Harihar Sah vs Pashupati Sao

S.K. Jha, J.—The plaintiff of Title Suit No. 50/75 of the court of Munsif, Chapra is the petitioner here and has come up to this Court against the order dated 17.9.1983 passed by the lower appellate court, namely the 2nd Subordinate Judge Chapra in Title Appeal No. 27/80. By the impugned order the lower appellate court has rejected the prayer of the petitioner for the so called amendment of the plaint. A very short background of the facts is warranted to be narrated. They are these. The petitioner instituted the suit for specific performance of contract averring in paragraph 18 of the plaint that the plaintiff was still ready and willing to perform his part of the contract. The trial court interalia, found that there was no Government in the plaint in terms of section 16(c)of the Specific Relief Act, 1963 (Act No. 47 of 1963) (hereinafter referred to as the Act) resulting in a dismissal of the suit. The petitioner, when he went up in appeal to the lower appellate court, wanted by way of abundant caution to give some more particulars in support of the averment already made in the plaint that he was still willing to perform and has always been ready and willing to perform the essential terms of the contract. By the impugned order, the lower appellate court has rejected the petitioner''s prayer on the ground that it will change the nature of the suit or the cause of action as also it would be giving an opportunity to the petitioner to fill up the lacuna in the plaint which was fatal to the suit being in contravention of the provisions of section 16(c) of the Act. It is pertinent to note here that the suit was one for specific performance of contract of a rule. I have stated this merely in order to highlight one aspect of the matter which deserves serious consideration. The averment, as originally made in paragraph 18 of the plaint was to the effect that the plaintiff was still ready and willing to perform his part of the contract which in its turn, embraces with regard to the readiness and willingness on his part to perform the essential term of the contract at all points of time before the institution of the suit. The explanation appended to clause (c) of section.18of the Act reads thus :

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 defendent or to deposit in Court any money except when so directed by the Court:

(ii) the plaintiff must ever performance of, or readiness and willingness to perform, the contract according to its true construction.

The rationale behind the expression is to cover cases of the instant nature. It would bear repetition, and it is essential to repeat, that the averment in paragraph 18 of the plaint as it originally stood, was to the effect that the plaintiff was ''still'' ready and willing to perform his part of the contract. It is implicit there from that he has all along been ready and willing to perform his part of the contract, otherwise the word ''still'' will be absolutely redundant and otiose. To say that such an averment be amended by giving more and better particulars for the same amount to changing the nature of the suit or to fill up the lacuna proving fatal to the suit itself, would, in my view, be piling unreason upon technicality.

On the facts and in the circumstances of the case, therefore, Mr. S.C. Ghose, Learned Counsel for the petitioner, rightly pressed into service a decision of the Supreme Court in the case of Ramesh Chandra Chandlok and another v. Chuni Lal Sabharwal and others (A.I.R. 1971 S.C. 1238) wherein a case of similar nature, although the facts were a little distinct and not identical it was held that;--

On the facts and in the circumstances of the case, readiness and willingness cannot be treated as a strait-jacket formula. These have to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned. In our judgment there was nothing to indicate that the appellants at any stage were not ready and willing to perform their part of the contract".

Therefore, the very moment the plaintiff has stated that he was still ready and willing to perform his part of the contract embraces therein his readings and willingness to perform his part of the contract at all time. In the circumstances, I am constrained to hold that the court of appeal below has failed to exercise the jurisdiction vested in it by law and thereby the impugned order suffers from a grave jurisdictional error. The amendment sought by the petitioner must be allowed in the circumstances of the case and it is directed to be done. The application is, accordingly, allowed but, in all fairness to Mr. Bishwanath Agarawal, Learned Counsel for the opposite party, I shall make no order as to costs.