D.C.Srivastava, J. - (1.) This is defendant's second appeal, against the judgment and decree dated 10th October, 1980 of District Judge, Saharanpur. The brief .facts are that on 5th June. 1973 the defendant-appellant entered into an agreement with the plaintiff-respondent for sale of his three plots No. 757, 787 and 759 for Rs. 7,000/-. The'sale deed was to be executed within 5 years from the date of agreement. The plaintiff requested the defendant several times to execute the sale deed, but he'avoided. Two notices were sent on 8th February, 1978 and 18th February, 1978. Through the second notice dated 18th February, .1978, 3rd March,. 1978 was fixed as the date for execution of the sale deed, but the defendant did not respond. The plaintiff went to the office of Sub-Registrar, got his presence noted. Thereafter the suit was filed on 22nd March,. 1978 alleging that the plaintiff was always ready and willing to perform his part of obligation under the contract and the defendant refused to execute the sale deed.
(2.) The suit was contested on the ground that the plaintiff had no means to pay the sale consideration and was never ready and willing to perform his part of obligation under the contract. A notice was given by the defendant to the plaintiff on 15th March, 1978 in which 30th March, 1978 was fixed as the date for execution of the sale deed, but the plaintiff did not respond and did not appear with the money before the Sub-Registrar.
(3.) The suit was dismissed by the trial Court observing that the plaintiff was not ready and willing to perform his part of the agreement because he had no means to arrange Rs. 7,000/-. An appeal was filed, which was allowed, hence this second appeal. Only two substantial questions of law arose in this second appeal. The first is whether the suit was premature. Learned Counsel for the appellant on this point argued that since the agreement was executed on 5th June, 1973 and the period stipulated was 5 years, the suit could not be filed before 5th June, 1978. Reliance was placed upon the pronouncement in Harihar Singh v. Udaibir Singh, wherein it was laid down that the cause of action in such cases of specific performance of contract arises only after the time for performance of contract expires. It was held that since the suit was filed before the expiry of the prescribed time, the suit was premature and was liable to be dismissed. The first Appellate Court has not answered this plea of the defendant-appellant and has observed that this may not be considered material since the time limit did expire after the suit had been brought and there can be no legitimate bar to the Court taking notice of this subsequent fact also.. Thus the first Appellate Court did not answer this question. For answering this question, agreement has to be referred and it is to be seen whether cause of action, on the facts of the case, accrued after the expiry of the period mentioned in the agreement or upon the defendant's refusal and avoidance to execute the sale deed.;