P.C. Pandit, J. - (1.) ON 11th February, 1964, Dina Nath resident of Ferozepur agreed to sell his two -storeyed shop, situate in Ludhiana City to Parkash Chand of Ludhiana, for Rs. 14,000/ - and Rs. 4,000/ - were received as earnest money. The sale -deed had to be executed and registered within a week from that date. If Dina Nath made a default, he was bound to return the earnest money and also pay Rs. 4000/ - as liquidated damages on account of breach of contract. On the other hand, if Parkash Chand did not stick to the bargain, his earnest money was liable to be forfeited. The expenses of execution and registration of the sale -deed had to be paid by Parkash Chand. In July, 1964, Parkash Chand brought a suit against Dina Nath for specific performance of this agreement and in the alternative, a decree for Rs. 8,000/ -, Rs. 4000/ - as the earnest money and the remaining Rs. 4,000/ - as Liquidated damages. His allegations were that while he was always ready and willing to perform his part of the contract, the defendant was not prepared to do so and the latter was, therefore, guilty of breach of contract. When notice of this plaint was given to the defendant, he did not appear, but in his place, his wife Shrimati Lajwanti came to Court and made an application under Order 32, rules 3(1) and 15 of the Code of Civil Procedure, to the effect that her husband Dina Nath was not of sound mind and, therefore, incapable to defend the suit and the prayer made was that she be appointed as his guardian -ad -litem. This application was opposed by the plaintiff with the result that an issue was struck to the effect whether the defendant was of unsound mind or suffering from mental infirmity so as to require the appointment of a guardian -ad -litem. Evidence was then led on this issue both by the plaintiff and the defendant's wife. On 26th April, 1965, Miss Santosh Mehta, Subordinate Judge, 1st Class, Ludhiana, who was trying the suit at that time, after considering the evidence, came to the conclusion that the defendant was not of unsound mind or suffering from any mental infirmity and, therefore, no appointment of a guardian -ad -litem was necessary in the case. The application was, consequently, dismissed. In the order, it was mentioned that the defendant was accordingly proceeded ex -parte. But it, however, appears that later on be turned up and defended the suit. The written statement was then filed by him through his wife as his special attorney.
(2.) THE suit was contested on a number of pleas. The execution of the agreement dated 11th February, 1964, was denied. It was said that the agreement was the result of misrepresentation, fraud, undue influence and under pressure and, therefore, the same was not binding on the defendant. It was further said that Rs. 4,000/ - by way of earnest money, were not received. It was pleaded that it was the plaintiff, who was not willing and ready to perform his part of the contract and, consequently, he was not entitled to the specific performance of the agreement. On the pleadings of the parties, the following issues were framed: - 1. Whether defendant executed agreement of sale dated 11th February, 1964, in favour of the plaintiff? 2. If so whether the same was got executed under undue influence, fraud, misrepresentation, undue pressure, and while the defendant was suffering from any infirmity of the mind, if so to what effect? 3. Whether the plaintiff paid any amount by way of advance or earnest money to the defendant at the time of the alleged execution of the agreement, if so, what amount?
(3.) WHETHER the plaintiff has been ready and willing to perform his part of agreement?;