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1 - 10 of 20 (0.36 seconds)Ram Singhasan Choubey And Ors. vs Sudama Prasad Sah on 9 April, 1982
The decision in Ram Singhasan, and Mohamood Khan's case, are not applicable to the case on hand as the facts involved in those cases are not similar. Further those decisions rest upon the particular facts involved in those cases. In the instant case, it is already held that the plaint averments are sufficient to constitute plaintiff's readiness and willingness to perform his part of the agreement. The plaint does not suffer from absence of cause of action.
Jai Jai Ram Manohar Lal vs National Building Material Supply, ... on 17 March, 1969
This decision in Jai Jai Ram (Supra) has been followed by the Supreme Court in the later decision in Ganesh Trading Co., . If the materials on record clearly and sufficiently demonstrate plaintiff's readiness and willingness, the plaintiff should not be non-suited because he or his lawyer did not know how to draft a plaint and did not insert in the plaint the necessary averment as to such readiness and willingness. Since it has never been the case of the defendant either in the written statement or at the trial or before us that the plaintiff was not ready and willing to perform his part of the contract, the defendant's only case being that there was no offer on his part or at any rate, no acceptance on the part of the plaintiff, there would be no 'injustice' to him if the plaintiff is now allowed to amend his plaint to insert the requisite averment as to his readiness and willingness and no 'injury' to him either which cannot be compensated for by an order of costs. We therefore, allow the application for amendment of the plaint but direct that the plaintiff-respondent shall pay Rs. 500/- to the appellant as cost for the same."
Prag Datt vs Smt. Saraswati Devi And Anr. on 8 July, 1981
In PRAG DATT v. SARASWATI DEVI AND ANR., , after referring to the decision in Mahamood Khan's case, it has been observed that on facts, however, no two cases may be a like and observations made on a particular set of facts in a case cannot be relied upon to support a case on totally different set of facts. While dealing with Section 16(c), of the Specific Relief Act, and of Form-47 of Appendix 'A' to the Civil Procedure Code it has been observed that they are not intended to be interpreted narrowly and in a hyper technical manner. It is the substance of the matter which is of importance. If from the averments made in the plaint and the surrounding circumstances, it is established in substance that the plaintiff was ready and willing to perform his part of the contract and had remained ready and willing to perform the same throughout, it would not be proper to non-suit him on a verbal omission here or there.
Byomkesh Banerjee vs Nani Gopal Banik on 18 August, 1986
We are in agreement with the view expressed in the portions of the Judgment as underlined by us of the High Court of Calcutta in Byomkesh's case, .
Ardeshir H. Mama vs Flora Sassoon on 21 May, 1928
"Section 16(c) of the Specific Relief Act, 1963 provides that "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 expression aver and prove would indicate that the plaintiff must not only prove at the trial his readiness and willingness but must also aver the same in the plaint. The necessity of such an averment would also appear from the provisions of Explanation (ii) to Section 16 wherein it has been provided that "the plaintiff must aver.......readiness and willingness to perform the contract according to its true construction." Even under the preceding Specific Relief Act of 1877, which did not contain any such provision analogous to Section 16(c) requiring the plaintiff to plead as well as to prove his readiness and willingness at all relevant time during the contract, it was nevertheless held that the plaintiff was to plead as well as prove such readiness and was to fail if he had failed to do so. This would appear from the decisions of the Privy Council in Ardeshir v. Flora AIR 1928 PC 208 at Page 216, and of the Supreme Court in Gomathinayagam v. Paliniswami, in Prem Raj v. D.L.F. Housing & Construction Ltd., , and in Ouseph Varghese v. Joseph Aley, and the law was that a Suit for specific performance without any averment in the plaint as to the plaintiff's readiness and willingness was not maintainable. But, where as here, not-withstanding the absence of any such averment in the plaint, the trial Court has proceeded with the trial and the defendant has fully participated therein without any objection and the trial has ended in a decree and no objection has been taken by the defendant either in the memo of appeal or in the argument before the Appellate Court as to the absence of such averment in the plaint or want of readiness and willingness on the part of the plaintiff and the Appellate Court also finds that there is satisfacory evidence as to the plaintiff's readiness and willingness, the suit, in our view, should not be thrown out solely on the ground that the plaint did not contain the averment as required under Section 16(c) but the plaintiff should be given every reasonable opportunity to make good the detect by amendment of the plaint.
Prem Raj vs D.L.F. Housing & Construction Pvt. Ltd. ... on 4 April, 1968
"Section 16(c) of the Specific Relief Act, 1963 provides that "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 expression aver and prove would indicate that the plaintiff must not only prove at the trial his readiness and willingness but must also aver the same in the plaint. The necessity of such an averment would also appear from the provisions of Explanation (ii) to Section 16 wherein it has been provided that "the plaintiff must aver.......readiness and willingness to perform the contract according to its true construction." Even under the preceding Specific Relief Act of 1877, which did not contain any such provision analogous to Section 16(c) requiring the plaintiff to plead as well as to prove his readiness and willingness at all relevant time during the contract, it was nevertheless held that the plaintiff was to plead as well as prove such readiness and was to fail if he had failed to do so. This would appear from the decisions of the Privy Council in Ardeshir v. Flora AIR 1928 PC 208 at Page 216, and of the Supreme Court in Gomathinayagam v. Paliniswami, in Prem Raj v. D.L.F. Housing & Construction Ltd., , and in Ouseph Varghese v. Joseph Aley, and the law was that a Suit for specific performance without any averment in the plaint as to the plaintiff's readiness and willingness was not maintainable. But, where as here, not-withstanding the absence of any such averment in the plaint, the trial Court has proceeded with the trial and the defendant has fully participated therein without any objection and the trial has ended in a decree and no objection has been taken by the defendant either in the memo of appeal or in the argument before the Appellate Court as to the absence of such averment in the plaint or want of readiness and willingness on the part of the plaintiff and the Appellate Court also finds that there is satisfacory evidence as to the plaintiff's readiness and willingness, the suit, in our view, should not be thrown out solely on the ground that the plaint did not contain the averment as required under Section 16(c) but the plaintiff should be given every reasonable opportunity to make good the detect by amendment of the plaint.
Ouseph Varghese vs Joseph Aley & Ors on 18 August, 1969
"Section 16(c) of the Specific Relief Act, 1963 provides that "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 expression aver and prove would indicate that the plaintiff must not only prove at the trial his readiness and willingness but must also aver the same in the plaint. The necessity of such an averment would also appear from the provisions of Explanation (ii) to Section 16 wherein it has been provided that "the plaintiff must aver.......readiness and willingness to perform the contract according to its true construction." Even under the preceding Specific Relief Act of 1877, which did not contain any such provision analogous to Section 16(c) requiring the plaintiff to plead as well as to prove his readiness and willingness at all relevant time during the contract, it was nevertheless held that the plaintiff was to plead as well as prove such readiness and was to fail if he had failed to do so. This would appear from the decisions of the Privy Council in Ardeshir v. Flora AIR 1928 PC 208 at Page 216, and of the Supreme Court in Gomathinayagam v. Paliniswami, in Prem Raj v. D.L.F. Housing & Construction Ltd., , and in Ouseph Varghese v. Joseph Aley, and the law was that a Suit for specific performance without any averment in the plaint as to the plaintiff's readiness and willingness was not maintainable. But, where as here, not-withstanding the absence of any such averment in the plaint, the trial Court has proceeded with the trial and the defendant has fully participated therein without any objection and the trial has ended in a decree and no objection has been taken by the defendant either in the memo of appeal or in the argument before the Appellate Court as to the absence of such averment in the plaint or want of readiness and willingness on the part of the plaintiff and the Appellate Court also finds that there is satisfacory evidence as to the plaintiff's readiness and willingness, the suit, in our view, should not be thrown out solely on the ground that the plaint did not contain the averment as required under Section 16(c) but the plaintiff should be given every reasonable opportunity to make good the detect by amendment of the plaint.
Manick Lal Seal And Anr. vs K.P. Chowdhury on 23 September, 1975
In Manick Lal Seal v. K.P. Choudhury. , such, a prayer for an amendment was refused by a learned single Judge of this Court on the sole ground that the plaintiff did not say anywhere that even at the time of hearing he was willing and ready........". In this case, the plaintiff has not only demonstrated his readiness and willingness by three repeated attempts in quick succession to send the advance amount by Bank Draft to the defendant, by sending repeated notices through his lawyer and by filing this suit at an early date, but his unchallenged categorical statement on oath as PW-1 is that "I am always ready and willing to perform my part of the contract." It should be noted that it was not the case of the defendant at any stage either in the written statement or at the trial or even before us that the plaintiff was not so, ready and willing.
R. C. Chandiok & Anr vs Chuni Lal Sabharwal & Ors on 12 October, 1970
44. No doubt the relief relating to specific performance is discretionary but it is not arbitrary. The discretion has to be exercised in accordance with the sound and reasonable judicial principles. The conduct of the parties seeking specific performance is an important element for consideration. The Supreme Court in Ramesh Chandra's case, has observed thus :