The amendment to Section 16(c) of the Specific Relief Act, 1963, brought significant changes to the language concerning the plaintiff’s obligation to demonstrate readiness and willingness to perform the contract. Previously, the statute was explicit that a plaintiff "who fails to aver and prove" readiness and willingness would be barred from specific performance. However, the amendment omitted the phrase “who fails to aver and prove” and instead simply states “who fails to prove.” This subtle change has raised important legal questions about whether a plaintiff must still both plead (aver) and prove readiness and willingness, or whether proof alone suffices.
The Legal Position Post-Amendment
Despite the omission, judicial interpretation has consistently maintained that averment (pleading) remains a prerequisite to proof. The courts hold the principle that without specifically pleading facts establishing readiness and willingness in the plaint, the plaintiff cannot lead evidence to prove those facts. In other words, “averment is a condition precedent to proof.” This ensures procedural fairness by enabling the defendant to know the case they have to meet.
Recent Supreme Court and High Court Rulings
Several recent judgments, including a significant Supreme Court decision in 2024, have clarified this issue comprehensively. For example, in Janardan Das v. Durga Prasad Agarwalla and other matters decided in 2024, the Supreme Court reaffirmed that section 16(c) still mandates that readiness and willingness must be specifically averred and subsequently proved. The Court explicitly stated that failure to either aver or prove readiness and willingness results in the dismissal of the suit for specific performance.
The omission of the phrase “who fails to aver” does not dilute the requirement; averments are still judicially required to admit corresponding evidence during trial.
Why Averment is Critical
Averments serve as a formal notice to the defendant and the court about the plaintiff’s case. This procedural safeguard allows the defendant to prepare their defense accordingly. Without proper averment, introducing evidence at trial violates the principle of fair trial and natural justice.
Summary Table
| Requirement | Before Amendment | After Amendment | Judgments (2024) |
|---|---|---|---|
| Averment (pleading) | Mandatory | Mandatory (judicial view) | Must plead readiness and willingness |
| Proof (evidence) | Mandatory | Mandatory | Cannot succeed without proof |
| Can proof substitute missing averment? | No | No | Courts reject evidence without averment |
Even after the 16(c) amendment to the Specific Relief Act, the plaintiff’s obligation to plead readiness and willingness remains intact and essential. While the statutory text no longer explicitly states "to aver and prove," judicial interpretations underscore that absence of pleading bars the plaintiff from proving these facts at trial. Hence, both pleading and proof are still indispensable for seeking specific performance of a contract.
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