against the law can never be an "admission" as
visualised under Order XII Rule 6. However, more on this later.
Order XII Rule 6 is meant for speedy disposal of the suits
in some cases but on the risk of repetition, we would like to
caution that unless there is a clear, unambiguous, unequivocal
and unconditional admission, courts should not exercise their
discretion under the Rule because judgment on admissions is
without a trial which may even preclude a party to challenge the
matter on merits in the court of appeal. The provision of law,
22
which is meant for the expeditious disposal of appropriate cases,
should therefore be cautiously exercised and it should never
come in the way of any defendant denying him the valuable
right of contesting the claim. (See : Himani Alloys Ltd. v. Tata
Steel Ltd. (2011) 15 SCC 273, Hari Steel & General Industries
Ltd. v. Diljit Singh (2019) 20 SCC 425)
... ... ...
6. The Single Judge of the High Court, however, did not
accept this contention. What was relied upon were the rent
receipts in the name of Smt. Usha Mitra (the mother of the
present appellant), for the period between 1970 and 2009 and
an affidavit attested by Smt. Usha Mitra, showing that she was
the sole tenant of the premises while dismissing the claim of the
defendants.
Undisputedly, Smt. Usha Mitra had become a tenant
under section 2(h) of the 1956 Act. However, when these facts
were considered along with the deposition of appellant no. 1, it
was held by the Single Judge of the High Court that after the
death of Smt. Usha Mitra in 2009, the appellants would be
tenants under section 2(g) of the 1997 Act only for a period of
five years which would be calculated from the date of Usha
Mitra's death due to the words "whichever is later" appearing in
section 2(g). Five years got completed on 02.11.2014, after
which the appellants had no right to remain on the premises. As
we have already stated above, the learned Single Judge was not
correct in decreeing the suit on this so called "admission".
Looking at the facts of the case and the position of law, it was
not proper for the Court to give a judgment on admission simply
because there cannot be an admission against law and in any
case, it is not an unambiguous admission as is being made out.
In view of the discussion above, the legal question to be
determined by us is whether the appellants had also became
tenants upon the death of their father, by virtue of section 2(h)
of the old Act. Further, what effect would the enforcement of the
new Act have on their tenancy.
This goes to the root of the controversy and
involves a question of law and thus, the learned single
Judge erred in passing the judgment under Order XII
Rule 6. What has been given to the appellants under law
23
cannot be taken away on the basis of an unclear
deposition. In short, there cannot be an admission
against law. Whether a particular statement amounts to
an "admission" will depend on the fact of each case. In
the case at hand, we are of the opinion that it is not an
admission as visualised under Order XII Rule 6."
(Emphasis supplied)
The Apex Court reiterates that a suit cannot be decreed based on
conditional admission or any admission made in collateral
proceedings.
13. The Apex Court, yet again, in the case of RAJIV GHOSH
v. SATYA NARYAN JAISWAL4 has held as follows:
".... .... ....
OBJECT OF AMENDMENTS
21. Rule 6, as originally enacted, enabled a court to
pronounce judgment or admission "either in pleading or
otherwise". It read thus:
"6. Judgment on admissions.-- Any party may, at
any stage of a suit. where admissions of facts have been
made, either on pleadings or otherwise, apply to the Court
for such judgment or order as upon such admissions he
may be entitled to, without waiting for the determination of
any other question between the parties and the Court may
upon such application make such order or give such
judgment, as the Court may think just."
22. The Law Commission considered the provision. With a
view to clarify the position as to admission and also to empower
the court to pronounce a judgment: suomotu and to draw a
4
2025 SCC OnLine SC 751
24
decree on such judgment, recommended to modify the rule. It
stated:
"Where a claim is admitted, a court has jurisdiction
under Order XII Rule 6 to enter a judgment for the plaintiff,
and to pass a decree on the admitted claim (with liberty to
the plaintiff to proceed with the suit in the ordinary way as
to the remainder of the claim).
The object of the rule is to enable a party to obtain
speedy judgment, at least to the extent of the relief to
which, according to the admission of the defendant, the
plaintiff is entitled.
The rule has been held to be wide enough to cover
oral admissions. The use of the words 'or otherwise' in Rule
6, without the words 'in writing' which are used in Rule 1 of
Order XII, shows that a judgment may be given even on an
oral admission. It is desirable to codify this interpretation.
It may be noted that under the present rule, a
judgment on admission can be passed only on an
application. According to a local amendment. the Court
may, on the application of any party or of its own motion,
make such order or give such judgment. This is a useful
amendment, and should be adopted.
In our view, it is also desirable to provide that a
decree shall follow or judgment on admissions." (See: Law
Commission's Fifty-fourth Report, p. 145)
23. In Statement of Objects and Reasons, it had been
stated:
"Clause 65, sub-clause (ii)- Under Rule 6, where a
claim is admitted, the Court has jurisdiction to enter a
judgment for the plaintiff and to pass a decree on the
admitted claim. The object of the rule is to enable a party to
obtain speedy judgment at least to the extent of relief to
which, according to the admission of the defendant, the
plaintiff is entitled. The rule is wide enough to cover oral
admissions. The rule is being amended to clarify that oral
admissions are also covered by the rule" (See : Notes on
Clauses, Gazette of India, dt. 08-04-1974, Pt. II, S. 2,
Extra., p. 316)
25
24. Rule 6(1) empowers the court to pronounce a
judgment upon admissions made by parties without waiting for
the determination of other questions.
25. Rule 6(2) states that a decree shall be drawn up in
accordance with the judgment.
26. The primary object underlying Rule 6 is to enable a
party to obtain speedy judgment at least to the extent of
admission. Where a plaintiff claims a particular relief or reliefs
against a defendant and the defendant makes a plain admission,
the former is entitled to the relief or reliefs admitted by the
latter. [See : Uttam Singh v. United Bank of India, (2000) 7
SCC 120]
27. As observed in the Statement of Objects and Reasons
for amending Rule 6, "where a claim is admitted, the court has
jurisdiction to enter a judgment for the plaintiff and to pass a
decree on admitted claim. The object of the Rule is to enable
the party to obtain a speedy judgment at least to the extent of
the relief to which according to the admission of the defendant,
the plaintiff is entitled."
28. The provisions of Rule 6 are enabling, discretionary
and permissive. They are not mandatory, obligatory or
peremptory. This is also clear from the use of the word "may" in
the rule.
29. The powers conferred on the court by this rule are
untrammeled and cannot be crystallized into any rigid rule of
universal application. They can be exercised keeping in view and
having regard to the facts and varying circumstances of each
case.
30. If the court is of the opinion that it is not safe to pass
a judgment on admissions, or that a case involves questions
which cannot be appropriately dealt with and decided on the
basis of admission, it may, in exercise of its discretion, refuse to
pass a judgment and may insist upon clear proof of even
admitted facts.
31. To make order or to pronounce judgment on
admission is at the discretion of the court. First, the word
26
"may" is used in Rule 6 and not the word "shall" which
prima facie shows that the provision is an enabling one.
Rule 6 of Order 12 must be read with Rule 5 of Order 8
which is identical to the Proviso to Section 58 of the
Evidence Act. Reading all the relevant provisions
together, it is manifest that the court is not bound to
grant relief to the plaintiff only on the basis of admission
of the defendant. (See : Sher Bahadur v. Mohd. Amin, AIR
1929 Lah 569)
32. In the leading decision of Throp v. Holdsworth,
Jessel, [L.R.] 3 Ch. 637 (640) M.R. said:"This rule enables the
plaintiff or the defendant to get rid of so much of the action, as
to which there is no controversy."
33. In Uttam Singh (Supra) the plaintiff bank filed a suit
for recovery of a large sum of money against the defendant. It
also filed an application under Order 12, Rule 6 for judgment
upon admission in respect of part of claim. The application was
allowed and a decree was passed. An appeal against the decree
was also dismissed by the High Court. The defendant
approached this Court. It was contended before this Court by
the defendant that (i) Rule 6 of Order 12 covers only those
admissions made in pleadings; (ii) the effect of the admissions
can only be considered at the trial of the suit; and (iii) the
provision of Order 12, Rule 6 must be read along with the
provisions of Order 8 and the court should call upon the plaintiff
to prove its case independent of so called admissions.
34. Negativing the contentions and referring to the object
of Order 12, Rule 6, the Court observed that "where a claim is
admitted, the court has jurisdiction to enter a judgment for the
plaintiff and to pass a decree on admitted claim. The scope of
Rule 6 should not be narrowed down where a party applying for
judgment is entitled to succeed on a plain admission of the
opposite party. The admission by the defendant was clear,
unambiguous, unequivocal and unconditional. The courts below
were, therefore, right in decreeing the suit of the plaintiff."
35. The words "or otherwise" are wide enough to include
all cases of admissions made in the pleadings or de hors the
pleadings. Under Rule 6, as originally enacted, it was held that
the words "or otherwise" without the words "in writing" used in
27
Rule 1 showed that a judgment could be given upon oral or
verbal admission also. [See :Beeny, re, (1894) 1 Ch D 499] The
Amendment Act of 1976, however, made the position clear
stating that such admissions may be "in the pleading or
otherwise" and "whether orally or in writing". Thus, after the
amendment in Rule 6, the admissions are not confined to Rule 1
or Rule 4 of Order 6, but are of general application. Such
admissions may be express or implied (constructive); may be in
writing or oral; or may be before the institution of the suit, after
the suit is brought or during the pendency of proceedings.
36. A Division Bench of the Delhi High Court very
correctly laid down the following interpretation of the provision
of O. 12, R. 6, CPC, in the decision of ITDC Limited v. Chander
Pal Sood and Son, (2000) 84 DLT 337 (DB) : (2000 AIHC
1990):
"Order 12, R. 6 of Code gives a very wide discretion
to the Court. Under this rule the Court may at any stage of
the suit either on the application of any party or of its own
motion and without determination of any other question
between the parties can make such order giving such
judgment as it may think fit on the basis of admission of a
fact made in the pleadings or otherwise whether orally or in
writing."
37. The use of the expression 'otherwise' in the
aforesaid context came to be interpreted by the High
Court. Considering the expression the Court interpreted
the said word by stating that it permits the Court to pass
judgment on the basis of the statement made by the
parties not only on the pleadings but also dehors the
pleadings i.e. either in any document or even in the
statement recorded in the Court. If one of the parties'
statement is recorded under O. 10, Rr. 1 and 2 of
the Code of Civil Procedure, the same is also a statement
which elucidates matters in controversy. Any admission
in such statement is relevant not only for the purpose of
finding out the real dispute between the parties but also
to ascertain as to whether or not any dispute or
controversy exists between the parties. Admission if any
is made by a party in the statement recorded, would be
28
conclusive against him and the Court can proceed to pass
judgment on the basis of the admission made therein.
38. Rule 6 of Order XII, before the amendment,
allowed judgment on admission only on an application by
a party. The Law Commission, however, suggested that a
judgment may be pronounced either on an application by
a party or even suomotu [See : Throp (supra)]
39. This rule authorizes the court to enter a
judgment where a claim is admitted and to pass a decree
on such admitted claim. This can be done at any stage.
[See : Uttam Singh (supra)]. Thus, a plaintiff may move
for judgment upon admission by the defendant in his
written statement at any stage of the suit although he
has joined issue on the defence." [See
: Brown v. Pearson, [L.R.] 21 Ch. 716]. Likewise, a
defendant may apply for dismissal of the suit on the basis
of admission by the plaintiff in rejoinder.
40. The court may, in an appropriate case, give a
judgment at an interlocutory stage of the proceedings on
admission by a party. [See : Balraj Taneja v. Sunil
Madan, (1999) 8 SCC 396]. But if the case involves
questions which cannot conveniently be disposed of at a
motion stage, the court may not give judgment at that
stage. [See : Simla Wholesale Mart (Supra)]
41. Sub-rule (2) of Rule 6 as inserted by the Code of
Civil Procedure (Amendment) Act, 1976 requires the
court to draw up a decree in accordance with the
judgment on admission. Sub-rule (2) is thus
consequential and logical sequence to sub-rule (1).
42. Since the object of sub-rule (1) is to enable the
plaintiff to get judgment on admission of the defendant to
the extent of such admission, he must get the benefit
thereof immediately without waiting for the
determination of "non-admitted claim". Sub-rule (2)
makes it imperative for the court to draw up a decree in
terms of judgment on admission which can be executed
by the plaintiff." [See : Uttam Singh (supra)]. In such
cases, there may be two decrees; (i) in respect of
29
admitted claim; and (ii) in respect of "non-admitted" or
contested claim. [See : Bai Chanchal v. United Bank of
India, (1970) 3 SCC 124 : AIR 1971 SC 1081].
43. A decree under Rule 6 may be either preliminary or
final. [See : Sivalinga v. Narayani, AIR 1946 Mad 151]
44. We are of the view having regard to the clear
and unequivocal admission made by the defendant in his
written statement, the High Court committed no error
much less any error of law in decreeing the suit applying
Order XII Rule 6 of the CPC."
(Emphasis supplied)
The Apex Court now holds that Order XII Rule 6 CPC is enabling,
discretionary and permissive. Therefore, the judgment can be
passed as per pleadings based on admission, which is not in
controversy between the parties.
14. On a blend of the aforesaid judgments of the Apex Court
what would unmistakably emerge is, that a judgment can be passed
under Order XII Rule 6 CPC only in a case where the admission is
unambiguous and unconditional. Therefore, the admission should
be unequivocal and power must be used sparingly, as it is a decree
where the defence of the defendant is washed off. On the
elucidation of law by the Apex Court if the facts as narrated
30
hereinabove are noticed, there is no unequivocal admission on the
part of defendant No.1. The controversy revolves round whether it
is ₹50/- lakhs per acre or ₹1.25 crores per acre, as the legal notice
increases the value by ₹5/- lakhs per acre. Whether it is ₹50/-
lakhs agreement or ₹1.25 crore agreement is still in controversy.
Therefore, there is no unequivocal admission by defendant No.1
with regard to the price. It may be that he has admitted 40% share
of the property being his. But, that would not mean that there is an
admission on sale consideration. The dispute, as afore-noted, is
central to the suit and cannot be glossed over. The
admission, therefore, fails to meet the benchmark of clarity
required to warrant a judgment on admission under Order
XII Rule 6 of the CPC, as the dispute strikes at the heart of
the contract sought to be specifically enforced.
SPECIFIC RELIEF ACT:
15. As observed hereinabove, the suit is for specific
performance. In a suit for specific performance, readiness and
willingness of parties is imperative. Section 16 of the Specific Relief
Act, pre-amendment, reads as follows:
31
"16. Personal bars to relief.--Specific performance of a
contract cannot be enforced in favour of a person--
(a) who would not be entitled to recover
compensation for its breach; 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
(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 of 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 must aver performance of, or readiness
and willingness to perform, the contract according
to its true construction."
(Emphasis supplied)
Specific performance of a contract cannot be enforced in favour of a
person 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. The explanation to Section 16 clearly indicates that there
32
must be an averment of readiness or willingness to perform.
Whether the acts of the plaintiff have been in consonance with
Section 16 of the Specific Relief Act is necessary to be noticed.
16. The sale transaction i.e., agreement is of the year 2007.
If it is prior to amendment, the plaintiff will have to satisfy twin
conditions under Section 16(c) of the Specific Relief Act, which
would be to prove readiness and willingness to perform the
contract. It becomes apposite to refer to the judgment of the Apex
Court in the case of PYDI RAMANA v. DAVARASETY
MANMADHA RAO5, wherein it is held as follows:
".... .... ....
Readiness and willingness not proved
13. In order to obtain a decree for specific
performance, the plaintiff must aver and prove that he
has performed his part of the contract and has always
been ready and willing to perform the terms of the
contract which are to be performed by him. Section 16(c)
of the Specific Relief Act mandates "readiness and
willingness" of the plaintiff to be averred and proved and
it is a condition precedent to obtain the relief of specific
performance."
(Emphasis supplied)
5
(2024) 7 SCC 515
33
The Apex Court holds the twin conditions must be satisfied by the
plaintiff if he is wanting a decree of specific performance.
17. The Apex Court, further amplifying the concept of
readiness and willingness, in the case of SANGITA SINHA v.
BHAWANA BHARDWAJ6 holds as follows:
".... .... ....
16. It is settled law that under the Act, 1963, prior to the
2018 Amendment, specific performance was a discretionary and
equitable relief. In Kamal Kumar v. Premlata Joshi, (2019) 3
SCC 704, which has been followed in P. Daivasigamani v. S.
Sambandan, (2022) 14 SCC 793, this Court framed material
questions which require consideration prior to grant of relief of
specific performance. The relevant portion of the judgment
in Kamal Kumar (supra) is reproduced hereinbelow:
"7. It is a settled principle of law that the grant of
relief of specific performance is a discretionary and
equitable relief. The material questions, which are required
to be gone into for grant of the relief of specific
performance, are:
7.1. First, whether there exists a valid and concluded
contract between the parties for sale/purchase of the suit
property.
7.2. Second, whether the plaintiff has been ready
and willing to perform his part of contract and whether he is
still ready and willing to perform his part as mentioned in
the contract.
7.3. Third, whether the plaintiff has, in fact,
performed his part of the contract and, if so, how and to
6
2025 SCC OnLine SC 723
34
what extent and in what manner he has performed and
whether such performance was in conformity with the terms
of the contract;
7.4. Fourth, whether it will be equitable to grant the
relief of specific performance to the plaintiff against the
defendant in relation to suit property or it will cause any
kind of hardship to the defendant and, if so, how and in
what manner and the extent if such relief is eventually
granted to the plaintiff;
7.5. Lastly, whether the plaintiff is entitled for grant
of any other alternative relief, namely, refund of earnest
money, etc. and, if so, on what grounds.
8. In our opinion, the aforementioned questions are
part of the statutory requirements [See
Sections 16(c), 20, 21, 22, 23 of the Specific Relief Act,
1963 and Forms 47/48 of Appendices A to C of the Code of
Civil Procedure]. These requirements have to be properly
pleaded by the parties in their respective pleadings and
proved with the aid of evidence in accordance with law. It is
only then the Court is entitled to exercise its discretion and
accordingly grant or refuse the relief of specific performance
depending upon the case made out by the parties on facts."
17. It is trite law that 'readiness' and 'willingness'
are not one but two separate elements. 'Readiness'
means the capacity of the Respondent No. 1-buyer to
perform the contract, which would include the financial
position to pay the sale consideration. 'Willingness' refers
to the intention of the Respondent No. 1-buyer as a
purchaser to perform his part of the contract, which is
inferred by scrutinising the conduct of the Respondent
No. 1-buyer/purchaser, including attending
circumstances.
18. Continuous readiness and willingness on the part of
the Respondent No. 1-buyer/purchaser from the date of
execution of Agreement to Sell till the date of the decree, is a
condition precedent for grant of relief of specific performance.
This Court in various judicial pronouncements has held that it is
not enough to show the readiness and willingness up to the date
of the plaint as the conduct must be such as to disclose
readiness and willingness at all times from the date of the
35
contract and throughout the pendency of the suit up to the
decree. A few of the said judgments are reproduced
hereinbelow:--
A. In Gomathinayagam Pillai v. Palaniswami Nadar, (1967) 1
SCR 227, it has been held as under:--
"6. But the respondent has claimed a decree for
specific performance and it is for him to establish that he
was, since the date of the contract, continuously ready and
willing to perform his part of the contract. If he fails to do
so, his claim for specific performance must fail. As observed
by the Judicial Committee of the Privy Council in Ardeshir
Mama v. Flora Sassoon, 1928 SCC OnLine PC 43:
"In a suit for specific performance, on the other
hand, he treated and was required by the Court to treat the
contract as still subsisting. He had in that suit to allege, and
if the fact was traversed, he was required to prove a
continuous readiness and willingness, from the date of the
contract to the time of the hearing, to perform the contract
on his part. Failure to make good that averment brought
with it the inevitable dismissal of his suit."
The respondent must in a suit for specific
performance of an agreement plead and prove that he
was ready and willing to perform his part of the
contract continuously between the date of the
contract and the date of hearing of the suit...."
(emphasis supplied)
B. In Vijay Kumar v. Om Parkash, 2018 SCC OnLine SC 1913, it
has been held as under:--
"6. In order to obtain a decree for specific
performance, the plaintiff has to prove his readiness
and willingness to perform his part of the contract
and the readiness and willingness has to be shown
throughout and has to be established by the
plaintiff...."
(emphasis supplied)
C. In J.P. Builders v. A. Ramadas Rao, (2011) 1 SCC 429, it has
been held as under:--
36
"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."
(emphasis supplied)
D. In Umabai v. NilkanthDhondiba Chavan (Dead) By LRs., (2005)
6 SCC 243, it has been held as under:--
"30. It is now well settled that the conduct of the
parties, with a view to arrive at a finding as to whether the
plaintiff-respondents were all along and still are ready and
willing to perform their part of contract as is mandatorily
required under Section 16 (c) of the Specific Relief Act must
be determined having regard to the entire attending
circumstances. A bare averment in the plaint or a
statement made in the examination-in- chief would
not suffice. The conduct of the plaintiff- respondents
must be judged having regard to the entirety of the
pleadings as also the evidence brought on records."
(emphasis supplied)
E. In Mehboob-Ur-Rehman (Dead) through Legal
Representatives v. Ahsanul Ghani (supra), it has been held as
under:--
"16. Such a requirement, of necessary averment in
the plaint, that he has already performed or has always
been ready and willing to perform the essential terms of the
contract which are to be performed by him being on the
plaintiff, mere want of objection by the defendant in the
written statement is hardly of any effect or
consequence. The essential question to be addressed
to by the Court in such a matter has always been as
to whether, by taking the pleading and the evidence
on record as a whole, the plaintiff has established
that he has performed his part of the contract or has
always been ready and willing to do so..."
37
(emphasis supplied)
F. In C.S. Venkatesh v. A.S.C. Murthy (Dead) by Legal
Representatives (supra), it has been held as under:--
"16. The words "ready and willing" imply that the
plaintiff was prepared to carry out those parts of the
contract to their logical end so far as they depend upon his
performance. The continuous readiness and willingness on
the part of the plaintiff is a condition precedent to grant the
relief of performance. 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 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 which he
has to pay the defendant must be of necessity to be proved
to be available. Right from the date of the execution of
the contract till the date of decree, he must prove
that he is ready and willing to perform his part of the
contract. The court may infer from the facts and
circumstances whether the plaintiff was ready and
was always ready to perform his contract.
17. In N.P. Thirugnanam v. R. Jagan Mohan Rao
[N.P. Thirugnanam v. R. Jagan Mohan Rao, (1995) 5 SCC
115], it was held that continuous readiness and willingness
on the part of the plaintiff is a condition precedent to grant
of 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 to 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 necessarily be proved to be available.
18. In Pushparani S. Sundaram v. Pauline Manomani
James [Pushparani S. Sundaram v. Pauline Manomani
James, (2002) 9 SCC 582], this Court has held that
inference of readiness and willingness could be drawn from
the conduct of the plaintiff and the totality of circumstances
in a particular case. It was held thus : (SCC p. 584, para 5)
38
"5. ... So far these being a plea that they were ready
and willing to perform their part of the contract is there in
the pleading, we have no hesitation to conclude, that this by
itself is not sufficient to hold that the appellants were ready
and willing in terms of Section 16(c) of the Specific Relief
Act. This requires not only such plea but also proof of the
same. Now examining the first of the two circumstances,
how could mere filing of this suit, after exemption was
granted be a circumstance about willingness or readiness of
the plaintiff. This at the most could be the desire of the
plaintiff to have this property. It may be for such a desire
this suit was filed raising such a plea. But Section 16(c) of
the said Act makes it clear that mere plea is not sufficient, it
has to be proved."
(emphasis supplied)
19. Consequently, the readiness and willingness of the
buyer to go ahead with the sale of the property at the time of
the institution of the suit loses its relevance, if the Respondent
No. 1-buyer is unable to establish that the readiness and
willingness has continued throughout the pendency of the suit.
20. After examination of the pleadings and evidence
in the present suit as well as the conduct of the
Respondent No. 1-buyer, this Court is unable to agree
with Respondent No. 1-buyer that she was willing to
perform the Agreement to Sell dated 25th January, 2008
and go ahead with the purchase of the property. This
Court says so because admittedly, as noted above, the
five demand drafts dated 7th February 2008 for Rs.
2,11,000/- (Rupees Two Lakh Eleven Thousand) were
encashed by the Respondent No. 1-buyer in July, 2008.
The conduct of the Respondent No. 1-buyer in encashing
the demand drafts establishes beyond doubt that the
Respondent No. 1-buyer was not willing to perform her
part of the Agreement to Sell and proceed with execution
of the sale deed; for the Respondent No. 1-buyer would
not have encashed the demand drafts if she was indeed
willing to perform the contract and have a sale deed
executed. Consequently, once it is established that the
Respondent No. 1-buyer is not willing to perform the
contract, the fact that the entire advance
39
consideration/earnest money had not been returned to
Respondent No. 1-buyer is irrelevant and immaterial."
(Emphasis supplied)
18. Again, the Apex Court in the case of R. KANDASAMY V.
T.R.K. SARAWATHY7 has held as follows:
".... .... ....
21. Requisite pleadings and proof that are required of a
plaintiff to succeed in a suit for specific performance are
succinctly captured in this Court's decision of recent origin
in U.N. Krishnamurthy v. A.M. Krishnamurthy [U.N.
Krishnamurthy v. A.M. Krishnamurthy, (2023) 11 SCC 775:
(2024) 3 SCC (Civ) 570]. The relevant passage reads: (SCC p.
783, para 24)
"24. To aver and prove readiness and
willingness to perform an obligation to pay money, in
terms of a contract, the plaintiff would have to make
specific statements in the plaint and adduce evidence
to show availability of funds to make payment in
terms of the contract in time. In other words, the
plaintiff would have to plead that the plaintiff had
sufficient funds or was in a position to raise funds in
time to discharge his obligation under the contract. If
the plaintiff does not have sufficient funds with him
to discharge his obligations in terms of a contract,
which requires payment of money, the plaintiff would
have to specifically plead how the funds would be
available to him. To cite an example, the plaintiff may
aver and prove, by adducing evidence, an
arrangement with a financier for disbursement of
adequate funds for timely compliance with the terms
and conditions of a contract involving payment of
money."
(Emphasis supplied)
7
(2025) 3 SCC 513
40
Both the judgments of the Apex Court separately define what is
readiness and willingness. The Apex Court holds that readiness
and willingness is not a static concept which would get
arrested on the date of institution of the suit. Readiness and
willingness is a continuing process. The Apex Court
underscores that such readiness and willingness must not
only be averred, but demonstrated, continuously, from the
date of agreement till the date of decree.
19. Alas, in the instant case, the plaintiff having
commenced litigation in the year 2008, has neither adduced
evidence nor exhibited requisite alacrity to proceed with the
matter, thereby, failing to satisfy the statutory imperative
under Section 16(c) of the Act. The pursuit of partial decree,
absent of unequivocal admission and bereft of any
semblance of sustained readiness and willingness is but, a
legal mirage, a claim incapable of surviving judicial scrutiny.
Such a plea, if entertained would undermine the settled
principles of law.
41
20. In the case at hand the suit was instituted in the year
2008 and is languishing for over 17 years. There is no
convincing material to show that the plaintiff was at any
stage, prepared to perform his contractual obligations, much
less, continuously so. The application for a partial decree
appears to be a strategic detour, rather than a genuine
assertion of contractual rights. The long silence and
procedural delays do not inspire confidence in the
petitioner's bonafides. While partial decree under Order XII
Rule 6 of the CPC is permissible, it is to be on undisputed
facts and unequivocal admission by the defendant which is
conspicuously absent in the case at hand. The plaintiff, no
where in the suit, has led his evidence or taken a step to
demonstrate readiness and willingness to perform his part of the
contract. In that light, the petitioner cannot demand a partial
decree to be drawn in his favour.
21. For the foregoing reasons and in deference to the settled
legal position and the factual matrix, this Court finds no merit in the
42
petition. The impugned order is both legally sound and judicially
reasoned. Therefore, the petition must fail.
22. Therefore, the following:
ORDER
(i) Writ Petition lacking in merits stands rejected.
(ii) Interim order, if any operating, shall stand dissolved.
(iii) Since the suit is of the year 2008 and 17 years have passed by, I deem it appropriate to infuse finality into these proceedings and direct the concerned Court to conclude the proceedings, within an outer limit of three months from the date of receipt of a copy of this order.
Sd/-
(M.NAGAPRASANNA) JUDGE bkp CT:MJ