RAKESH KUMAR JAIN,J - (1.) THE defendant is in second appeal.
(2.) THE facts of this case are that Darshan Singh defendant-appellant herein is the owner of land measuring 8 Kanals 5 Marlas and plot measuring 10 Marlas situated in village Kangniwal and Chandan Singh Tehsil and District Jalandhar which he agreed to sell to the plaintiff by way of an agreement to sell dated 15.6.1982 for a sum of Rs. 52,025/- and had received a sum of Rs. 20,000/- as earnest money. According to the agreement to sell, the sale deed was to be executed till 31.1.1983. Since the plaintiff had lost previous agreement to sell dated 15.6.1982, therefore, by virtue of a subsequent agreement to sell dated 29.1.1983 the date for execution of sale deed was extended to 10.6.1983 and the defendant had received another sum of Rs. 10,000/- from the plaintiff. Therefore, the sale consideration amount remained to be paid was Rs. 22,025/-. It was further pleaded by the plaintiff that he was and is still ready and willing to perform his part of contract and accordingly made several requests to the defendant. It was pleaded that on 10.6.1983, the plaintiff had gone to the office of Sub Registrar with the remaining sale consideration of Rs. 22,025/- but the defendant did not turn up. The plaintiff has alleged that he has given a notice to the defendant on 10.6.1983 itself and then on 21.7.1983 and 29.7.1983 to get the sale deed executed but to no avail, therefore, the present suit has been filed on 5.8.1983 for specific performance of the agreements dated 15.6.1982 and 29.1.1983 and in the alternative for decree of recovery of Rs. 50,000/- i.e. 30,000/- as advance money and Rs. 20,000/-as damages with interest @ 18% per annum. In preliminary objections of the written statement, the defendant had pleaded that suit for specific performance is not maintainable in the present form as the plaintiff is barred by his own act and conduct and that no payment was made to the defendant. On merits, defendant admitted the execution of agreements dated 15.6.1982 and 29.1.1983 but denied the receipt of the consideration. He also pleaded that on 10.6.1983, he had gone to the office of Sub Registrar and waited for the plaintiff till 5 P.M. but he did not turn up and ultimately he engaged Bawa Sardul Singh, Advocate, Jalandhar and had given notice to the plaintiff terminating the agreement to sell. The plaintiff denied the averments of the written statement and reiterated the stand taken in the plaint.
(3.) ON the basis of the pleadings of the parties, the trial Court struck the following issues : (i) Whether the defendant entered into an agreement to sell the property on 15.6.1982 and 29.1.83 ? OPP. (ii) Whether the plaintiff has been ready and willing to perform his part of the contract ? OPP. (iii) Whether the defendant has breached the terms of the agreement ? OPP. (iv) Whether the suit is not maintainable ? OPD. (v) Whether the plaintiff is barred by his act and conduct to file this suit ? OPP. (vi) Relief. Both the parties led oral as well as documentary evidence. The trial Court, vide its judgment and decree dated 11.2.1985 decreed the suit holding that the defendant had entered into the agreements dated 15.6.1982 and 29.1.1983 which are on record as Ex. P2 and Ex. P3 respectively and had also received a sum of Rs. 30,000/- as earnest money. So far as issue No. 2 regarding readiness and willingness is concerned, the trial Court had held that though plaintiff and defendant did not go to the office of Sub Registrar on 10.6.1983 yet the plaintiff had always been and is still ready and willing to perform his part of contract. The defendant filed first appeal which was dismissed by the Additional District Judge, Jalandhar vide his judgment and decree dated 2.3.1987 rejecting the only stand taken by the defendant that the suit of the plaintiff could not have been decreed as he has not proved to be ready and willing to perform his part of contract since he did not come present in the office of Sub Registrar on the date fixed. ;