- (1.) Heard Sri M.K. Gupta, Advocate on behalf of defendant/appellant and Sri O.P. Rai, Advocate, on behalf of plaintiff/respondents. The instant second appeal is directed against judgment and decree dated 20.3.1999 passed by XVth Additional District Judge, Meerut, in Civil Appeal No. 96 of 1995, Rakesh Kumar and another v. Dev Kumar setting aside judgment and decree dated 1.4.1995 passed by Trial Court in Original Suit No. 267 of 1989 on Issue No. 3.
(2.) This defendant's second appeal arises from a suit of specific performance instituted by plaintiff/respondents.
(3.) Record of the case was summoned at the stage of admission itself. Written submissions have already been preferred by learned Counsels for respective parties. As agreed between parties, the instant second appeal is being decided finally at this stage on the following substantial questions of law, which are quoted below: 1. Whether plaintiff/respondents were not ready and willing to perform the part of the contract strictly in accordance with the terms of agreement and consequently the suit was rightly dismissed by the Trial Court in view of provisions of section 16(c) of Specific Relief Act? 2. Whether the plaintiffs could legally alter the terms of agreement in depositing the decretal amount in Execution Case No. 3 of 1986 and claim a set off for an amount of Rs. 23,758 in lieu of balance payment in respect of agreement to sell? 3. Whether the Trial Court was justified in refusing relief for specific performance in view of provisions of section 20 of Specific Relief Act and Lower Appellate Court erred in interfering with exercise of discretion in this regard by the Trial Court? 4. Whether in view of plaintiff/respondents themselves having asked for alternative relief for refund of earnest money with interest, which was granted by the Trial Court, there was any occasion for the Appellate Court to interfere with judgment of the Trial Court?;