Drafting of Plaint — Specific Performance

A suit for specific performance is the most demanding civil pleading an aspirant will draft, because the relief it seeks — compelling the defendant to actually perform the contract rather than pay damages — rests on statutory pre-conditions that must appear on the face of the plaint itself. The Specific Relief Act, 1963 (as recast by the 2018 Amendment) supplies the substantive scaffolding, the Code of Civil Procedure, 1908 supplies the form, and a long line of Supreme Court authority dictates exactly what must be averred and what may be fatal if omitted. This chapter shows how to assemble that plaint clause by clause — from cause-title to verification — so that no demurrer, rejection under Order VII Rule 11 or appellate reversal lies in wait. Read it alongside the Plaint & Written Statement Drafting hub.

Why the Specific-Performance Plaint Is Different

Most civil plaints ask the court for money or a declaration; a plaint for specific performance asks the court to step into the contract and force the recalcitrant party to convey the property, execute the document or do the thing he promised. Because the relief is equitable and intrusive, the legislature has hedged it with conditions that ordinary money suits do not carry. The draftsman must therefore think simultaneously as a contract lawyer (is the contract one the court will specifically enforce?), as a procedural lawyer (does the plaint satisfy Order VI and Order VII of the Code of Civil Procedure, 1908?) and as an equity lawyer (has the plaintiff come with clean hands, ready and willing to perform?).

The foundational shift came with the Specific Relief (Amendment) Act, 2018, effective 1 August 2018, which substituted Section 10. Before the amendment the section read that specific performance "may, in the discretion of the court, be enforced"; after substitution it reads that specific performance of a contract "shall be enforced by the court subject to the provisions of sub-section (2) of section 11, section 14 and section 16." The relief moved from discretionary to a rule-based entitlement. Yet, as the Supreme Court reminded litigants in Sughar Singh v. Hari Singh (Dead) through LRs (2021), even under the older discretionary regime the discretion had to be exercised judicially and could not be used to punish a plaintiff who had established the agreement and his own readiness. The change in Section 10 does not dilute the pleading discipline; it sharpens it, because the plaintiff now claims an entitlement rather than begging an indulgence. For the broader drafting architecture see the chapter on drafting of plaint components.

The Statutory Anchors: SRA, CPC and Limitation

A competent specific-performance plaint sits on four statutory pillars. First, the Specific Relief Act, 1963: Section 10 (when specific performance shall be enforced), Section 11 (contracts connected with trusts), Sections 14 and 14A (contracts not specifically enforceable and the new power to engage experts), Section 16 (personal bars to relief, including the readiness-and-willingness clause), Section 12 (specific performance of part of a contract), Section 20 (substituted performance, post-2018), Section 21 (compensation in addition to or in substitution of performance) and Section 22 (power to grant possession, partition and other reliefs). Second, the Code of Civil Procedure, 1908: Order VI Rules 2, 4, 14 and 15 on pleadings generally, and Order VII Rules 1 to 7 on the contents of a plaint. Third, the Limitation Act, 1963, particularly Article 54 of the Schedule. Fourth, the local Court-Fees and Suits Valuation legislation that fixes the fee and pecuniary jurisdiction.

The interplay matters because an averment may satisfy one statute and breach another. A plaint that perfectly pleads readiness and willingness but values the suit on the agreement's stated consideration when the fee statute demands valuation on market value will still be returned for deficient court fee. The grounding for all of this is set out in the statutory basis chapter; here we apply those provisions specifically to the enforcement plaint.

Pleading the Agreement and the Cause of Action

The first substantive body of the plaint must set out the agreement with precision: the date of the agreement to sell, the parties to it, the identity and full description of the suit property, the agreed consideration, the amount of earnest money or advance paid (with mode and date of payment), and the time, if any, fixed for completion. Order VI Rule 2 of the Code of Civil Procedure requires a statement in concise form of the material facts on which the party relies, and in a specific-performance suit the contract is the central material fact. Where the agreement is in writing, its execution, attestation and the plaintiff's possession of the original (or an explanation for its absence) should be pleaded.

The cause of action is then built from the agreement plus the breach: the plaintiff's performance or tender of his obligations, the demand for execution of the sale deed, the defendant's refusal or evasion, and the date of that refusal. Every fact that the plaintiff must prove to obtain the decree is a material fact and must find a place here — this is the heart of the statement of facts constituting the cause of action. A plaint that pleads the agreement but is silent on when and how the defendant repudiated it leaves the limitation computation and the very accrual of the right unanchored.

Readiness and Willingness: The Indispensable Averment

No clause in a specific-performance plaint carries more weight than the averment of readiness and willingness. Section 16(c) of the Specific Relief Act, 1963 bars relief to a plaintiff "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 terms the performance of which has been prevented or waived by the defendant." The Explanation to the clause clarifies two practical points: where a contract involves payment of money, the plaintiff need not actually tender the money to the defendant or deposit it in court except when so directed; and the plaintiff must prove performance or readiness and willingness "according to its true construction."

The classic exposition is Syed Dastagir v. T.R. Gopalakrishna Setty (1999) 6 SCC 337, where the Supreme Court held that compliance with the readiness-and-willingness requirement must be judged "in spirit and substance and not in letter and form," and that to insist on the mechanical reproduction of statutory words is to prefer form over essence. The plaintiff need not parrot the section so long as the plaint, read as a whole, conveys that he was and remains ready and willing. That said, the safe and standard practice is to plead the averment expressly and continuously — that the plaintiff has always been and continues to be ready and willing to perform his part of the contract, including payment of the balance consideration, from the date of the agreement up to the filing of the suit. The continuity of the averment is itself substantive: in Bal Krishna v. Bhagwan Das (Dead) by LRs (2008) 12 SCC 145, the Supreme Court refused relief because the plaintiffs failed to aver and prove continuous readiness and willingness throughout. Kamal Kumar v. Premlata Joshi (2019) 3 SCC 704 lists readiness and willingness as the most important of the material questions a court must decide in such a suit.

A note on the 2018 amendment: although academic commentary observes that the recasting of the regime has softened the older insistence on a ritual recital, the prudent draftsman should treat the express averment as mandatory. Proof of readiness and willingness remains a statutory pre-condition under Section 16(c), and an averment that exists on the record cannot later be said to be missing.

Screening the Contract: What Cannot Be Enforced

Before drafting, the lawyer must confirm the contract is one the court will specifically enforce, because pleading a non-enforceable contract invites rejection. Section 14 of the Specific Relief Act, as substituted in 2018, lists contracts not specifically enforceable: a contract whose performance involves the continuous duty of supervision the court cannot supervise; a contract so dependent on the personal qualifications of the parties that the court cannot enforce its material terms; a contract of a determinable nature; and — significantly altered by the amendment — a contract for which a party has obtained substituted performance under Section 20.

The determinable-contract bar is a common trap. A contract that either party may put an end to at will is determinable and not specifically enforceable; courts will not compel performance of something the defendant could lawfully terminate the next day. The draftsman must read the agreement's termination and forfeiture clauses with care. Where the agreement has in fact been terminated, the plaintiff cannot simply sue for performance: I.S. Sikandar (Dead) by LRs v. K. Subramani (2013) 15 SCC 27 held that where the agreement to sell had been terminated, a suit for specific performance was not maintainable in the absence of a prayer for a declaration that the termination was bad in law. The relief sought must therefore be matched to the legal status of the contract — a point developed further in the section on the prayer clause below.

Part Performance and Section 12

Sometimes the defendant cannot perform the whole contract — perhaps he can convey only part of the property because the rest belongs to a third party, or part of the subject-matter has been lost. Section 12 of the Specific Relief Act governs specific performance of part of a contract. The general rule in Section 12(1) is that the court shall not direct performance of a part. The exceptions in sub-sections (2) and (3) allow part performance where the unperformed part is small in proportion to the whole and admits of compensation in money, or where it is considerable, provided the plaintiff relinquishes all claim to performance of the remaining part and all right to compensation for the deficiency.

For the draftsman the lesson is that where part performance is contemplated, the plaint must contain an express averment relinquishing the claim to the remaining part and to compensation, as Section 12(3) requires. The Supreme Court has clarified that this relinquishment may be made at any stage of the litigation, including the appellate stage, but the safer course is to plead it in the plaint itself so the defendant is on notice and the relief is squarely framed. Pleading part performance without the relinquishment averment leaves the relief structurally incomplete.

Framing the Prayer Clause

The prayer is where careless drafting most often defeats an otherwise sound suit. The primary prayer is for a decree of specific performance directing the defendant to execute and register the sale deed (or other instrument) in respect of the suit property on receipt of the balance consideration, within a time the court may fix. Because a decree of specific performance simpliciter does not always carry possession, Section 22 of the Specific Relief Act permits the plaintiff to claim, in the same suit, possession or partition and separate possession, in addition to specific performance.

The leading authority is Babu Lal v. Hazari Lal Kishori Lal (1982) 1 SCC 525, which held that Section 22 is designed to avoid multiplicity of proceedings and that the plaintiff may claim possession in the very suit for specific performance, even though strictly the right to possession accrues only when the suit is decreed. Section 22(2) provides that no relief of possession or partition shall be granted unless it has been specifically claimed, but the proviso allows the plaint to be amended to include such a claim at any stage on just terms. The disciplined draftsman therefore always pleads the possession relief expressly. To this should be added, where appropriate, a prayer in the alternative or in addition for compensation under Section 21 — and crucially, Section 21(4) provides that no compensation shall be awarded unless the plaintiff has claimed it in the plaint, though the court may permit an amendment. The Supreme Court has held that compensation in lieu of specific performance cannot be granted unless specifically claimed in the plaint. The mechanics of framing reliefs draw on the general principles in drafting of plaint components.

Parties, Cause-Title and Joinder

The cause-title and array of parties demand particular attention in a specific-performance suit because the contract may have created interests in persons not party to the original agreement. The vendor and the plaintiff-purchaser are obvious parties. But where the vendor has, after the agreement, transferred the property to a third party, that subsequent transferee is a necessary party: a decree for specific performance binds a transferee from the defendant who takes with notice under Section 19(b) of the Specific Relief Act, and relief cannot be effectively granted in his absence. Where the property is jointly owned, co-owners whose shares are to be partitioned must be joined.

The description of each party must comply with Order VII Rule 1(b) and (c) of the Code of Civil Procedure, which require the name, description and place of residence of plaintiff and defendant, and a statement where any party is a minor or of unsound mind. Defective description or non-joinder of a necessary party can lead to the suit failing for want of an effective decree. The conventions for the cause-title are treated in detail in the chapter on cause-title, court, suit number and parties, and the rules for naming and describing parties in particulars: names, descriptions and addresses.

Valuation, Court Fees and Jurisdiction

A specific-performance plaint must state the value of the subject-matter both for the purpose of court fees and for pecuniary jurisdiction, as required by Order VII Rule 1(i) of the Code of Civil Procedure. For a suit to enforce an agreement to sell, court fee is generally payable ad valorem on the amount of the consideration for the sale as set out in the agreement, under the relevant clause of the Court-Fees Act (Section 7(x)(a) in the principal Act and its State analogues). Where the plaintiff also seeks possession under Section 22, or a declaration that a termination is invalid, separate fee on those reliefs may be attracted depending on the State statute.

The valuation for court fees and for jurisdiction must ordinarily be consistent, and the valuation drives the choice of court before which the suit is instituted. An undervalued plaint risks return under Order VII Rule 10 or rejection under Order VII Rule 11(b) and (c) for insufficient stamp not made good. Because court-fee provisions are State-specific, the draftsman must check the local Act and the High Court rules on valuation before fixing the figure; the consideration recited in the agreement is the usual but not invariable measure.

Limitation: Article 54 and the Pleaded Date

Article 54 of the Schedule to the Limitation Act, 1963 prescribes three years for a suit for specific performance of a contract, running from "the date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused." The two limbs are mutually exclusive: where the agreement fixes a date for performance, time runs from that date and the second limb has no application. The Supreme Court has held that the "date fixed for performance" must be a definite date ascertainable from the calendar, following the line of authority traceable to Ahmmadsahb Abdul Mila v. Bibijan.

This makes the limitation pleading a drafting decision, not an afterthought. If the agreement fixes a completion date, the plaint must plead it and explain how the suit, filed within three years of that date, is in time. If no date is fixed, the plaint must plead the date on which the plaintiff received notice of the defendant's refusal — typically the reply to a notice calling for execution of the sale deed. A plaint that recites a fixed date for performance but computes limitation from a later refusal mis-states the law and exposes the suit to dismissal as time-barred. Order VII Rule 6 requires the plaint to show the ground of exemption where the suit is instituted after the period of limitation, so any reliance on acknowledgment or extension must be expressly pleaded.

A Working Checklist and Verification

A specific-performance plaint may be audited against a short checklist before signature. Does the cause-title correctly name the court and array all necessary parties, including subsequent transferees with notice? Does the body plead the agreement with its date, consideration, earnest money and the time fixed for performance? Is there a clear, continuous averment of readiness and willingness satisfying Section 16(c)? Is the contract screened against the Section 14 bars, and where it has been terminated, is a declaratory relief prayed for as I.S. Sikandar requires? Where part performance is sought, is the Section 12(3) relinquishment pleaded? Does the prayer expressly claim possession under Section 22 and, if needed, compensation under Section 21? Is the suit valued correctly for court fee and jurisdiction, and is limitation under Article 54 pleaded with the correct trigger date?

The plaint must then be signed by the party and his pleader under Order VI Rule 14 and verified under Order VI Rule 15, the verification specifying which paragraphs are true to knowledge and which to information and belief. Documents relied on — chiefly the agreement to sell, the receipt for earnest money and the exchange of notices — must be listed and filed under Order VII Rules 14 and 18. A plaint built to this discipline answers the statutory pre-conditions on its face and gives the defendant nothing to attack under Order VII Rule 11. For the foundational concepts the introduction chapter remains the best starting point.

Common Drafting Pitfalls

Several recurring errors defeat specific-performance suits at the pleading stage. The first is the omission or weak pleading of readiness and willingness; even after Syed Dastagir permits substance over form, leaving the averment to inference is a needless risk when an express, continuous plea costs nothing. The second is suing on a terminated contract without seeking a declaration to set aside the termination, the very flaw fatal in I.S. Sikandar. The third is pleading the agreement but not the breach and its date, which unmoors both the cause of action and the Article 54 limitation computation.

The fourth is failing to claim possession under Section 22 where the defendant holds the property, forcing a second round of litigation or a belated amendment. The fifth is omitting a compensation prayer where money relief may be needed in substitution, given Section 21(4)'s bar on awarding uncliamed compensation. The sixth is undervaluation and consequent deficient court fee. The seventh is non-joinder of a subsequent transferee with notice, against whom the decree must run under Section 19(b). Each of these is avoidable by a draftsman who treats the plaint as a checklist of statutory pre-conditions rather than a narrative. The disciplined application of the Specific Relief Act conditions to the Code of Civil Procedure form is precisely what separates a plaint that survives scrutiny from one that is rejected on demurrer.