RAMA KANT Vs. PREMA DEVI

JUDGEMENT

(1.) Heard, Shri G.S. Srivastava, Advocate holding brief of Shri Ashok Kumar Srivastava, learned counsel for the appellants and Sri Sharad Pathak, learned counsel for the respondents.

(2.) This second appeal under Sec. 100 of the Civil Procedure Code, 1908 (here-in-after referred as C.P.C.) has been filed assailing the judgment and decree dtd. 10/11/1987 passed in Regular Suit No. 111 of 1984 (Shiv Nayak (dead) and others v. Shiv Dularey (dead) and others) by the First Additional Civil Judge, Raibareli and judgment and decree dtd. 27/2/2023 passed in Civil Appeal No. 11 of 1991 (Shiv Dularey (Dead) and others v. Shiv Nayak (Dead) and others) by the First Additional District Judge, Raibareli.

(3.) Learned counsel for the defendant-appellants, while assailing the two judgments passed by the courts below, submitted that the trial court in a suit for specific performance of contract failed to frame the specific issue regarding readiness and willingness in terms of Sec. 16 (c) of The Specific Relief Act, 1963 (here-in-after referred as the Act of 1963). Even the lower appellate court ignored the aforesaid aspect and decided the appeal without framing points of determination, therefore, the appellants had filed Second Appeal No. 205 of 1992 before this Court, which was allowed by means of the judgment and order dtd. 9/5/2022, whereby this Court had remanded the matter to the lower appellate court directing it to frame points of consideration and thereafter decide the appeal on merits. It was further argued that the lower appellate court despite the clear order of this Court, though, framed the points for determination but decided the case on the basis of already existing evidence and did not permit the parties to lead fresh evidence which is in violation of Order XLI, Rule-25, C.P.C. apart from the fact that the opportunity of hearing has been lost to the appellant.