SUREKDRA NATH BHARGAVA, J. - (1.) THIS is appeal against the Judgment and decree passed by the District Judge, Jaipur City, Jaipur dated 6 -11 -1982 decreeing the Civil Suit No. 109/81 for specific performance.
(2.) THE plaintiff -respondent Mool Chand filed a suit on 7 -3 -1981 for specific performance of a contract dated 31st August, 1980 for sale of a plot of land C -41, Tilak Nagar, Moti Doongari Scheme, Jaipur. According to the original plaint, it was settled between the parties that the appellant will sale the plot to the respondent for a sum of Rs. 90,000/ -. A sum of Rs, 20,000/ -was paid to the appellant at the time of agreement to sale deed dated 31 -8 -1980 and the balance sum of Rs. 70,000/ - was payable before the Registrar at the time of registration of the document. The appellant obtained a no objection certificate from the competent authority under Section 27 of the Urban Land (Ceiling and Regulations) Act, 1976. But since the plot was not in actual physical possession of the appellant, it was agreed on 8 -12 -1980 that he will hand over vacant possession of the plot within one month, but the possession of the plot was not handed over till 31st January, 1980 and, therefore, the respondent gave a notice dated 5 -2 -1981 informing that he has purchased the stamps for the sale deed and that the appellant should send a copy of the draft sale deed, which was sent along with an application for getting No Objection Certificate. The appellant gave the copy of the draft sale deed on 7 -2 -1981 and the said deed was duly typed on the stamp papers and was also signed on 1 -3 -1981, but the appellant did not get the same registered and hence the present suit was filed. An ex -parte order was passed on 14 -4 -1981 against the appellant and ultimately an ex -parte decree was passed on 18 -5 -1981. On an application by the appellant, the ex -parte decree was set aside and the appellant filed the written statement on 3 -10 -1981 stating that as per the agreement dated 31 -8 -1980 it was agreed between the parties that the sale price of the plot will be Rs. 1,25,000/ - and not Rs. 90,000/ - and since the respondent was not ready and willing to pay agreed sale price, the sale deed could not be got registered and hence the respondent was not ready and willing that suit should not be decreed. A rejoinder was also filed by the respondent on 31 -10 -1981, wherein it was clarified that a sum of Rs. 1,25,000/ - were agreed provided the appellant hands over vacant possession of the plot in dispute and since it was not possible for the appellant to hand over the vacant possession it was agreed that he may pay Rs. 90,000/ - in all and if vacant possession is handed over the respondent will be liable to pay Rs. 35,000/ - also and, therefore, a cheque of Rs. 35,000/ - was handed over the appellant and a sale deed was executed for a sum of Rs. 90,000/ -. But since the appellant was not in a position to hand over vacant possession, the cheque of Rs. 35,000/ - could not be encashed. Issues were framed on 28 -11 -1981, which are as under :.. (In Hindi) The plaintiff respondent examined himself on 10 -9 -1981 & 21 -1 -1982 & closed his evidence. Whereas, the defendant -appellant examined himself on 21 -1 -1982 and the case was fixed for arguments. Thereafter the respondent moved an application under Order 6, Rule 17 for amendment of the plaint on 27 -7 -1982, to which a reply was filed by the appellant on 11 -8 -1982 and the amendment was allowed by the trial court by its order dated 16 -9 -1982 and the amended plaint was filed and thereafter amended written statement was also filed. The parties did not lead any further evidence after the amendment and after hearing the arguments the suit was decreed by the impugned judgment dated 6 -11 -1982.
(3.) LEARNED counsel for the appellant has vehemently argued that the decree for specific performance cannot be granted as the plaintiff respondent was never ready and willing to perform his part as agreed in the agreement for sale dated 31 -8 -1980. He has further submitted that the plaintiff did not come with clean hands and his allegations in the plaint are not in confirmity with the agreement for sale for which specific performance is prayed. His evidence is against the facts pleaded in the plaint and the amendment of the plaint was made at very belated stage. He has placed reliance on Gyan Chand v. Daulat Ram 1975 RLW 301, K. Venkata Subaiya v. K. Venkateshwar : AIR1971AP279 , Raj Rani Bhasin v. Kartar Singh : AIR1975Delhi137 , Vishwanath Mehta v. Janki Devi : AIR1978Pat190 and Pyare Lal v. Nathu Lal AIR 1979 All. 1018.;