A suit for Specific Performance demands compliance with various mandatory conditions, noncompliance of which, would result in dismissal of the Suit for specific performance. These mandatory conditions are in the nature of Readiness and Willingness of the Plaintiff to perform the contractual obligations, as embodied in Section 16(c) of the Specific Relief Act, 1963 [“the Act”], which the Plaintiff must prove not only up till the filing of the suit for Specific Performance but at all times, from the date of the contract and throughout the pendency of the suit1Sangita Sinha vs Bhawna Bhardwaj and Ors Civil Appeal No. 4972 of 2025. Additionally, the Plaintiff must also be circumspect of the five material questions as expounded upon by the Supreme Court in the matter of Kamal Kumar vs Premlata Joshi22019 (3) SCC 704 which are required to be gone into before granting the relief of Specific Performance. For a detailed analysis on the essential pleadings and the scope of readiness and willingness for filing a suit for specific performance, refer here.
The scope of this article is confined to the proposition viz. whether a suit for specific performance is maintainable in absence of a prayer of declaratory relief that the termination of the Agreement to sell was bad in law. In a typical case of specific performance, the Plaintiff approaches the court after the Agreement to sell has been terminated by the Defendant, praying for specific performance of the said agreement. In such a case, if the Plaintiff does not seek a declaration to the effect that the termination of the Agreement to Sell by the Defendant was bad in law, in addition to the prayer of specific performance of the said Agreement, would that prove to be fatal to the case of the Plaintiff?
In I.S. Sikandar (D) by LRs vs K. Subramani & Ors.32013 (15) SCC 27, the parties entered into an Agreement to Sell dated 25.12.1983 for sale of an immovable property in favour of the Plaintiff. However, despite various opportunities, the Plaintiff failed to pay the balance consideration which constrained the Defendants to terminate the Agreement to Sell vide legal notice dated 28.03.1985. The Plaintiff filed a suit before the Trial Court for specific performance of the Agreement to Sell dated 25.12.1983, without seeking the declaratory relief to the effect that the termination of the Agreement to Sell dated 25.12.1983 by the Defendants was bad in law. In the aforesaid facts and circumstances, the Supreme Court held that in absence of such a prayer, the suit for specific performance filed by the Plaintiff would not be maintainable.
However, subsequently, the Supreme Court in the matter of A. Kanthamani vs Nasren Ahmed42017 (4) SCC 654, refused to apply the ratio laid down I.S. Sikandar (supra) by observing that law laid down in the aforesaid judgment is confined to the facts of that case only. In Kanthamani (supra) the Plaintiff filed suit before the Trial Court for specific performance of an agreement to sell which was terminated by the Defendant vide letter dated 03.01.1990. The Suit did not contain a prayer for declaratory relief to the effect that the termination of the Agreement to sell was bad in law. The Trial Court decreed the suit for specific performance in favour of the Plaintiff. The Appeal filed by the Defendant before the High Court was also dismissed, confirming the judgment passed by the Trial Court. In appeal before the Supreme Court, the Defendant placed reliance upon I.S. Sikandar (supra) and argued that since the Plaintiff did not seek the declaratory relief, therefore the suit for specific performance would not be maintainable. However, the Supreme Court observed that the aforesaid objection with respect to the maintainability of the suit was not raised by the Defendant in the courts below and only raised for the first time in Appeal before the Supreme Court. In the aforesaid circumstances, the Supreme Court observed that the plea regarding maintainability of suit is required to be raised in the first instance in the pleading (written statement) then only such a plea can be adjudicated by the Trial Court on its merits as a preliminary issue and only thereafter a finding rendered by the Trial court on the said issue can be examined by the first and second appellate courts. Therefore, the Supreme Court dismissed the Appeal and upheld the concurrent findings of the courts below decreeing the suit for specific performance.
Can Appellate Court decide maintainability of Suit dehors the framing of such an issue by Trial Court?
The Supreme Court in Kanthamani (supra) and I.S. Sikandar (supra), are unanimous of the view that in a fact scenario where the vendor unilaterally terminates an Agreement to sell, the vendee who is seeking specific performance of such agreement ought to seek declaratory relief to the effect that the termination of the Agreement was bad in law. However, the Supreme Court in Kanthamani (supra) clarified that an issue must be framed with respect to the maintainability of the suit on such ground, before the court of first instance as it is only when a finding on the issue of maintainability is rendered by trial court that the same can be examined by the appellate courts. In other words, if the maintainability were not an issue before the trial court or the appellate court, a suit cannot be dismissed as not maintainable. It is pertinent to note that in I.S. Sikandar (supra) neither the trial court nor the appellate court had framed the issue as to the maintainability of suit in absence of prayer of declaratory relief. Despite that the Supreme Court emphatically held that a Suit for specific performance simpliciter is not maintainable in absence of a prayer for declaratory relief that termination of the Agreement to sell was bad in law.
In R. Kandasamy vs T.R.K. Saraswathy & Anr.5Civil Appeal No. 3015 of 2013, the Supreme Court was discussing various principles of specific performance when it found itself vexed with the position of law laid down in the aforesaid two cases. The Supreme Court observed that the in Kanthamani (supra) the Court was not addressed on the aspect of ‘Jurisdictional fact’ the existence or nonexistence whereof, would clothe or deprive the court of the jurisdiction to entertain the case. The Supreme Court placed reliance upon Shrishti Dhawan vs Shaw Bros6(1992) 1 SCC 534. to explain ‘Jurisdictional fact’, as follows-
“19. *** What, then, is an error in respect of jurisdictional fact? A jurisdictional fact is one on existence or non-existence of which depends assumption or refusal to assume jurisdiction by a court, tribunal or an authority. In Black’s Legal Dictionary it is explained as a fact which must exist before a court can properly assume jurisdiction of a particular case.. ***”
A ‘jurisdictional fact’ has to be discerned from the facts and circumstances of each case. For example, in a suit for specific performance, the fact that the agreement has been terminated by the Defendant becomes a ‘jurisdictional fact’. The Agreement is non-existent pursuant to the termination and if the Plaintiff files a suit for specific performance of the said Agreement without seeking a declaration to the effect that the termination of the agreement was illegal, the suit itself does not have any legs to stand on. Therefore, the Trial Court must first decide whether the ‘jurisdictional fact’ exists i.e. whether the termination of the Agreement was illegal or legal. If the Court decides that the termination was illegal, then the court can proceed to assume jurisdiction to decide whether to grant specific performance. However, if the court arrives at a finding that the termination of the agreement was legal, then the court would be denuded of the power to proceed with the trial of specific performance.
In Kandasamy (supra), the Supreme Court emphasized that it is the bounden duty of the Trial Court to frame the issue touching upon the jurisdictional fact, however, the Supreme Court clarified that the failure of the Trial Court to frame an issue as to the maintainability of the suit touching jurisdictional fact, would not curtail the power of the higher court to examine whether jurisdictional fact did exist for grant of relief of specific performance. As observed by the Supreme Court in Srishti Dhawan (supra) without deciding ‘Jurisdictional fact’ a court cannot assume jurisdiction. The judgment of Supreme Court in Kandasamy (supra), stultifies the ratio laid down in Kanthamani (supra) in which the Court found itself constrained to rule that since the issue with respect to maintainability was not framed by the Trial Court, therefore, the higher court cannot examine the said issue.
The ratio laid down in Kanthamani (supra) and Kandasamy (supra) was subsequently followed by the Supreme Court in the matter of Sangita Sinha vs Bhawna Bhardwaj and Ors7Civil Appeal No. 4972. of 2025 wherein the Plaintiff had filed a suit for specific performance without seeking a declaratory relief to the effect that the termination of the Agreement to sell was illegal. The Supreme Court drew sustenance from the ratio laid down in Kandasamy (supra) and observed that the cancellation of the Agreement to Sell by the Defendant was a ‘Jurisdictional fact’ and even though the Trial Court failed to frame an issue touching upon the jurisdictional fact, the higher court would not be denuded of the power to examine the existence of ‘Jurisdictional Fact’. Since the Plaintiff failed to seek a declaratory relief vis-à-vis the Agreement to Sell, the Court held that the suit for specific performance was not maintainable, as follows-
“26. Since in the present case, the seller had issued a letter dated 07th February, 2008 cancelling the agreement to sell prior to the institution of the suit, the same constitutes a jurisdictional fact as till the said cancellation is set aside, the respondent is not entitled to the relief of specific performance.
27. Consequently, this Court is of the opinion that absent a prayer for declaratory relief that termination/cancellation of the agreement is bad in law, a suit for specific performance is not maintainable.” (emphasis supplied)
Conclusion
The existence of a valid Agreement to sell is a sin qua non for grant of relief of specific performance. This is because an agreement, which has been cancelled, would be rendered non-existent in the eyes of law and such a non-existent agreement could not possibly be enforced before a court of law8Sangita Sinha vs Bhawna Bhardwaj and Ors. Civil Appeal No. 4972 of 2025. Therefore, it is imperative for the Plaintiff to seek a declaratory relief to the effect that the termination of the Agreement to sell was bad in law, in addition to the prayer of specific performance of the said agreement. Since the termination of the Agreement constitutes ‘jurisdictional fact’ as observed by the Supreme Court in Kandasamy (supra) and Sangita Sinha (supra), merely because the Trial Court failed to frame an issue regarding maintainability of suit touching upon the jurisdictional fact, the higher court would not be denuded of the power to examine the existence of ‘jurisdictional fact’. Assumption of jurisdiction by a particular court depends upon existence of jurisdictional fact9Shrishti Dhawan vs Shaw Bros (supra). Therefore, in a suit for specific performance of an Agreement to Sell, the absence of a prayer for declaratory relief to the effect that the termination of the Agreement to Sell was illegal, would prove to be fatal to the case of the Plaintiff.
