J.R.CHOPRA, J. - (1.) THIS civil second appeal is directed against the judgment of the learned Additional District Judge, Ganganagar dated 25.5.1974 whereby he has set aside the judgment of the trial court and has dismissed the suit of the plaintiff for specific performance of contract with the direction that the plaintiff-vendee is entitled to receive back Rs. 5500/- paid by him to defendant No. 1 Gurdayal Singh. The costs have been ordered to be easy.
(2.) THE facts necessary to be noticed for the disposal of this appeal briefly stated are that defendant No. 1 Gurdayal Singh entered into an agreement to sell 15 bighas of his land to the plaintiff Santasingh situated in chak 4 S.D.S. for a sum of Rs. 8250/-. A written agreement to that effect was executed by defendant No. 1 and was later got registered. This land has been allotted to the defendant No. 1 as a non-claimant displaced person. Some of the instalments were still outstanding against defendant No. 1 and so it was agreed between the parties that the defendant No. 1 would pay the instalments to the Custodian Department. It was agreed between the parties that the sale deed will be got registered on Jeth Sudi 11, Samvat year 2022 corresponding to the English date 27.5.65. Rs. 2750/- were made payable at the time of the execution of the sale deed Defendant No. 1, however, did not deposit the instalments in time and so the plaintiff could not get the sale deed registered. He however, cleared all the instalments by July 1968 and in August 1968 the plaintiff gave a notice to defendant No. 1 to execute the sale deed in his favour but it is alleged that on 9.9.1968 defendant No. 1 executed an agreement for sale in favour of defendant No. 2 Nanak Singh and later he executed the sale deed in favour of defendant No. 3 Darbara Singh, who purchased this land having notice of the fact that defendant No. 1 had already executed an agreement to sell this 15 bighas of land in favour of the plaintiff and has handed over the possession of the suit land earlier. THE cause of action to file the suit arose to the plaintiff only in the month of July 1968 when all the instalments were deposited by defendant No. 1, i. e. Gurdayal Singh. The defendants in their separate written statements have denied that defendant No. 1 has executed an agreement to sell the land in favour of (he plaintiff and has handed over the possession of the suit land to him after accepting Rs 5500/- as advance. Many other pleas were also taken but it is not necessary to mention all those pleas here in detail because in the first appellate court the decree of the trial court was challenged only on three counts, i.e. the suit is barred by limitation, the plaintiff is guilty of laches and the plaintiff has not averred and proved that he was and is ready and willing to perform his part of the contract as per section 16 (1) (c) of the Specific Relief Act (for short 'the Act'). The trial court has ofcourse framed 15 issues in the case and all the issues were decided in favour of the plaintiff and consequently the learned trial court has decreed the suit of the plaintiff for specific performance of the contract. The first appellate court has however, held that the suit of the plaintiff is barred by limitation. It has further held that the plaintiff is guilty of laches and thirdly it has held that the plaintiff has not complied with the provisions of section 16 (1) (c) of the Act and, therefore, it has dismissed the suit of the plaintiff by accepting the appeal against the judgment of the learned trial court and hence Darbara Singh, the purchaser of the land has come up in appeal before this Court. I have gone through the record of the case and have heard Mr. S.K. Goel appearing for the plaintiff-appellant and Mr. Rajendra Mehta appearing for the defendant-respondents. Mr. Goyal first submitted that the learned first appellate court has erred in holding that the plaintiff has not averred and proved the fact that he was/is ready and willing to perform his part of the contract. In this respect he drew my attention to paragraphs 3, 5 and 7 of the plaint. In para 3 the plaintiff has averred that he told defendant No 1 several times to receive the remaining amount from him and to get the sale deed registered in his favour but he did not get the sale deed registered on the appointed date after depositing the instalments which were due against him. He therefore, gave one registered notice to him on 24.8.1968 but that notice was refused by defendant No 1. In para 5 the plaintiff has averred that he told the defendant a number of times to receive from him the remaining amount of the consideration and to get the sale deed registered in his favour but he did not pay any heed to his request and ultimately on 4.11.1968 he refused to get the sale deed registered in his favour. In para 7 it has been pleaded that certain instalments were to be paid by the defendant No. 1 to the Custodian Department in order to complete his title on the disputed land. The defendant could not have transferred this land without obtaining a 'sanad' from the Custodian Department. Defendant No. 1 did not deposit all the instalments upto Jeth Sudi 11, Samvat year 2022, rather he deposited all the instalments by July, 1968 and, therefore, the valid cause of action arose in favour of the plaintiff to get the contract specifically performed only in July, 1968. As soon as this cause of action accrued to him, he gave a notice on 24.8.1968 and after that on 6.11.1968 the suit was filed. This is the sum and substance of the averments made by the plaintiff in his suit to show his readiness and willingness to perform his part of the contract. So far as the evidence is concerned, the plaintiff examined himself as P.W. 1. He has not said a word in his examination-in-chief that he was and is ready and willing to perform his part of the contract. In the cross examination of course he has stated that he told defendant No. 1 several times to get the sale deed registered in his favour but he told him that first he will pay the outstanding instalments and then the sale deed will be executed in favour of the plaintiff. Nothing else is contained in his statement regarding his readiness and willingness to perform his part of the contract.
(3.) NOW this has to be seen whether these averments in the plaint and this particular assertion made in the cross examination by P.W.I Santa Singh is sufficient to meet the requirements of section 16(1)(c) of the Act. Mr. Goyal argued that these averments and this particular piece of evidence are sufficient. In this respect he placed reliance on a Division Bench decision of this Court in Kripalsingh vs. Kataro (l). In this decision the Division Bench presided over by C.M. Lodha the then C. J. held that in a suit for specific performance of the contract it is the duty of the plaintiff to aver and prove that he was and is ready and willing to perform the essential terms of the contract. Before granting specific performance the court has to see whether the plaintiff has complied with the condition precedent laid down in clause (c) of sec. 16 which is based on the maxim "he who seeks equity, must do equity". Where the allegations Of the plaintiff in support of the pleas that he was ready and willing to perform his part of the contract are denied merely generally and evasively and not specifically by the defendant, the same cannot be lost sight of while determining whether the plaintiff has proved that he was ready and willing to perform his part of the contract. It was further held that omission to purchase stamps and prepare draft sale-deed do not disentitle the plaintiff to specific performance. The entirety of circumstances, conduct of parties and essential terms of contract are to be taken into consideration to determine whether the plaintiff has complied with the condition precedent laid down in sec. 16(l)(c) of the Act. Mr Goyal further relied on a Division Bench decision of the Madras High Court in Lakshmi Narayana v. Singarvelu(2) wherein it has been held that once the cause of action is complete and effective remedy is available for the party who relies upon the cause of action; suspension of the cause of action during any period after the cause of action has arisen can only be justified under the various exemptions specified in the sections of the Limitation Act. Mr. Goyal also drew my attention to para 112 of a Division Bench decision of the Andhra Pradesh High Court in Subbayya vs. Garikapati (3). Of course it was admitted that he should be specifically pleaded that the purchaser was continuously ready and willing to perform the contract but it was held that the recitals in para 6 to 8 of the plaint are sufficient to show that the plaintiff was ready and willing to perform his part of the contract. This ruling therefore, applies to the facts of that particular case. Mr. Mehta has however, submitted that in this case the only averments made in the plaint by the plaintiff related to the fact that he asked the defendant No 1 to execute the sale deed on the date fixed in the agreement by receiving the remainder of the consideration from him. This particular averment made in para 3 does not specify the requirements of section 16 (1) (c) of the Act. The plaintiff has to show that he was and is ready and willing to perform his part of the contract and this readiness and willingness has to be continuous from the date of the execution of the agreement to the date of the hearing of the suit. In this respect he drew my attention to a decision of their Lordships of the Supreme Court in Gomathinayagam Pillai v. Pallan-iswami Nadar (4) wherein their Lordships observed as under:- "The respondent must in a suit for specific performance of an agreement plead and prove that he was ready and willing to perform his part of the contract continuously between the date of the contract and the date of hearing of the suit." He further drew my attention to a Single Bench decision of this Court in Dhanbai vs. Pherozshah wherein Hon. Shinghal J, as he then was, has held as under:- "The plaintiff in an action for specific performance of a contract for the sale of land must plead that he is ready and willing to carry out the contract. The repudiation of the contract by the defendant will not relieve him of this obligation. In paragraph 2 of the plaint it has been stated that inspite of reminder and demand, the defendant did not execute and register the sale-deed and that on the other hand, she gave a notice to the plaintiff on February 3, 1959 refusing to execute the document and that the plaintiff therefore stated in his reply dated February 7, 1959 that if she would not at once execute the sale-deed after registering it, and take Rs. 3400/- from the plaintiff, proper action would be taken against her. But such an averment cannot be said to fulfil the above-mentioned requirement. Then in paragraph 5 of the plaint the plaintiff has stated that he was entitled to have the sale deed executed by the defendant and to get it registered, and to pay her Rs. 3,400/-. This is also not an averment of the kind of readiness and willingness required in such a case Paragraph 8(1) of the plaint relates to the relief claimed by the plaintiff but, even so, its relevant portion relied upon merely contains the prayer that the sale deed should be got executed by the plaintiff on a stamp paper, that it should be registered after attestation and thereafter Rs. 3400/- should be ordered to be paid to the defendant. This again is not an averment of the plaintiff's continuous readiness and willingness to perform his part of the contract. It will this appear that the plaintiff has not made an averment in the plaint regarding his readiness and willingness to perform his part of the contract. The plaint does not therefore disclose a cause of action for the suit and there is justification for the argument that it should be dismissed for that reason." ;