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Judgment
Ratnam, J.—The relief prayed for by the petitioner in the suit is one of specific performance of an oral agreement for reconveyance of the
properly entered into on 26.1.1978 and 1.4.1982. Admittedly, in the plaint, the petitioner did not aver his readiness and willingness to perform his
part of the contract and under S. 16(c) of the Specific Relief Act, under those circumstances, specific performance of a contract cannot be
enforced in favour of the petitioner. It is also not in dispute that the petitioner filed an application seeking an amendment of the plaint to include an
averment relating to readiness and willingness; but that application was dismissed and this dismissal was affirmed by this Court as well as the
Supreme Court. In other words, the attempt made by the petitioner to cure a formal defect had left the defect more formal than what it had been to
begin with. In the absence, therefore, of an averment in the plaint about the willingness of the petitioner to perform the terms of the contract or even
an averment to the effect that he has been ready and wiling to perform and terms of the contract, the suit has necessarily to fail owing to this defect,
which as pointed out earlier, really had later be come more formal than when the institution of the Proceedings started. The court below has
embarked upon a consideration of the later suit being out of time, if the present suit is permitted to be withdrawn on the ground of a formal defect.
That however, does not arise at this stage. When once the attempt of the petitioner who sought an amendment of the plaint had failed, in view of S.
16(c) of the Specific Relief Act, the suit has necessarily to fail owing to the formal defect in the plaint of the absence of an averment of readiness
and willingness and that would certainly justify the petitioner to seek a withdrawal of the suit already instituted with liberty to institute another suit on
the same cause of action. The civil revision petition is allowed and the order of the court below is, therefore, set aside. There will be, however, no
order as to costs.