- (1.) N. L. Ganguly, J. This civil revision by the defendant revisionist is directed against an order dated 11-8-94 directing that the defendant shall lead the evidence first in respect to the issue Nos. 1 to 8.
(2.) SRI V. K. Nagaich filed his caveat in the civil revision and SRI Navin Sinha put in appearance on behalf of SRI Nagaich. It has been jointly requested by the counsel for both the parties that this revision may be finally disposed of at this admission stage without summoning the record of the courts below or passing formal order for admission. The caveator has not filed any counter affidavit or any other document and stated that he does not propose to file any counter affidavit and stated to argue the case, on the basis of the documents filed as annexures with the stay application. A perusal of the plaint of the original suit shows that the suit for specific performance of contract dated 21-10-83 was filed by the plaintiff against the defendant and in the alternative prayed for a decree of Rs. 1,01,250 as compensation and earnest money to be paid to the plaintiffs by the defen dants. The copy of the written statement is Annexure 2. In the additional pleas, it has been stated that the land agreed to be sold by the defendant No. 1 to the plaintiffs through the agreement dated 21-10-83 was declared surplus with other land vide judgment and order dated 3-6-77 of the Joint Director/competent Authority, Bareilly in Urban Land Ceiling Case No. 400/ 106/76, State of U. P. v. Smt. Malka Parvej, hence the agreement to sell is void abinitio and is not enforceable document and the decree for specific performance or any other relief cannot be passed by the court. The defendants in other paragraph submitted that the advance money of Rs. 20,000 paid by the plaintiff to the defendant No. 1 in lieu of agreement has been adjusted as per particulars given below. The details are stated in the written statement.
(3.) THE defendants in the written Mo. 3 to 14 of the plaint. THE following below: (1) Whether the land in suit has been declared surplus by Joint Director Urban Ceiling vide order dated 3-6-1977 in Case No. 400 of 1976-State v. Smt. Malka Parvej, Shamsara Begum of vested in State ? (2) Whether the agreement dated 21-10-83 is void in view of above ? (3) Whether the plaintiff is entitled to sale-deed on the basis of agree ment dated 21-10-83. (4) Whether the suit is time-barred ? (5) Whether the suit is barred by principles of estoppel and acquies cence? (6) Whether the suit is barred by the provisions of Sections 34, 48 and 41 of Specific Relief Act? (7) Whether the suit is bad for mis-joinder of defendant No. 2? (8) Whether the suit is barred by Act 38 of 1976 and Sections 10, 26 and 42? (9) To what relief. (10) Whether the plaintiff is entitled to compensation? In the court below in the application of the plaintiffs-respondents, it was stated that burden of proof for issue Nos. 1 to 8 lies on the defendants and issue Nos. 9 and 10 relates to relief and compensation matter. As such, it was requested by the plaintiff that the defendants-revisionists be directed to lend evidence on the said issues 1 to 8 and opportunity be given to the plaintiff for filing evidence in rebuttal, the court below allowed the application of the plaintiff in spite of the objection of the revisionists. The learned counsel for the revisionists placed amended provision of Order XIV, Rule 2, C. P. C. "court to pronounce judgment on all issues: (i) Notwithstanding that a case may be disposed of on a preli minary issue, the court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. (ii) Where issues both of law of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to - (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until attear that issue has been determined, and may deal with the suit in accordance with the decision on that issue. " It has been argued that initial burden of proof in a suit for specific performance or any other suit is generally on the plaintiff who claims the relief, specially in the case of specific performance of agreement, it has to be shown by the plaintiff that h bad been ready to perform his part of the agreement, as required in Section 16 (1) (c) of the Specific Relief Act. It has been shown that in the written statement, the defendants-revisionists denied the pleading of the plaintiff about the readiness and willingness to get the sale-deed execut ed. The learned counsel for the revisionist cited two decisions AIR 1981 All 330, Suraj Singh and another v. Sohan Singh and anothar, and AIR 1978 All 463 (DB), Mahmood Khan and another v. Ayub Khan and others, to substan tiate his agreement that the initial burden is on the plaintiff to prove the willingness and readiness of his part, in accordance with the provisions of Section 16;