[Cites 7, Cited by 0]
Bombay High Court
Smt. Nirmalabai Wd/O Namdeorao ... vs Hariom S/O Ganeshlal Shahu (Abated) And ... on 22 May, 2026
2026:BHC-NAG:7367
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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
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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,
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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.
------------------------------------------------------------------------------------------------------------------------------------
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
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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
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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.
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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.
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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.
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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.
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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
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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
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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
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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
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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
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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.
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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.
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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
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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.
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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.
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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
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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
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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
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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.
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(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
