L.N.MITTAL,J. - (1.) DEFENDANT Buta Singh having lost in both the courts below has filed this second appeal.
(2.) SUIT was filed by respondent/plaintiff Joga Singh against defendant-appellant for possession of the suit land measuring 8 kanals 2 marlas by specific performance of the agreement to sell dated 19.3.2009 and also for permanent injunction. It is undisputed that defendant agreed to sell the suit land to the plaintiff for Rs. 10,68,190.00 and received Rs. 1 lac as earnest money and executed the agreement dated 19.3.2009. Plaintiff's case is that he has always been ready and willing to perform his part of the contract but defendant committed breach thereof. Defendant's version is that he has always been ready and willing to perform his part of the contract but the plaintiff did not have money for getting the sale deed executed and plaintiff committed breach thereof. Courts below have decreed the suit of the plaintiff for possession of suit land by specific performance of the agreement. Feeling aggrieved, defendant has filed this second appeal.
(3.) I have heard counsel for the appellant and perused the case file. Counsel for the appellant vehemently contended that the plaintiff has failed to comply with section 16(c) of the Specific Relief Act, 1963 (in short the Act) because the plaintiff simply pleaded his readiness and not also willingness to perform his part of the contract in the plaint as well as in the affidavit of his examination in chief. It was thus contended that for want of necessary pleading and evidence, the plaintiff is not entitled to relief of specific performance of the agreement. Reliance in support of this contention has been placed on judgment of Allahabad High Court in Ram Singh & Ors. Versus Subhar Singh, 2011(1) Civil court Cases 766, and judgment of Hon'ble Supreme Court in Umabai and Anr. Versus Nilkanth Dhandiba Chawan (Dead) by Lrs. And Anr.,2005(2) Civil Court Cases 445 (SC). It was also argued that the plaintiff did not have the resources to pay the sale price and for this reason also, he is not entitled to specific performance of the agreement. In this respect, reliance has been placed on judgment of this Court in Mohinder Singh (since deceased) through LRs. Versus Smt. Pritam Kaur, 2011(2) Civil Court Cases 272 (P&H).;