S.K.Dhaon, J. - (1.) This is a defendant's appeal. It arises out of an order of remand passed by the lower appellate court in an appeal preferred by the plaintiff-respondent. In the suit the relief claimed was that a decree for the specific performance of an agreement to sell a certain property should be passed.
(2.) The plaintiff came out with the usual case that there was an agreement to sell within a certain period and during the subsistence of such an agreement the vendor sold the property in dispute to the appellant, that there was a breach of the contract on the part of the vendor and, therefore, the plaintiff was entitled to the relief claimed in the suit. The defence taken by the appellant was, inter alia, that he was a bonafide purchaser for valuable consideration without any notice of the earlier agreement to sell between the plaintiff and the vendor. The trial court dismissed the suit by recording the findings that the plaintiff had failed to prove that in pursuance of the agreement to sell he had been put in possession of the property in dispute by the vendor and the appellant was a bonafide purchaser for valuable consideration without notice. Feeling aggrieved, the plaintiff - respondent preferred an appeal which came up for hearing before the learned 5th Additional District Judge, Bareilly.
(3.) In the appeal, it appears, the appellant tried to support the decree of the trial court by raising a new plea that the plaintiff was bound to fail as he had failed to comply with the provisions contained in Section 16(c) of the Specific Relief Act, 1963, in so far as he had failed to make the necessary averments as contemplated by those provisions. To counteract this plea, the plaintiff then and there made an application seeking an amendment of the plaint. By the amendment the plaintiff tried to fill in the lacuna and insert the necessary averments as required by the provisions contained in Section 16(c). This amendment was allowed and after doing so the learned lower appellate court remanded the suit for being retired by the trial court.;