- (1.) D. S. Sinha, J. Heard Sri Kailash Nath Tripathi, learned counsel for the appellant and Sri Sankatha Rai, learned counsel appearing for the respondent.
(2.) THIS second appeal under Section 100 of the Code of Civil Procedure, 1908, hereinafter called the Code, is directed against the decree and judgment of the IV Addl. District & Sessions Judge, Varanasi dated 14th April, 1980, rendered in Civil Appeal No. 410 of 1978, whereby the decree and judgment dated 30th September, 1978 passed by the III Civil Judge, Varanasi dismissing the Original Suit No. 267 of 1976, instituted by the plaintiff respondent against the defendant-appellant for specific performance of the agreement to sell dated 5th February, 1976 for a consideration of Rs. 10,000 in respect of 7/16th share of the defendant-appellant in House No. 51/57 situate in Mohalla Mohammad Shaheed, Varanasi, has been reversed and the suit of the plaintiff-respondent has been decreed. Learned counsel for the appellant contends that the impugned decree and judgment of the lower appellate court decreeing the suit of the plaintiff-respondent cannot be sustained on the ground that there was total non-com pliance of the provisions of clause (c) of Section 16 of the Specific Relief Act, 1963, hereinafter called the Act, and of Rule 3 of Order VI read with Form 47 contained in Appendix-A' of the Code. Elaborating his contention, learned counsel submits that the plaintiff respondent had failed to over and prove that he had always been ready and willing to perform the essential terms of the contract of sales which were to be performed by him and Section 16 of the Act prohibits enforcement of specific performance of the contract in such a situation; that Rule 3 of Order VI of the Code mandates that the forms in Appendix 'a' when applicable, and where they are not applicable forms of the like character, as nearly as may be, shall be used for all pleadings, and the form of pleadings in plaint in respect of suits of specific performance is contained in Form No. 47 of Appendix 'a' and paragraph 3 thereof requires the plaintiff to plead that he has been and still is ready and willing specifically to perform the agreement on his part of which the defendant has had notice, but the plaintiff-respondent had failed to comply this requirement rendering his suit liable to be dismissed.
(3.) SRI Sankatha Rai, learned counsel for the plaintiff-respondent, sub mits that the question sought to be raised and canvassed by the learned counsel for the appellant is not covered by any of the substantial questions of law, namely, No. (i), (ii) and (iii) for consideration whereof the appeal was admitted by the court, and as such it cannot be permitted to be urged and canvassed to attack the impugned decree and judgment of the lower appellate court. He places reliance upon the provisions contained in Section 100 of the Code, generally, and upon sub-sections (4) and (5) thereof in particular. Reliance is also placed by him on sub-rule (2) of Rule 1 and Rule 2 of Order XLI read with Rule 1 of Order XLI1 of the Code. The substantial questions of law No. (i), (ii) and (iii) for considera tion whereof appeal was admitted are reproduced below: " (i) Whether the proceedings for declaration of the alleged share of Late Habibunnisa, the sister of the defendant appellant by the Custodian of Enemy Property was binding upon the defendant appellant who has not been served with any notice about the said proceeding by the Custodian of Enemy Property? (ii) Whether the Custodian of Enemy Property could decide the alleged share of late Habibunnissa, the sister of the appellant as enemy property without hearing the appellant who was the owner of the 7/16th portion of the disputed house including the share of her sister Late Habibunnissa? (iii) Whether the plaintiff is entitled to adjust the sale price of Rs. 800 of the alleged share of Late Habibunnissa, sister of the defendant appellant, paid to the Custodian of Enemy property in the sale consideration in spite of the admission in the partition deed that Late Habibunnissa had orally gifted her share to the appellant and also delivered possession to him?";