Bombay High Court
Smt. Nirmalabai Wd/O Namdeorao ... vs Hariom S/O Ganeshlal Shahu (Abated) And ... on 22 May, 2026
2026:BHC-NAG:7367
SA 70-2023(J) - Copy.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO. 70 OF 2023
APPELLANTS :- 1. Smt. Nirmalabai wd/o Namdeorao
(ON R.A.) Mokarkar.
Aged about 71 years, Occu:
Household. R/o Plot No.1A,
deleted as per
Order dated Saikrupa Housing Society, Narendra
8.5.2025 Nagar, Nagpur.
2. Sau. Kusum w/o Madhukar Selukar,
Aged about 50 years, Occu:
Household, R/o Plot No. 17 Ward
No.1 Amravati Road, Gondkhari,
Nagpur.
3. Smt. Sangita wd/o Hemant
Mokarkar, Aged about 36 years,
Occu: Household. Behind Gangabai
Ghat, Nagpur.
Dead 4. Sunil s/o Namdeorao Mokarkar,
Aged about 44 years, Occu: Service,
Through power of attorney holder
for applicant Nos. 1 to 3.
Shri Sunil s/o Namdeorao
Mokarkar, Aged about 44 years,
Occu: Service, R/o Plot No. 1A,
Saikrupa Housing Society, Narendra
Nagar, Nagpur.
Amendment 4A Chandrakala wd/o Sunil Mokarkar,
carried out as per Age 47 years, Occu: Household
order dt.
16/12/25
SA 70-2023(J) - Copy.odt
2
4B Swapnil s/o Sunil Mokarkar,
Age 26 years, Occu: Service.
4C Sarthak s/o Sunil Mokarkar,
Age 16 (through natural guardian)
Occ: Student,
4A to 4C all R/o Plot No.1A,
Saikrupa Society, Narendra Nagar,
Nagpur.
..VERSUS..
RESPONDENTS :- 1. [Hariom s/o Ganeshlal Shahu,
(On R.A.) Aged about 52 years, Occ: Business,
R/o Juni Shukarwari, Sakkardara,
Matter is abated
Nagpur.] Abated.
against R.No.1,
vide R.(J) order
dated AND
20/06/2024
R/o C/o Sahakari Kirana @ Dhanya
Bhandar, Plot Nos. 70 & 71,
Near Mr. Pandurang Hiwarkar's
House, Parvati Nagar, Nagpur.
Amendment 1A Sarla wd/o Hariom Shahu,
carried out as per Age 59 years, Occu: Household,
order dt. 18/6/25 R/o House No. 366, Sakkardara
Road, Near Dr. Trivedi Clinic, Old
Shukrawari, Nagpur-440009.
1B Suhani w/o Rahul Patwa,
Age 38 years, Occu: Household,
R/o Plot No. 74/1 Sarafa Bazar,
Opp: Saibaba Bakery, Itwari,
Nagpur - 440002.
1C Sagar s/o Hariom Shahu,
Age 35 years, Occu: Nil,
SA 70-2023(J) - Copy.odt
3
R/o House No. 366, Sakkardara
Road, Near Dr. Trivedi Clinic, Old
Shukrawari, Nagpur.440009.
2. Balya s/o Dilip Mokarkar,
Aged about 13 years,
being minor, through its guardian
S.M. Mahajan, R/o Near Gulab
Dayal House, Rameshwari, Nagpur.
Name of R-3 is 3. [Arun @ Wasudeo s/o Namdeorao
struck of as per Mokarkar, Aged about 52 years,
order dt. 9/7/18. Occ: Service. ]
R/o c/o Shri P.B. Wankhede,
Plot No. B-10, Road No.6,
Vishwakarmanagar, Nagpur.
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S/Shri A.M.Ghare and R.R.Dawda, Advocates for Appellant nos.2, 3 & 4.
S/Shri Masood Shareef and S.T. Khan, Advocates for Respondent nos. 1(A)
to 1(C).
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CORAM : ROHIT W. JOSHI, J.
RESERVED ON : 06.04.2026
PRONOUNCED ON 22.05.2026
JUDGMENT:
1. The present appeal is preferred against judgment and decree dated 16/06/2016 passed by the learned District Judge-8, Nagpur in Reg. Civil Appeal No. 167 of 2013. By the said judgment and decree, the SA 70-2023(J) - Copy.odt 4 learned First Appellate Court has modified the judgment and decree dated 08/03/2013 by passed by the learned 2nd Joint Civil Judge, Senior Division, Nagpur in Spl. Civil Suit No. 956 of 2006, thereby granting a decree for specific performance of contract in place of decree for refund of money.
2. The appellants in the present appeal are original defendant nos. 1, 3, 4 and 5. The respondent no. 1 is the original plaintiff. The respondent nos. 2 and 3 are original defendant nos. 6 and 2 respectively. The parties will be referred to as "the plaintiff and defendants"
hereinafter.
3. It is the case of the plaintiff that he had entered into an agreement of sale with respect to suit property with the defendants on 12/03/2004 inter alia agreeing to purchase the suit property for total consideration of Rs.6,31,000/-, out of which a sum of SA 70-2023(J) - Copy.odt 5 Rs.1,25,000/- was paid on the date of agreement and thereafter, an amount of Rs.1,25,000/- was paid on 01/05/2004. The agreement dated 12/03/2004 is at Exh.
51. It bears the signature of defendant nos. 1 and 3 to 6. The defendant no. 2 who is one of the co-owners has not signed the agreement. The plaintiff is in possession of the suit property as a tenant of the defendants. The suit property comprises of Plot nos. 70 and 71, Khasra No. 54/1, House no. 5729, Babulkheda, Nagpur. The total area of the suit property is around 3,500 square feet.
4. During the pendency of the civil suit, the defendant no. 6 expired in the month of April, 2008. Application for bringing his legal representatives on record was allowed. The legal representative of defendant no. 6 was a minor. The learned Civil Court appointed a Guardian ad Litem for prosecution of the suit on behalf of legal representative of the minor.
SA 70-2023(J) - Copy.odt 6
5. The defendant nos. 1, 3, 5 and 6 had filed written statement in the suit. The defendant nos. 2 and 4 had not filed written statement. After demise of the defendant no. 6, the legal representative of defendant no. 6 had filed a separate written statement.
6. It is the case of the plaintiff that in terms of the agreement, mutation of the names of defendants was required to be done by the defendants in the City Survey record and in the record of Nagpur Municipal Corporation. The contention of the plaintiff is that in terms of the agreement, a written intimation with respect to mutation was required to be given by the defendants to him. The plaintiff contends that although mutation entry was recorded in the names of defendants on 03/02/2006, they did not furnish any intimation to him in that regard. The plaintiff, therefore, states that he had issued a notice dated 23/08/2006 for specific performance of contract. The plaintiff filed a suit for specific performance on SA 70-2023(J) - Copy.odt 7 07/10/2006 since the defendants did not execute the sale deed.
7. Perusal of the agreement of sale dated 12/03/2004 will indicate that it contends a covenant that the defendants will get the mutation done and issue a written intimation in that regard to the plaintiff and thereafter, the sale deed will be executed within a period of one month. The sale deed does not stipulate any date for execution and registration of the sale deed. The agreement provides that payment of Rs. 1,25,000/- was received by defendant no. 1 on the date of execution of agreement i.e. 12/03/2004 and the balance sale consideration was payable on the date of execution of sale deed.
8. The learned Trial Court framed issues in the matter. The plaintiff led his evidence and evidence of his brother who is attesting witness to the agreement. The SA 70-2023(J) - Copy.odt 8 plaintiff and the attesting witness were not cross- examined by the defendants earlier. However, the cross- examination of the plaintiff and his witness was conducted by the legal representative of defendant no. 6.
9. The learned trial Court dismissed the suit with respect to prayer for specific performance of contract. It has held that since the agreement was not signed by all the co-owners, the agreement was legally not enforceable. In view of the aforesaid, the learned trial Court refused to grant decree for specific performance of contract and instead passed a decree for refund of amount paid by the plaintiff to the defendants. The learned Trial Court has also held that after execution of the agreement on 12/03/2004, the plaintiff did not take any active steps to urge the defendants to complete the formalities of mutation and further that although the issues in the suit were framed on 09/01/2008, the affidavit in lieu of examination-in-chief was filed 30/09/2011. The learned SA 70-2023(J) - Copy.odt 9 trial Court has held that the conduct of the plaintiff after filing of the suit also dis-entitled him to claim discretionary relief of specific performance.
10. Being aggrieved by the aforesaid decree, the plaintiff preferred an appeal before the learned District Court. The learned District Judge has allowed the appeal preferred by the plaintiff and granted a decree for specific performance of contract. The learned First Appellate Court has held that the agreement was enforceable with respect to shares of the parties who were signatories to the agreement in view of Section 12(3) of the Specific Relief Act (for brevity, "S.R. Act") and that except for the defendant no. 2, decree for specific performance could be granted against other defendants. As regards readiness and willingness, the learned First Appellant Court has held that the defendants were at fault in not communicating the fact of mutation being recorded in their names. In view of such findings, the learned First SA 70-2023(J) - Copy.odt 10 Appellate Court has reversed the decreed passed by the learned trial Court and has partly allowed the suit by granting decree for specific performance.
11. Vide order dated 22/07/2025, two substantial questions of law were framed in the appeal and with the consent of the learned Advocates, the appeal was ordered to be listed for final hearing. Thereafter, vide order dated 29/01/2006, an additional substantial question of law was framed with respect to section 12 of SR Act. Substantial Questions of Law:-
"i) Whether the First Appellate Court while setting aside the finding of the Trial Court with regard to readiness and willingness of the plaintiff has followed the principles laid down in the case of Santosh Hajari Vs. Purushottam Tiwari [(2001) 3 SCC 179] and considered the reasons recorded by the Trial Court ?
ii) Whether the failure to inform by the appellants in writing to the original plaintiff regarding the mutation entry would absolve original plaintiff from proving that he was ready and willing through out to perform his part of the contract?"
iii) Whether the learned first Appellate Court has erred in law in granting decree for specific performance with respect to SA 70-2023(J) - Copy.odt 11 undivided share of defendant Nos.1 and 3 to 6, in the absence of any statement by the plaintiff, as contemplated under Section 12 (3) of the Specific Relief Act, 1963 ? Substantial Question of Law No. (iii):-
"iii) Whether the learned first Appellate Court has erred in law in granting decree for specific performance with respect to undivided share of defendant Nos.1 and 3 to 6, in the absence of any statement by the plaintiff, as contemplated under Section 12 (3) of the Specific Relief Act, 1963"
12. The agreement of sale is dated 12/03/2004. It admittedly not signed by defendant no. 2 who is one of the co-owners. In this context, the question that arises for consideration is as to whether such an agreement, to which one of the co-owners is not a party, can be enforced by a Court of law by granting decree for specific performance of contract.
13. The learned advocate for the appellants/defendants argues that the issue will have to be decided in view of section 12 of the SR Act. As against this contention of the learned Advocate for the SA 70-2023(J) - Copy.odt 12 respondent/original plaintiff is that Section 12 of the S.R. Act is not attracted at all and the decree for specific performance passed by the learned First Appellant Court will have to be viewed as a decree directing the defendant nos. 1 and 3 to 6 to execute sale deed with respect to their respective shares in the suit property which implies that each of the defendants is directed to honour the agreement with respect to his/her full share in the suit property and as such, this will not be a case of partial performance but of complete enforcement of agreement qua share of each defendant who has signed the agreement.
14. Mr. Ghare disputes the contention of the learned Advocate for the plaintiff that Section 12 of the S.R. Act will not be attracted in the facts of the present case.
SA 70-2023(J) - Copy.odt 13
15. Mr. A.M. Ghare, the learned Advocate for the appellants/original defendants has filed a compilation of cases dealing with Section 12(3) of the S.R. Act. However, he has extensively referred to the judgments of the Hon'ble Supreme Court in the cases of Surinder Singh V/s. Kapoor Singh (dead) thr. LRs. and ors. reported in (2005) 5 SCC 142 and Pemmada Prabhakar and ors. V/s. Youngmen's Vysya Association and ors. reported in (2015) 5 SCC 355 and also the judgment of the Kerala High Court in the case of Hajira V/s. Anto reported in 2018 SCC OnLine Ker 906.
16. Mr. Ghare vehemently argues that in order to seek specific performance of a part of contract, it was necessary for the plaintiff to specifically relinquish all his claim with respect to part of the contract which cannot be performed. Mr. Ghare states that there should be a positive statement on record by the plaintiff that he has paid or that he is agreeable to pay the whole of the SA 70-2023(J) - Copy.odt 14 contract consideration, reduced by that much part which cannot be performed or that he must state that he is ready and willing to pay the entire agreed amount of consideration. He further states that the plaintiff must relinquish all his claims with respect to such part of the contract which cannot be performed. The relinquishment must be with respect to performance of such part as also right to receive compensation with respect to the same.
17. He further argues that in a suit for specific performance the plaintiff must plead and prove his readiness and willingness and in a case covered by Section 12 the plaintiff must specifically plead that he is ready to give up claim with respect to performance of or compensation against, such part of the agreement which cannot be specifically performed. It is further argued that if the plaintiff makes a general statement regarding readiness and willingness without segregating such part of the agreement which is not capable of being SA 70-2023(J) - Copy.odt 15 specifically performed, then the implication will be that the plaintiff is not ready and willing to accept partial performance of contract.
18. He further contends that although a statement that the plaintiff is giving up his right towards performance or compensation for part of the agreement which is not capable of specific performance can be made at any stage, such statement if made at a belated stage can be accepted only if it is established that the delay does not cause any prejudice to the defendants. By drawing attention to the judgments passed by the learned Trial Court as also the learned First Appellant Court it is contended that before the learned Trial Court as well as the learned First Appellate Court, a statement as contemplated under Section 12(3) of the S.R. Act was not made either before the learned Trial Court of before the learned First Appellate Court. Mr. Ghare argues that such a statement as is contemplated under Section 12(3) of the SA 70-2023(J) - Copy.odt 16 S.R. Act is made for the first time before this Court and that to after the hearing of the Appeal is commenced. He contends that the statement cannot be accepted at this belated stage.
19. Per contra, Mr. Masood Shareef, the learned Advocate for the plaintiff argues by making reference to the judgment of the Hon'ble Supreme Court in the case of Kartar Singh V/s. Harjinder Singh and ors., reported in AIR 1990 SC 854 that section 12 of the S.R. Act will not be attracted at all. He contends that the agreement is a complete agreement with respect to shares of defendant nos. 1 and 3 to 6 who have signed the agreement. He therefore, contends that Section 12(3) of the S.R. Act will not have any application.
20. In the alternative, Mr. Shareef also contends that waiver as contemplated under Section 12(3) of the S.R. Act can be made at any stage. The learned Advocate states that the legal position in this regard is well settled.
SA 70-2023(J) - Copy.odt 17 He too draws attention to the judgment of the Hon'ble Supreme Court in the case of Surinder Singh (supra) on which heavy reliance is placed by the learned Advocate for the appellants/defendants. The learned Advocate further contends that the Hon'ble Supreme Court has also held that Section 12(3) of the S.R.Act is a beneficial provision incorporated for the person in whose favour agreement is executed and that normally, performance of contract should not be denied to a person only because the persons with whom he enters into an agreement are not in a position to honour the entire agreement.
21. The plaintiff has filed statement in the form of an affidavit before this Court giving up claim for performance of agreement with respect to share of the defendant no.2 without seeking rateable reduction in the sale consideration and claim for compensation with respect to part of agreement which cannot be performed is also given up.
SA 70-2023(J) - Copy.odt 18
22. The learned Trial Court has not adverted to Section 12(3) of SRA in holding that the agreement was void since it was not signed by one of the co-owners namely defendant no. 2. The learned First Appellant has invoked the Section 12(3) of the S.R. Act. Although the provisions can be invoked in the present case, as is done by the learned First Appellate Court, however, the learned First Appellate Court has lost sight of the fact that the plaintiff did not make any statement relinquishing his right for performance and or compensation with respect to part of the agreement which could not be performed. The learned First Appellate Court has also erred in granting decree for specific performance in the absence of any specific statement by the plaintiff relinquishing his rights, as contemplated under Section 12(3).
23. However, the said aspect is now rendered academic since the plaintiff has made such positive statement before this Court.
SA 70-2023(J) - Copy.odt 19
24. As regards his contention that at this belated stage such statement cannot be taken into consideration, Mr. Ghare places reliance on judgment of the Kerla High Court in the case of Hajira (supra). Mr. Ghare draws attention to paragraph nos. 8 and 9 of the said judgment and contends that it is a settled legal principle that in order to succeed in a suit for specific performance of contract, the plaintiff must plead and prove his readiness and willingness. He contends that in a situation covered by Section 12 of the S.R. Act, in order to make out a case of readiness and willingness, the plaintiff must plead and prove his readiness and willingness to accept specific performance of partial agreement by giving up right to enforce and/or seek compensation for the part which cannot be performed. His contention is that a statement regarding readiness and willingness with respect to entire agreement will imply that the plaintiff is not ready and willing to accept partial performance. It is held in the said SA 70-2023(J) - Copy.odt 20 case that statement as per section 12(3) of SR Act can be made at any stage including before the Hon'ble Supreme Court. However in paragraph 9 of the judgement it is held that such statement must be incorporated in the pleading.
25. The contention of Mr. Ghare is that the affidavit filed at belated stage cannot be accepted, since it cannot be treated either as an application under Section 12(3) of the S.R. Act or as a pleading under Order 6, Rule 1 of the Code of Civil Procedure. Mr. Ghare contends that either an application or a pleading in the plaint must be incorporated to satisfy the mandate of section 12(3).
26. I am unable to accept this contention of the learned Advocate, in view of judgment of the Hon'ble Supreme Court in the case of Surinder Singh (supra). The Hon'ble Supreme Court has referred to a Division Bench judgment of the Hon'ble Patna High Court in the case of Girdhar Das Anandji V/s. Jivaraj Madhavji Patel reported SA 70-2023(J) - Copy.odt 21 in 1971 Pat LJR 66 and has quoted the following observations in the said judgment with approval.
""I have already stated that learned Advocate General while opening the case of his client specifically stated that he was giving up the cross-objection and that he was relinquishing claim for further performance and for compensation, etc. as required under Section 15 of the Specific Relief Act, 1877. The relinquishment as required by law, having been made in this Court the plaintiff-respondent could not be non-suited on this ground."
27. Referring to the said statement, the Hon'ble Supreme Court accepted the statement made by the learned Advocate representing the plaintiff across the bar that the plaintiff was ready to give up his claim as contemplated under Section 12(3) of the S.R. Act. It is held that the decree for specific performance could be upheld in view of the said statement alone and also in view of the application for amendment of plaint. It is further observed that although the application did not strictly comply with the requirements of Section 12(3)(b)
(ii), the intention was obvious. Noticing that the amendment was not strictly in compliance with the said SA 70-2023(J) - Copy.odt 22 provision, the Hon'ble Supreme Court upheld the decree for specific performance merely on the basis of statement made before it by the learned Advocate for plaintiff. The statement with respect to Section 12(3) of the S.R. Act was made for the first time before the Hon'ble Supreme Court and the same was accepted. The relevant observations of the Hon'ble Supreme Court in paragraph 16 of the judgment is reproduced hereinbelow:-
"16. In view of the legal position and also in view of the statement made across the Bar including the application for amendment of the plaint filed on behalf of the plaintiff- respondents in this Court, there cannot be any doubt that this Court can uphold the decree passed by the Division Bench of the High Court relying on or on the basis of such statement as also upon allowing the application for amendment of the plaint. It may be true that in the application for amendment, there is no specific averment as contained in clause (ii) of sub-section (3) of Section 12 of the Act but the entire application, in our opinion, has to be read as a whole. The plaintiff-respondents have referred to the prayers made in the plaint and have sought to substitute the same by a prayer as noticed hereinbefore and, thus, by necessary implication, the relief for obtaining compensation must be held to have been given up. In any event, such a statement was made at the Bar and we accept the same"
28. In view of the aforesaid, the contention that the affidavit filed before this Court will not be enough to SA 70-2023(J) - Copy.odt 23 make out a case entitling the respondent/plaintiff to a decree for specific performance of partial agreement under Section 12(3) is liable to be rejected. It must be stated that the Hon'ble Supreme Court has held that the statement as contemplated under Section 12(3) of the S.R. Act can be made at any stage for the first time including before the Hon'ble Supreme Court unless there is a prior statement to the contrary view. Likewise a mere statement made by the Advocate was accepted by the Hon'ble Supreme Court to hold that the requirement under Section 12(3) of the S.R Act was satisfied. In the present case, the respondent/plaintiff has filed a specific affidavit giving of his claim as contemplated under Section 12(3) of the S.R. Act. It will be pertinent to state that the respondent/plaintiff is also not claiming proportionate reduction in the sale consideration.
29. The observations by the Hon'ble Kerla High Court that plaint must be necessarily amended in order to SA 70-2023(J) - Copy.odt 24 incorporate statement as contemplated under Section 12(3) of SR Act cannot be accepted in view of paragraph 16 of the judgment of the Hon'ble Supreme Court in the case of Surinder Singh (supra).
30. The judgment in the case of Pemmada Prabhakar and ors. (supra) does not deal with Section 12 of the S.R.Act. The judgment refers to Section 17 of the S.R.Act which provides that the agreement for sale of immovable property cannot be enforced at the behest of vendor or lessor who does not have valid marketable title. The said judgment also does not deal with earlier decisions of the Hon'ble Supreme Court on Section 12 of the SR Act including the judgments in the case of Kartar Singh (supra) and Surinder Singh (supra).
31. The third substantial question of law relating to partial performance as per Section 12(3) of the S.R. Act is, therefore, answered in favour of the respondent /plaintiff and against the appellants/defendants.
SA 70-2023(J) - Copy.odt 25 Substantial Questions of Law Nos. (i) and (ii):-
"i) Whether the First Appellate Court while setting aside the finding of the Trial Court with regard to readiness and willingness of the plaintiff has followed the principles laid down in the case of Santosh Hajari Vs. Purushottam Tiwari [(2001) 3 SCC 179] and considered the reasons recorded by the Trial Court ?
ii) Whether the failure to inform by the appellants in writing to the original plaintiff regarding the mutation entry would absolve original plaintiff from proving that he was ready and willing through out to perform his part of the contract?"
32. The learned Trial Court has refused to grant decree for specific performance of contract on the ground that the plaintiff did not take pro-active steps to call upon the defendants to complete the sale transaction and also having regard to conduct of the plaintiffs after filing of the suit in not leading evidence for a period of over three and half years after framing of issues disentitled him from seeking discretionary relief of specific performance.
SA 70-2023(J) - Copy.odt 26
33. In this regard, it must be stated that the agreement is dated 12/03/2004. The agreement provides that the defendants were to get their names mutated in the record of City Survey Department and Nagpur Municipal Corporation and thereafter, issue a written communication to the plaintiff regarding the said compliance and that the sale deed was to be executed within a period of one month therefrom. The agreement does not contemplate any period for the defendants to complete the said formalities. The plaintiff was in occupation of the suit property prior to the date of execution of the agreement as a tenant. It is proved that the names of defendants were mutated in the City Survey record on 03/02/2006. The plaintiff had issued notice for specific performance on 23/08/2006. It is stated in the notice that although the defendants had got their names mutated, they did not inform the plaintiffs about the same. It must also be stated that the issues in the suit SA 70-2023(J) - Copy.odt 27 were framed on 09/01/2008. The affidavit of examination-in-chief is filed on 30/09/2011. The learned Trial Court has refused to grant discretionary relief of specific performance in view of the fact that for a period of around over two years, the plaintiff did not pursue the defendants to get the mutation done and even after filing of the suit, the plaintiff was not proactive in prosecuting the same.
34. The learned First Appellate Court has observed that the defendants had failed to discharge their obligation of communicating the fact of mutation of their names to the plaintiff. It is observed that the plaintiff could not be held responsible for the delay. In view of such observations made in para 38 of the judgment, the learned First Appellate Court has answered the point of readiness and willingness in favour of the plaintiff. It is in this backdrop that the aforesaid the substantial questions of law nos. (i) and (ii) are framed.
SA 70-2023(J) - Copy.odt 28
35. By now, it is well settled that even in case where the defendant commits breach of the agreement, it is necessary for the plaintiff to plead and prove readiness and willingness. The pleading with respect to readiness and willingness and the evidence with respect to the same is required even in cases like the present where the defendants have not contested the suit. It is a statutory mandate that a decree for specific performance should not be granted unless the Court arrives at a satisfaction that the plaintiff was all the while ready and willing to perform his part of contract. The plaintiff must establish continuous readiness and willingness even in cases where the defendant does not contest the suit or is found to be in breach of agreement. Reliance in support of this contention can be placed on the judgment of the Hon'ble Supreme Court in the case of Man Kaur (dead) V/s. Hartar Singha reported in (2010) 10 SCC 512 as also the judgment in the case of N.P. Thirugnanam (D) by LRs V/s.
SA 70-2023(J) - Copy.odt 29 Dr. R. Jagan Mohan Rao reported in (1995) 5 SCC 115.
36. In the present case, the learned First Appellate Court has merely recorded that the defendants had committed breach of agreement by not disclosing fact of mutation to the plaintiff. The learned First Appellate Court has merely recorded single sentence that the plaintiff was ready and willing to perform his part of contract. The learned First Appellate Court has not recorded any cogent reason for arriving at such conclusion. The issue of readiness and willingness is not properly dealt with. The learned Trial Court has recorded two principal reasons to hold that the plaintiff was not all the while ready and willing to perform his part of contract, (i) the plaintiff did not take proper follow up with the defendants for mutation and (ii) the plaintiff consumed period of over three and half years in filing an affidavit of examination-in-chief after framing of issues. Although it was open for the learned First Appellate Court SA 70-2023(J) - Copy.odt 30 to take a different view, in the light of law laid down by the Hon'ble Supreme Court in the case of Santosh Hajari V/s. Purushottam Tiwari reported in (2001) 3 SCC 179, it was necessary for the learned First Appellate Court to specifically deal with the findings recorded by the learned trial Court and then take a different view, if at all it deemed it appropriate, for reasons to be recorded in the judgment. The learned First Appellate Court has failed to do so. The learned First Appellate Court has failed to perform its duties as the Court exercising appellate jurisdiction under Section 96 of the C.P.C. properly, particularly in view of the fact that it was reversing judgment passed by the learned Trial Court. The learned First Appellate Court has also not considered the legal position that despite breach of agreement by defendants, the plaintiff will have to establish readiness and willingness. In view of the aforesaid substantial question of law nos.(i) and (ii) are answered in favour of the SA 70-2023(J) - Copy.odt 31 appellants/defendants and against the respondent /plaintiff.
37. In the result, the appeal will have to be remanded back to the learned First Appellate Court for deciding the issue of readiness and willingness afresh by taking into consideration the findings recorded by the learned Trial Court.
38. A period of around 22 years has been lapsed since the date of execution of agreement as also around 20 years have lapsed since the date of filing of suit. In the circumstances, in case, the learned First Appellate Court is inclined to grant decree for specific performance, it may consider directing payment of additional consideration in order to balance the equities.
39. It is clarified that this Court has not expressed any opinion as regards the merits on the issue of readiness and willingness. The observations above are only to the SA 70-2023(J) - Copy.odt 32 effect that the learned First Appellate Court has not dealt with the findings recorded by the learned Trial Court, which does not mean that the findings recorded by the learned Trial Court are ratified. The observations with respect to balancing of equities are also by way of suggestion.
40. In the result, the appeal is partly allowed as under:-
(i) Judgment and decree dated 16/06/2016 passed by learned District Judge-8, Nagpur in Regular Civil Appeal No. 167/2013 is quashed and set aside.
(ii) Regular Civil Appeal No. 167/2013 is remanded back to the learned First Appellate Court for deciding the issue of readiness and willingness afresh by giving an opportunity of hearing to the parties.
(iii) The parties shall appear before the learned First Appellate Court on 22/06/2026.
SA 70-2023(J) - Copy.odt 33
(iv) The parties appearing in the present appeal to note that a separate notice of appearance will not be issued by the learned First Appellate Court.
41. Court fees be refunded to the appellant in accordance with law.
42. Parties to bear their own costs.
(ROHIT W. JOSHI, J.) Khapekar