RAM ASHREY Vs. ATUL KUMAR GUPTA

JUDGEMENT

(1.) BOTH these appeals, preferred under Section 100 of the Code of Civil Procedure, 1908, are directed against the common judgment and decree dated 21. 08. 1996, passed by addl. District Judge III, Dehradun, whereby he has allowed the plaintiff's Civil Appeal No. 25 of 1995, and dismissed the Misc. Appeal No. 73 of 1995 filed by him (plaintiff ).

(2.) HEARD learned counsel for the parties and perused the lower court record.

(3.) BRIEF facts of the case are that original defendant Ram ashray entered into agreement with plaintiff Atul Kumar gupta on 01. 10. 1991, whereby the plaintiff agreed to sell the land in suit of plot No. 307 / 3, Balliwala Chowk, village Kanwali, Dehradun (measurement and boundaries of which are mentioned in the plaint) for Rs. 1,40,000/-, after accepting Rs. 10,000/- as advance, and Rs. 15,000/- as part of consideration at the time of execution of the registered agreement of sale. The plaintiff's case is that he was always ready and willing to perform his part of contract but the defendant avoided execution of sale deed. Initially, the sale deed was to be executed by 15. 03. 1992, which was extended upto 16. 05. 1992, as the defendant failed to obtain permission to sell the land from the Urban Land Ceiling authorities. When the defendant did not execute the sale deed, plaintiff Atul Kumar Gupta instituted Suit No. 378 of 1993, before the Civil Judge, Dehradun, on 24. 06. 1993, for specific performance of contract. The defendant contested the suit. It is admitted to the defendant that he was the owner of the property in dispute, but as to the rest of the contents of the plaint, he denied the same. However, it was alleged in Para 4 of the written statement that the plaintiff was not ready and willing to perform his part of contract. In Para 5 of the written statement, it was stated that the defendant on his part did apply for permission from the urban Land Ceiling Authorities, for sale. This indicates that execution of agreement of sale with the plaintiff was not disputed and the suit was challenged mainly on the ground that the plaintiff was not ready and willing to perform his part of contract. The trial court on the basis of pleadings of the parties, framed following issues: