RIKHIDEO Vs. PHOOL CHAND AND ORS.

JUDGEMENT

(1.) THIS is defendant's second appeal arising out of suit for specific performance of the agreement for sale dated 30th January, 1985. Under the agreement disputed land was to be sold to the plaintiff for a sum of Rs. 17,200/ - out of which a sum of Rs. 8,000/ - was paid to the defendant, who promised to execute the sale deed after receiving remaining amount of Rs. 9,200/ The agreement for sale was registered on 15.12.1985. The defendant agreed to execute the sale deed on 30.12.1989 but did not reach the office of Registrar and avoided execution of the sale deed. The plaintiff gave a notice to execute the sale deed in terms of the agreement but the defendant failed to comply the same, hence necessity to file the suit arose. In the plaint it was specifically alleged that the plaintiff was ready and willing to perform his part of the contract.

(2.) THE suit was contested by the defendant appellant denying the plaint allegations in general. It was averred that the amount of Rs. 7,000/ - was not given for purchase of the land rather plaintiff agreed to advance this sum on the condition that the defendant mortgages his property, therefore, the defendant went with the plaintiff to execute the deed of mortgage and he signed the deed under that impression but the suit was incorrectly filed. 'Factum of readiness and willingness' as averred in para 5 of the plaint was not specifically denied, rather denial was made in para 5 to the effect that the averments made in para 5 were not accepted.

(3.) UNDER Para 4 it has been stated that as the defendant appellant did not reach the office of Registrar on 30.12.1985 the plaintiff took it seriously and inferred that the defendant does not want to execute the sale deed. Thereafter the plaintiff served a notice on the defendant that later may come to the office of Registrar at Rasra on 16.1.1986 and execute the sale deed after accepting the remaining sale considerations as contemplated under the agreement. But the defendant did not accept that notice. Then second notice was given to the appellant that he may come to the office of Registrar on 15.2.1986 to execute the sale deed after accepting the balance of the Sale consideration but that notice was also not accepted by the defendant. Under Para 5 of the plaint it has been stated that the conditions to the extent they were acceptable by the plaintiffs have been accepted by them and the plaintiffs have been ready and willing to perform their part of the contract but the defendant did not do the needful even after repeated requests made by the plaintiffs consequently the plaintiffs had no option but to file the suit with the reliefs claimed by them. The defendant appellant in his written statement on the other hand made just as evasive reply to the positive allegations made by the plaintiffs. Rules II to v. of Order VIII of the Code of Civil Procedure contain provisions as to how the defendant has to reply the allegations made in the plaint. Rule 2 is to the effect that the defendant must by his pleading all matters which show the suit not to be maintainable or that the transaction is either void or voidable in point of law. Rule 3 provides that just a general denial of the allegations of the plaint by the defendant would not be sufficient. The defendant must specifically deny each allegations of the fact alleged by the plaintiff. Rule 4 provides that the denial by the defendant must not be evasive rather same must be positive.