MUKHTIAR SINGH Vs. DHARAMPAL SINGH

JUDGEMENT

(1.) K. N. Singh, J. This appeal is directed against the judgment and decree of the 1st Civil Judge, Meerut dated 31-3-76 dismissing the plaintiff-respondent's suit. Mukhtiar Singh and Dharampal Singh appellants filed a suit for specific performance of the agreement dated 21-9-70 execution of a sale deed in their favour transferring the land detailed at the foot of the plaint having an area of 10 bighas 10 biswas 10 biswansies for a sum of Rs. 45. 000/ -. The defendant- respondents No. 2 to 5 were impleaded to the suit as they were transferees of the property in dispute. The plaintiff's suit was based on the allegations that Dharampal Singh, Defendant No. 1 was bhumidhar of the land in dispute. On September 21, 1970 he entered into an agreement with the appellants for sale of his bhumidhari land for a sum of Rs. 45. 000/ -. A sum of Rs. 21. 000/- was paid to him as earnest money on the date of the execution of the agreement and the remaining amount of Rs. 24,000/- was to be paid to him by 30th June 1974 when the sale deed was to be executed. The agreement stipulated that if the appellants failed to get the sale deed executed within the stipulated time, the earnest money was liable to be forfeited, and in case Dharampal Singh failed to execute the sale, it will be open to the appellants to get the sale deed executed through Court. The appellants further alleged that Dharampal Singh was a clever person, he executed a sale deed on 10-7-73 transferring half of his pro perty in dispute in favour of Hatam Singh defendant-respondent No. 2 and his son Temraj defendant-respondent No 3. Dharampal Singh further executed a gift deed on 30-8-73 giving away the remaining half of his property to his wife Smt. Sharamawati defendant respondent No. 4 and her son Suresh defendant- respon dent No. 5. On coming to know of the aforesaid transactions, the appellants served notice upon the defendants on March 20, 1974 requesting them to get the sale deed and gift cancelled and to execute the sale deed in appellant's fa vour after accepting a sum of Rs. 24,000/ -. The defendants did not comply with the notice, hence the suit. Dharampal Singh defendant respondent No. 1 and Smt. Sharmawati defendant-respondent No. 4 filed a joint written statement denying the execu tion of the agreement in appellants' favour dated 21-9-70. They asserted that the appellants had been trying to obtain sale deed in their favour by induce ment and fraud. Receipt of Rs. 24,000/- as earnest money from the plaintiff-appellants was denied. A separate written statement was filed by Hatam Singh defendant-respondent No. 2 and his son Temraj, they also denied the execution of the agreement dated 21-9-70. They further alleged that they had no know ledge of the agreement dated 21-9-70 alleged to have been executed by Dharam pal Singh in appellants' favour. According to them, the agreement was forged with a view to grab the land which had already been transferred to them by defendant respondent No. 1. On the pleadings of the parties, the trial Court framed 'the following issues : 1. Whether the defendant No. 1 entered into an agreement with the plaintiffs on 21-9-70 to sell the disputed property for sale consideration of Rs. 45,000 as alleged by the plaintiffs ?

(2.) WHETHER the defendant No. 1 duly executed any deed of agreement dated 21-9-70 after having received Rs. 21,000 as earnest money ?

(3.) TO what relief, if any, are the plaintiffs entitled ? Both the parties produced evidence oral and documentary in support of their case. On issues No. 1, 2 and 3 the trial court held that Dharampal Singh defendant-respondent No. 1 had not executed the agreement dated 21-9-70 for the sale of the land in dispute nor he had received the earnest money of Rs. 21. 000/- While dealing with issue No. 4 the trial Court held that there was no averment in the plaint that the appellants have always been willing and ready to perform their part of the agreement. In view of the finding recorded on issue No. 4, the trial court held that the appellants' suit was not maintainable. On these findings the suit was dismissed. Sri Rajeshwari Prasad learned counsel for the appellants urged that the trial court's finding that Dharampal Singh defendant-respondent No, 1 had not executed the agreement dated 21-9-70 and that he had not received the earnest money of Rs. 21,000/- is wholly erroneous. He referred to the testimony of Dharampal Singh who was examined as D. W. 6. In his testimony before the trial Court he admitted to have executed the agreement Ext. 9. and to have received a sum of Rs. 21,000/- as earnest money, but he alleged that the said amount was taken away by Hatam Singh defendant-respondent No. 2. In his written statement Dharampal Singh had totally denied the execution of the agreement or receipt of the earnest money but in witness box he clearly admit ted that he had executed the agreement and received the earnest money. In view of the admission of Dharampal Singh D. W. 6, the. -. trial Court's finding is erroneous but it is not necessary to express any final opinion in the matter as the plaintiffs' suit is bound to fail on other grounds which we will discuss later. Specific Performance of a contract is regulated by the provisions of Speci fic Relief Act 1963. Sec. 16 (c) lays down that specific performance of a cont ract cannot be enforced in favour of a person who fails to alleges prove and that he has performed or has always been willing and ready to perform the essential terms of the contract which were to be performed by him. Explana tion to clause (c) of Sec. 16 provides that the plaintiff must prove his readiness and willingness to perform the contract. Provisions of Sec. I6 (c) of the Speci fic Relief Act are mandatory in nature, it requires the plaintiff to plead that he has always been ready and willing to perform his part of the contract of which the defendant had notice. Two conditions are, therefore, necessary to be fulfilled before a suit for specific performance of contract could be decreed. Firs tly, the plaintiff must aver in the plaint that he has been always ready and willing to perform his part of the contract. Secondly, he must further prove that he has always been ready and willing to perform his part of the contract. If either of the conditions are not fulfilled, the plaintiff's suit must fail as no contract for specific performance can be enforced in absence of the plaintiff's readiness and willingness to perform his part of the contract. In Prem Raj v. D. L. F. Housing and Construction (Pvt,) Ltd. and another, ( 1968 S. C. 1355) it was held that if in a suit for specific performance the plaintiff failed to allege that he is ready and willing to perform his part of the contract, the suit must fail as there could be no cause of action for the relief of specific performance of the contract. Same view was taken by this court in Rajendra Prasad Rai v. Raj Deo Rai, (A. I. R. 1974|alld, 462.) In Ouseph Varghese v. Joseph Aley and others, ( 1969 (2) S. C. C. 539) the Supreme Court observed :- "in a suit for specific performance it is incumbent on the plaintiff not only to set out agreement on the basis of which he sues in all its details, but he must go further and plead that he has applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so. He must further plead that he has been and is still ready and willing to specifically perform his part of the agreement. " After making the aforesaid observation the Supreme Court held that in the absence of such an allegation the plaintiff's suit was not maintainable. In the present case the appellants have made no averment at all in the plaint that they have been ready and willing to perform their part of the cont ract as stipulated by the terms and conditions of the agreement dated 21-9-70. Both the appellants Mukhtiar Singh and Dharampal entered witness box but none of them stated before the trial Court that they have always been ready and willing to perform their part of the contract. In their testimony before the Trial Court, they merely stated that they were ready to pay the money and get the sale deed executed on the date their statement was recorded. The statement is not sufficient to meet the requirement of law as discussed earlier. In these circumstances, it must be held that the plaintiff-appellants have failed to allege that they were ready and willing to perform their part of the contract. In the absence of such an allegation their suit was bound to fail. The trial court has rightly dismissed the appellants' suit. The appeal fails and is accordingly dismissed with costs. .