- (1.) Misri Devi respondent filed a suit for specific performance and in the alternative for damages. The learned trial Court partly decreed this claim. It allowed the respondent damages to the extent of Rs. 5,200/- but declined to grant the decree for specific performance. The respondent went up in appeal. The learned lower appellate Court modified the decree granted by the learned trial Court and ordered the specific performance of the contract. The defendants-appellants have come up in this second appeal.
(2.) When the case came up before me earlier on February 23, 1980, it was argued on behalf of the appellants that they were ready and willing to perform the contract and that the learned lower Appellate Court had wrongly disallowed the appellants to raise these pleas. On the basis of this submission, I set aside the order passed by the learned lower Appellate Court and remitted the case to it for submitting a report on this point. The report has been received. The learned Additional District Judge, Narnaul, who heard the case, has recorded the following finding of fact :- "The discussion of the above evidence would go to show that there is no force in the argument of the learned counsel for the defendants that the plaintiff was not prepared to perform her part of contract. Rather the above evidence would go to show that it was Ram Parshad defendant who was not prepared to get the sale deed registered despite the fact that the official Liquidator was prepared to release the property and the plaintiff had the amount with her. A perusal of para No. 2 of the written statement of Ram Parshad defendant would got to show that he did not obtain acceptance of Smt. Kamla Bhargave for selling the property in suit though he admitted the execution of the agreement to sell Exhibit P-1. Ram Parshad appearing as D.W. 1 did not state in his statement that the plaintiff was not prepared to perform her part of contract. The mere fact that other sale deeds were got registered by Ram Parshad, cannot ipso facto show that Ram Parshad was prepared to get this sale deed also registered and it was the plaintiff who was not ready to perform her part to contract. There is no reason to disbelieve the official Liquidator who clearly stated that the plaintiff was prepared to perform her part of contract but it was Ram Parshad who did not get the sale deed registered. The authority cited by the learned counsel for the defendants would not apply to the facts of this case." This finding is based on proper evidence and has been recorded for cogent reasons. It is not open to me in second appeal to reverse this finding."
(3.) Faced with this situation, the learned counsel for the appellants submitted that since the damages had been agreed upon between the parties, in the event of non-performance of the contract, the Court below should have relied upon Section 23 of the Specific Relief Act and should have declined the relief for specific performance.;