Two issues were posed before the Apex Court for adjudication, firstly, the jurisdiction of High Court while entertaining the Second Appeal, and secondly, meaning of the expression readiness and willingness a suit for specific performance.
In regard to the first issue, the Apex Court held that jurisdiction of the High Court while entertaining second appeal is restricted to such appeals which involves substantial question of law. High Court, as per the mandate given under Section 100 of the Code of Civil Procedure, 1908, has to first formulate a substantial question of law at the time of admission of the appeal or in other words before hearing the appeal, failing which judgment if passed in second appeal would stand vitiated in law.
The second issue was in regard to meaning of the expression readiness and willingness a suit for specific performance. The Apex Court reiterated the position of law that in a suit for specific performance the Plaintiff must show that he is ready and willing to carry out the obligations which are part of the consideration for the undertaking of the Defendant or the opposite party.
For the compliance of Section 16(c) of the Specific Performance Act it is not necessary for the plaintiff to aver in the same words used in the section i.e. ready and willing to perform the contract. Absence of the specific words in the plaint would not result in dismissal of the suit if sufficient fact and evidence are brought on record to satisfy the court the readiness and willingness to perform his part of the contract.
The readiness and willingness of person seeking performance means that the person claiming performance has kept the contract subsisting with preparedness to fulfil his obligation and accept the performance when the time for performance arrive.
[Biswanath Ghosh (Dead) by LRs. and Ors. vs. Gobinda Ghosh
Alias Gobinda Chandra Ghosh and Ors.]