- (1.) SUNIL Ambwani, J. Heard Shri R. K. Saxena assisted by Shri M. A. Siddiqui for appellant and Shri M. A. Quadeer for respondents.
(2.) THE plaintiff-appellant filed OS No. 165 of 1976 for specific performance of agreement dated 6-4-1967 and in alternative for re-fund of the earnest money. THE suit was decreed by the trial Court on 8-5-1974. THE Civil Appeal No. 277 of 1974 was allowed on 16-7-1980 and suit was decreed for return of earnest money of Rs. 950/- out of total sale consideration of Rs. 1400/- with 6% interest. In the plaint presented on 2-4-1970 the plaintiff alleged that during the pendency of OS No. 253 of 1963 for partition the defendant agreed on 6-4-1967, to sell a portion of the house for Rs. 1400/- claimed by her in suit. The plaintiff paid Rs. 250/- in advance and further paid Rs. 700/- on 14-8-1969 for which a receipt of Rs. 950/- was given by the defendant leaving a balance payment of Rs. 450/- for execution of sale-deed. In para 6 of the plaint it was stated that the partition suit was decided and possession was given to the defendant on 12-11-1969. Thereafter whenever the plaintiff made requests for execution of the sale-deeds. The defendant avoided to to talk on the matter. A registered notice was sent to her on 9-3-1970 fixing 26-3-1970 for execution of the sale-deed. Before the date fixed for execution of the sale-deed, a reply was given with the false statement denying the execution of the agreement, giving rise to the necessity of filing of the suit. In para 7, it was stated that cause of action to file the suit arose on the execution of agreement on 6-4-1967 and thereafter on 11-3-1970 when the defendant refused to execute the sale-deed. In the statement recorded on 28-2-1974 the plaintiff Mohd. Yaqoob (PW-2) stated in para 2 that he was always ready and willing to comply with the conditions of agreement; to pay the balance sale consideration and to get the sale-deed registered. In the written statement the defendant denied the execution of the agreement. The trial Court found the agreement to be proved. The trial Court did not frame any issue as to whether necessary facts for readiness and willingness to perform the part of the contract required in Section 16 (c) of the Specific Relief Act 1963, was averred in the plaint. Only two issues were framed (1) whether defendant entered into an agreement to sell the house of suit on 6-5-1967; and (2) the relief to which the plaintiff is entitled. After recording the findings that the agreement was proved, the suit for specific performance of contract was decreed on payment of balance sale consideration of Rs. 450/ -.
(3.) THE appellate Court considered the grounds taken in appeal of compliance of Section 16 (c) of the Specific Relief Act. Relying upon the judgments in Mahmood Khan and Anr. v. Ayub Khan and Ors. , AIR 1978 Alld. 463 and Kandev Nath Chaudhari v. Devendra Kumar Nath, AIR 1979 Guwahati 65, the appellant Court held that since the necessary averments as required under Section 16 (c), were not made in the plaint, the plaintiff is not entitled to the relief of specific performance of contract. In para 13 of the judgment the appellant Court observed that the appellant did not dispute before the Court in appeal that the agreement bears his thumb impression. He however stated that Jaibunisha had taken a loan of Rs. 250/-, and had signed on a paper. It was not clear as to when and how, the thumb impression was taken on the agreement. The appellate Court upheld the findings of the trial Court that the agreement was proved and that defendant had received Rs. 950/- towards part of the sale consideration.;