ETWARI DEVI Vs. PARVATI DEVI
LAWS(SC)-2006-1-41
SUPREME COURT OF INDIA (FROM: PATNA)
Decided on January 17,2006

MOST.ETWARI DEVI Appellant
VERSUS
MOST.PARVATI DEVI Respondents


Cited Judgements :-

BINA RANI SARKAR VS. HANSI RANI GHOSH [LAWS(CAL)-2013-3-48] [REFERRED TO]
RAJENDER SINGH VS. BHOLA SINGH [LAWS(P&H)-2017-3-128] [REFERRED TO]
JAI PRAKASH AGARWAL VS. BRAHMA KUMAR JUTSI & ANR [LAWS(MPH)-2018-5-142] [REFERRED TO]
PARVATHY VS. RANJIT [LAWS(MAD)-2023-2-201] [REFERRED TO]


JUDGEMENT

Arijit Pasayat, J. - (1.)Challenge in this appeal is the judgment of the learned Single Judge of the Patna High Court holding that the appellants were not entitled to a decree for specific performance of contract. In a second appeal filed by the respondent, the judgment and decree of the trial court as affirmed by the first Appellate Court were reversed and suit of the plaintiff was dismissed. Originally the suit was filed by Nunu Mahto, husband of appellant No.1, father of appellant No. 5. After death of Nunu Mahto his legal heirs were substituted. The High Court proceeded on the basis that the plaintiff had not proved that he was ready and willing to perform his part of the contract. There was neither pleading nor evidence was tendered in terms of requirement of Section 16(c) of the Specific Relief Act, 1963 (in short the Act). Learned counsel for the appellants highlighted as to how the judgment of the High Court suffers from various infirmities both factually and on principle of law. None appears for the respondent though she was represented by a counsel who did not appear on several dates of hearing and also is not present today.
(2.)The second appeal was admitted by the High Court and following questions were framed which according to the High Court were substantial questions of law as required to be framed under Section 100 of the Code of Civil Procedure, 1908 (in short Code).
(i) Whether the finding that the plaintiffs were always ready and willing to perform their part of contract is vitiated on account of absence of evidence on the point

(ii) Whether the decree passed by the lower appellate court is maintainable in absence of the evidence on the point referred to above

(3.)The High Court recorded findings to the effect that there were no specific averments in the pleadings that the plaintiff was ready and willing to perform his part of the contract and also no evidence was adduced in this regard. As rightly pointed out by learned counsel for the appellants, the findings are contrary to the materials on record. As noted by the first Appellate Court in various paragraphs of the plaint, more particularly, paragraphs 18 and 22 specific averments regarding readiness and willingness of the plaintiff to perform his part of the contract have been made. Additionally, the plaintiff Nunu Mahto who was examined as PW-9 has categorically stated that he had gone to tender the money, that is the consideration, to the defendant who was not agreeable to return the sale deeds and therefore the only course left open to the plaintiff was to file a suit.


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