Satish Chandra, C. J. - (1.) THIS is a plaintiff's application in revision. It is directed against an order of the learned Civil Judge dismissing an application for amendment of the plaint.
(2.) THE suit was for specific performance of a contract dated August 23, 1976 for sale of a portion of a house. THE suit was filed on August 4, 1979. THE application for amendment was instituted by the plaintiff on November 20, 1979. THE plaintiff wanted to add in the plaint the plea that the plaintiff is still ready and willing to perform his part of the agreement. THE learned Civil Judge dismissed the application. THE court held that in view of Sec. 16 (c) of the Specific Relief Act the plaintiff has to make the requisite averment in the plaint and then to prove by evidence that he has always been ready and willing to perform his part of the contract. In the absence of such an averment in the plaint, the suit cannot succeed. Since valuable right has accrued to the defendant and, in the second place, because the amendment seeks to bring out a fresh cause of action in the plaint which was originally absent, the amendment cannot be allowed. In the original plaint, it was pleaded that the plaintiff was a tenant in a portion of the house which was subject-matter of the contract of sale by the defendant to the plaintiff for a sum of Rs. 35,000/-. The plaintiff alleged that he had advanced a sum of Rs. 5,000/- to the defendant on August 23, 1976, the date on which the defendant executed an agreement to sell; the portion in his tenancy to him. The plaint went on to allege that the defendant had promised to obtain permission from the ceiling authorities to sell the house to him but he kept on deferring the matter. The plaintiff several times approached the defendant to get the sale deed registered but the defendant put the plaintiff off on one pretext or another. It was further alleged that the defendant is trying to resile from the contract because he wants to sell it to some other party for a higher price. In paragraph 8 of the plaint it was stated that the cause of action for the present suit arose on August 23, 1976 when the agreement was entered into between the parties at Allahabad and on all subsequent dates, when the plaintiff offered to pay the price and get the sale deed registered. Form No. 47 of Appendix A CPC gives the model form for a plaint for a suit for specific performance of contract of sale. Clause (3) of this Form provides : (3) The plaintiff has been and is still ready and willing specifically to perform the agreement on his part of which the defendant has had notice." In accordance with this Form such an allegation should be made in the plaint.
(3.) SECTION 16 (c) of the Specific Relief Act 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 is always ready and willing to perform the essential part of the contract, which has to be performed by him other than the terms, the performance of which has been prevented or waived by the defendant. Reading these two statutory provisions, it is plaint that the plaintiffs' willingness and readiness to perform his part of the agreement has not only to be proved but has also to dearly stated in the plaint. Lack of such an averment in the plaint can lead to the dismissal of the sujt on the ground .that relief of specific performance of the contract cannot be granted to the plaintiff because of failure to comply with the statutory requirement of Sec. 16 (c) of the Specific Relief Act. The court below has observed that the amendment sought by the plaintiff seeks to introduce a fresh cause of action in the plaint which was absent in the plaint as filed originally. This is incorrect. The introduction of the plea that the plaintiff was always ready and willing to perform his part of the contract is not a part of the cause of action for a suit for specific performance. It is one of the necessary averment. In the plaint as originally filed, it was alleged that the plaintiff has been offering the defendant the price and asking him to get the sale deed registered, but the defendant continued to postpone the matter on one pretext or the other. The cause of action was stated to be the date of the agreement, namely, August 23, 1976 and all subsequent dates when the plaintiff offered to pay the price and to get the sale deed registered. So the requisite averment to constitute the cause of action were there. It is not right to say that the plaintiff was attempting to introduce a fresh cause of action by the amendment.;