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.
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.
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