- (1.) D. C. Srivastava, J. Suit for specific performance of agreement to sell was dismissed by the trail court, but the appellate court reversing the judgment and decree of the trial Court decreed the suit. It is, therefore, this second appeal.
(2.) LEARNED counsel for the parties were heard and the record was perused. Only three points were pressed from the side of the appellants. The first was that the plaintiffs were not possessed of ready balance money for getting the sale-deed executed, hence the decree of the lower appellate court is bad in law. The second point was that there has been no compliance of Section 16 (c) of the Specific Relief Act; and the last was that the suit was not filed on pro forma of plaint prescribed on Forms 47 and 48 of Appendix AA of the Code of Civil Procedure. Coming to the third point first, it may be observed that Forms 47 and 48 of Appendix AA of the Code of Civil Procedure are not exhaustive what is required is that under these two forms there should be specific averment that the plaintiff has been and still is ready and willing to perform the agreement on his part of which the defendant has had notice. The same ingredient is to be found in paragraph 5 of Form 48. These averments in the instant case are to be found in paragraphs 8 to 10 of the plaint which have been rightly quoted by the lower appellate court and so interpreted. Paragraph 8 of the plaint evidences the requirement of Forms 47 and 48 and also the ingredients of Section 16 (c) of the Specific Relief Act.
(3.) PARAGRAPHS 9 and 10 of the plaint further indicate that the defendants were told several times to execute the sale-deed, but they were making promises and ultimately told that they will execute the sale-deed on 9th March, 1977. On 9th March, 1977 the plaintiff went to the office of the Sub-Registrar with ready money, b. i the defendants absented. The plaintiff obtained a certificate about his presence in-the office of Sub-Registrar on 9th March 1977, which was filed as paper No. 41-C. It was argued that it is not mentioned in the certificate that the plaintiff had shown the balance money to the Sub-Registrar. In my view this was not required from the plaintiff to show the money to the Sub-Registrar. What was required from him was to show his bona fide that he approached the office of Sub-Registrar on the appointed date for getting the sale-deed executed and for that there is evidence of the plaintiff corroborated by the certificate 41-C issued by the Sub-Registrar. Consequently it cannot be said that the plaint was defective.;