- (1.) PRAKASH Krishna, J. This is defendant's appeal. The plaintiff filed suit No. 364 of 1998 for specific performance of contract to sell dated 19th February, 1996 on the allegations that a sum of Rs. 20,000/-was given before the Sub Registrar at the time of registration of the agreement in question. On subsequent dates i. e. 27th January, 1997, 21st March, 1997 and 30. 6. 1997. Rs. 54,000/- was further given. The defendant failed to execute the sale deed in pursuance of the aforesaid agreement. The defence of the defendant was that the said agreement was obtained by playing fraud and the defendant wanted to give the property in question on rent and in consideration thereof a sum of Rs. 30,000/-was received by way of cash. It was further stated that the plaintiff agreed to pay Rs. 500/- per month as rent.
(2.) THE suit has been partly decreed by both the Courts below by granting relief for specific performance of the aforesaid contract, dated 19th February, 1996. THE Trial Court has believed the payment of Rs. 30,000/- as earnest money. It has not believed the further payments as state by the plaintiff. Aggrieved against the aforesaid judgment of the two Courts below the present appeal has been filed. Learned Counsel for the appellant has pressed the following questions of law to be involved in the present appeal. (1) Whether the judgment and decree passed by the Court below stands vitiated on account of non framing of most relevant issue regarding readiness and willingness. (2) Whether the plaintiff has got any cause of action for filing the suit and the plaint is liable to be rejected under Order VII Rule 11 C. P. C. (3) Whether for want of any issue on finding with regard to service of notice for eviction of sale deed, suit for specific performance can be decreed. Heard learned Counsel for the parties. Learned Counsel for the appellant in support of the appeal submitted that there is no finding of readiness and willingness on the part of the plaintiff to execute his part of the contract and it was mandatory for the Courts below to record the aforesaid finding before decreeing the suit in view of section 16 (C) of the Specific Relief Act. Reliance has been placed by him on the judgment of the Apex Court in Bal-ram Taneja and others v. Sunil Madan and another, (1999) 8 SCC 396 wherein the Apex Court has observed that in a suit for specific performance of contract it is mandatory requirement by section 16 (c) of the Specific Relief Act to plead readiness and willingness of the plaintiff to perform his part of contract. Acting under Order VIII Rule 10 of the C. P. C. the facts set out in the plaint to find out whether all the requirements specially those enacted in section 16 of the Specific Relief Act have been complied or not. The readiness and willingness of the plaintiff to perform his part of the contract is condition precedent to pass decree of the specific performance in favour of the plaintiff.
(3.) IT is not case of the defendant/ appellant that there is no such pleading in the plaint with regard to readiness and willingness of the plaintiff to perform his part of contract. What has been urged before this Court is that it was the duty of the Court to record a finding irrespective of the fact that such plea has been raised by the defendant in his pleading or not. The said argument is devoid of any substance and can not be accepted. On perusal of the copy of the written statement it is clear that no such plea was raised and put forth by the defendant in his written statement. From the record it does not appear that this issue was pressed at any stage by the defendant/appellant. There is no discussion in either of the judgments of the Courts below on this point. The plea of readiness and willingness is basically a pure question of law. IT depends upon the facts of the case. In the absence of any pleading in the written statement, the averments made by the plaintiff in the plaint remained uncontroverted. Moreover, the agreement in question is dated 19th February, 1996 the suit was filed in the year 1998 and the possession of the shop was also delivered by the defendant as per the findings recorded by both the Courts below. Therefore, the aforesaid question as posed by the learned Counsel for the appellant is not substantial question of law involved in the present appeal. No arguments were advanced on the question Nos. 2 and 3.;