Skip to main content

Contracts - “Readiness and Willingness” of parties to perform obligation and 'Perverse' judgments explained

In Ved Prakash Vs. Krishan Kumar Gupta, a suit was filed by the Plaintiff for specific performance of agreement, declaration and also sought permanent prohibitory injunction.

The learned trial Court after recording the evidence and evaluating the same dismissed the suit filed by the plaintiffs. The appeal preferred against the judgment and decree passed by the learned trial Court, came to be dismissed by the learned first appellate Court constraining the plaintiffs to file the instant appeal before before the Himachal Pradesh High Court.

It is vehemently argued by learned counsel for the appellants that the findings recorded by the learned Courts below are perverse and, therefore, require to be set aside.

The Hon'ble court while dismissing the appeal said that the findings recorded by the learned Courts below regarding “readiness and willingness” of the parties to perform their part of obligation are pure findings of fact and cannot be interfered with by this Court in exercise of its powers under Section 100 of the Code of Civil. No question of law much less substantial question of law arises for consideration in this appeal.

Held:

1) As per Section 16(c) of the Specific Relief Act, “Readiness and willingness” cannot be treated as a straightjacket formula and have to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned.

It is settled principle of law that Section 16(c) of the Specific Relief Act provides that the specific performance of contract would not be enforced in favour of a person, who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than the terms the performance of which has been prevented or waived by the other side. Language of Section 16(c) clearly stipulates that the “readiness and willingness” has to be in spirit and substance and not in letter and form. The continuous “readiness and willingness” on the part of the plaintiff is a condition precedent to grant the relief of specific performance. Right from the date of execution till the date of decree, he must prove that he is ready and willing and has always been willing to perform his part of contract. The view that the averments “plaintiff is and has been ready and willing to perform his part of contract” stems out of the principle that the plaint must show the plaintiff’s intention to treat the contract as subsisting.

2) the appellate Court continues to be a final court of fact and law and second appeal to the High Court lies only where there is a substantial question of law. Meaning thereby, the pure findings of fact remain immune from challenge before this Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one.

Proper Test for determining whether a question of law raised in the case is substantial

The proper test for determining whether a question of law raised in the case is substantial would be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views.

Referred Cases

Guran Ditta & Anr. Vs. T. Ram Ditta, AIR 1928 Privy Council 172
Sir Chunilal V. Mehta & Sons Ltd. Vs. The Century Spinning and Manufacuring Co., Ltd., (1962) Supp.3
Rimmalapudi Subba Rao Vs. Noony Veeraju, ILR 1952 Madras 264
A.K. Lakshmipathy (D) & Ors. v. Rai Saheb Pannalal H.Lahoti Charitable Trust & Ors., AIR 2010
Janak Dulari Devi & Anr. v. Kapildeo Rai & Anr., AIR 2011
Santosh Hazari v. Purushottam Tiwari (deceased) by LRs (2001)

3) What is a ‘perverse’ order ?
Any order made in conscious violation of pleading and law is a perverse order. A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. `Perverse’ defined as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct etc.

The findings of fact of the first appellate court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect.



Comments

Most viewed this month

How to know if a temple/mandir is Public or Private?

In Shri Ram Mandir Indore v. State of Madhya Pradesh, the appellant had contended before the Supreme Court that the Ram Mandir in question is a private temple established by predecessor Gurus and that the properties had been given to the suit temple as Inam and Ram Das was not a mere pujari but the Mahant of the said temple entitled to manage and administer the temple and the suit properties. The appeal was against the judgment of the Madhya Pradesh High Court which had declared the temple as public and the suit property vested in the Deity; and Ram Das and then Bajrang Das are only pujaris and not Mahant-Manager of the temple. The Supreme Court agreeing with the High Court noted the following points :- 1) In 2013, Madhya Pradesh Government published a Directory containing names of all public temples in District Ujjain updating till 31.12.2012, wherein the said temple has been shown as a public temple and Bajrang Das and Ram Das are only shown to be the pujaris. 2)...

Loss of earning capacity, and not percentage of disability, must decide compensation, says HC

While computing compensation claims of accident victims, the victim's loss of earning capacity shall outweigh the percentage/extent of his disability, the Madras high court has felt. Justice R Mahadevan, enhancing the compensation payable to an injured driver by Rs 2 lakh, said: "In cases for compensation, it is not the disability, which is partial or total, alone that matters, it is the loss in earning capacity as a result of accident that is to be considered." R Murali, driver of a mixed concrete vehicle, met with an accident in January 2009 and suffered injuries in hip, right leg and ankle. He claimed loss of 100% earning capacity and sought appropriate compensation along with 12% interest rate. However, as the disability certificate issued by a doctor pegged the percentage of his disability at 60%, the deputy commissioner of labour-II, awarded Rs 3.12 lakh as compensation, by fixing the monthly income at Rs 4,000. Aggrieved by the poor package, Murali filed the...

The recovery of vehicles by the financier not an offence - SC

Special Leave Petition (Crl.) No. 8907  of 2009 Anup Sarmah (Petitioner) Vs Bhola Nath Sharma & Ors.(Respondents) The petitioner submitted that  respondents-financer had forcibly taken away the vehicle financed by them and  illegally deprived the petitioner from its lawful possession  and  thus,  committed  a crime. The complaint filed by the petitioner had been  entertained  by  the Judicial Magistrate (Ist Class), Gauhati (Assam) in Complaint Case  No.  608 of 2009, even directing the interim custody of the vehicle (Maruti  Zen)  be given to the petitioner vide order dated  17.3.2009.  The respondent on approaching the Guwahati High  Court against this order, the hon'ble court squashed the criminal  proceedings  pending   before  the  learned Magistrate. After hearing both sides, the Hon'ble Supreme Court decided on 30th...