V. N. Khare, J. - (1.) THIS second appeal arises out of suit filed by plaintiff-appellants for specific performance of agreement to sell the shop described at the foot of the plaint.
(2.) IN short, the plaint allegations were that the defendant agreed to sell the shop in dispute to the plaintiff by an agreement dated 21-8-1966 for Rs. 2100/-. The plaintiff paid Rs. 100/- to the defendant as earnest money and it was agreed that the plaintiff would get the sale deed executed after one year after paying the balance to the defendant. The plaintiff asked defendant several times to execute the sale deed but the defendant avoided it. The defendant contested the suit. The defence of the defendant was that on 19-12-1964 defendant purchased the shop in dispute from the plaintiff and got an agreement executed the same day. In that agreement it was stipulated that the plaintiff would pay back Rs. 1700/- to the defendant within two years and will get the sale-deed executed. Plaintiff could not get the sale-deed executed within the stipulated period. The plaintiff waived their right to get the sale-deed executed and they are not entitled to sue. The learned Munsif found that in fact there was an agreement between the parties but since the plaintiff has not pleaded in the plaint that she was always willing and ready to perform her part of contract, the suit cannot be decreed, with the result the suit for specific performance of agreement was dismissed.
(3.) THE plaintiff-appellant filed an appeal before the learned District Judge, Bijnor which came up for hearing before the learned Additional Civil Judge, Bijnor. In the appeal the plaintiff-appellant moved an application for amendment of the plaint to the effect that she was always willing and ready to perform her part of contract. THE learned Additional Civil Judge allowed the amendment of the plaint as prayed for and remanded the case to the trial court for decision. THE defendant-respondent filed a First Appeal From Order in this Court against the judgment of the learned Additional Civil Judge. THE said F.A.F.Q. was numbered as F.A.F.O. No. 200 of 1972. Since there was interim order in the First Appeal From Order, the proceedings before the trial court were stayed. Ultimately the F.A.F.O. was allowed by this Court on 20-7-1976 and it was held :- " Moreover, there was no indication in the amendment application that the plaintiffs were misled by any one in not leading evidence on the question that they were always ready and willing to perform their part of contract. THEre was no justification in granting the amendment and allowing further evidence by directing that an additional issue shall be framed and then the suit will be decided in accordance with law. THE lower appellate court should have disposed of the appeal on merits itself instead of remanding the same. " This judgment became final between the parties. Since there was no allegation in the plaint about the willingness and readiness on the part of the plaintiff to perform her part of contract the appellate court dismissed the appeal of the plaintiff-appellants on 24-2-1977. Learned counsel for the appellant contended that the plaintiff appellant having approached the defendant for executing the sale deed is sufficient to indicate the plaintiff's willingness and readiness to perform her part of the agreement and the view taken by the trial court as well as appellate court is erroneous. The contention has no foree and must be rejected. Section 16 of Specific Relief Act provides that a specific performance of contract cannot be enforced in favour of a person 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. In the present case there is no averment in the plaint that the plaintiff has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by her. Mere sending a notice to the defendant for executing the agreement in pursuance of the agreement cannot amount to averment in the plaint that the plaintiff was always ready and willing to perform her part of contract. In suit for specific performance the plaintiff must aver in the plaint as well and show his readiness and willingness continuously from the date of agreement till the date of hearing of the suit. If he failed to do so the plaintiff's claim for specific performance would fail. In fact, it is mandatory that not only it should be averred in the plaint, but also should be stated in court during the trial. Since plaintiff did not plead nor shown during the trial of suit that she was always willing and ready to perform her part of contract, suit and appeal were rightly dismissed.;