N. C. SHARMA, J. - (1.) HEARD Mr. M. C. Bhandari and Mr. B. L. Khatri.
(2.) THIS was a suit for specific performance filed by the respondent against the appellant on 10th February, 1981 which has been decreed by both the courts below. According to the plaintiff, an agreement to sell his house situated in Ward No. 4, Hanumangarh Town was entered into by the defendant on 8th September, 1978. The agreement to sell is Ex 1 on the record of the trial court. An amount of Rs. 3850/- was given by the plaintiff to the defendant as advance. The defendant had agreed that he will get the sale deed executed and registered by 5th March. 1980. It was further stipulated that in case the defendant will not get the sale deed registered, he will be liable to pay double the amount advanced to him by the plaintiff as damages and the plaintiff will also be entitled to get the sale deed registered in his favour through the process of the court. If on the other hand, the plaintiff did not pay the balance amount of consideration money, the advance amount will be forfeited. The defendant's plea in the written statement has been that he had actually borrowed an amount of Rs. 2500/- from the plaintiff and as he was illiterate, he does not know if the plaintiff got a thumb impression on some other type of document. It was also pleaded that some other co-sharers in the house were also the necessary parties. The son of the defendant was employee of the plaintiff on monthly salary of Rs. 250/- and the loan taken by him has been discharged as bis son had worked on the 'tal' of the plaintiff for ten months. The trial court found that an amount of Rs. 2500/- had been advanced by the plaintiff to the defendant and an amount of Rs. 1350/- was added as interest. The trial court, however, held that the defendant had executed the agreement Ex. 1 and had agreed to execute the sale deed and get it registered by the stipulated date. The alleged other co-sharers were not held to be necessary parties in this suit. It was held that so far as the employment of the defendant's son was concerned, that account had been squared up separately. So far as readiness and willingness of plaintiff to perform his part of the contract was concerned, it was held by the trial court that there was no assertion of the defendant that the plaintiff was not ready and willing to perform his part of the contract. The trial court, therefore, decreed the suit of the plaintiff for specific performance of the contract. The defendant filed First Appeal No. 33 of 1985. The first appellate court held that as a matter of fact, an amount of Rs. 3850/- had been advanced by the plaintiff to the defendant on 8th September, 1978 when the agreement to sell (Ex. I) was executed. He also found that there was nothing to show that the defendant had executed Ex. 1 under any undue influence. The first appellate court further found on the basis of the statement of the plaintiff that he was ready and willing to perform his part of the contract. He agreed with the findings of the trial court that other co-sharers were not necessary parties to the suit. Consequently the decree passed by the trial court was affirmed by the Additional District Judge No. 2, Hanumangarh.
(3.) THE learned counsel for the appellant urged that the trial court had found that actually an amount of Rs. 2500/- was only advanced by the plaintiff to the defendant and not Rs. 3850/ -. According to the trial court, an amount of Rs. 1350/- was added as interest and thus the amount of advance was made as Rs. 3850/ -. It was argued that the first appellate court could not have reversed the findings of the trial court on this issue. Reliance was placed upon Order 41 Rule 22 C. P. C. in this connection. On a construction of Order 41 Rule 22 C. P. C. it is quite clear that respondent to an appeal against whom some issue or some part of the issue has been decided, has two remedies open. He can either file cross-objections or he may during the course of appeal state that the findings given against him in the court below in respect of any issue ought to have been in his favour. Thus both the remedies were open to the respondent. THE respondent, who may not have appealed against any part of the decree, could not only support the decree but also state that the findings against him in the court below in respect of any issue ought to have been in his favour. Remedy of filing cross-objections is an additional remedy. It was next urged by the learned counsel for the appellant that the plaintiff has not been able to establish that he was ready and willing to perform his part of the contract because he had not given any notice to the defendant offering the balance amount of the consideration money and to get the sale deed executed. There is evidence of the plaintiff himself that he was ready to give the balance amount and was still ready to do so. The plaintiff has deposed that he had approached the defendant to get the sale deed executed but the defendant stated that time for doing so may be extended because his daughter was ill. There is no evidence from the side of the defendant to the contrary. The learned counsel for the defendant-appellant relied upon the decision reported in AIR 1971 Andhra Pradesh 279 and contended that the plaintiff was not ready and willing to perform his part of the contract. The facts in Andhra Pradesh decision were quite distinguishable. In that case, the plaintiff had alleged that he had paid a sum of Rs. 1500/- to the defendant. The consideration amount stipulated was Rs. 1772. 50. The plaintiffs version that he paid a sum of Rs. 1500/- was found not to be true. It was, therefore, held that when the plaintiff states that he was ready and willing to perform his part of the contract, it must be taken that he was ready and willing to pay Rs. 272. 50 which was the balance and the readiness and willingness to pay Rs. 272. 50 only could not be held as readiness and willingness to perform his part of the contract. The first appellate court has dealt with this decision and has distinguished it rightly after having found that an amount of Rs. 3850/- was advanced by the plaintiff to the defendant as pleaded by him. In such circumstances, it cannot be held that the plaintiff was only ready and willing to pay a lesser amount than stipulated. The courts below rightly decreed the suit of the plaintiff for specific performance of the contract against the appellant. ;