CHANDRADEEP YADAV Vs. RAM SARAN PRASAD

JUDGEMENT

(1.) THE defendant is the appellant. He has filed this appeal against the judgment and decree dated 25 th July 1990 passed by the

(2.) ND Additional District Judge, Aurangabad in Title Appeal No. 14 of 1986/ 1 of 1990 confirming the judgment and decree dated 28.2.1986 passed by 2nd Additional Sub Judge, Aurangabad in Title Suit No. 115 of 1982/ 20 of 1985. 2. The plaintiff respondent filed aforesaid title suit praying for specific performance of contract i.e. the plaintiff prayed that the defendant be directed to perform the ,,Chit Badlain of the registered sale deed dated 16.4.1980 which was executed by the defendant in favour of the plaintiff with respect to the suit property for a consideration of Rs.6000/- after taking balance consideration amount. Alternatively, plaintiff also prayed that if the defendant has withdrawn the original sale deed from the registry office he be directed to handover the same to the plaintiff after payment of the balance consideration amount and further the possession of the suit land be delivered to the plaintiff.

(3.) THE learned counsel for the appellant submitted that both the courts below concurrently recorded a finding that the plaintiff respondent was not ready to perform his part of the contract because of want of money but because has filed the suit he is still ready to perform his part of the contract. According to the learned counsel for getting decree of the specific performance of contract it is essential to state and prove that the plaintiff was always ready and willing to perform his part of the contract. Mere averment in the plaint is not sufficient to decree the suit for specific performance but the statement must be proved by convincing evidence either oral or documentary. Admittedly, in the present case, on consideration of the evidences both the courts below held that the plaintiff had no money and, therefore, inspite of repeated demand made by the appellant and inspite of notice by the defendant to the plaintiff to pay the balance consideration amount he did not pay and moreover the suit has been filed after two years although the parties had agreed that within 15 days the balance consideration amount will be paid by the plaintiff to the appellant. In view of the above facts when there is clear finding of both the courts below that the plaintiff had no money in such circumstances there was no question of granting equitable relief of specific performance of contract arises. As stated above nobody appears on behalf of the respondent.