AJIT SINGH Vs. MOHD SALIM

JUDGEMENT

(1.) POONAM Srivastava, J. Heard Sri B. K. Narayana, learned Counsel for the appellant and Sri T. P. Singh, Senior Advocate, assisted by Sri Anupam Kumar Advocate for the respondent.

(2.) THE instant second appeal is preferred against the judgment dated 5-10-1999 passed by IIIrd Additional District Judge, Allahabad dismissing the civil appeal No. 663 of 1985 confirming the judgment of 1st Additional Civil Judge, Allahabad dated 5-10- 1985 in Original Suit No. 172 of 1975.

(3.) THE second decision relied by the Counsel is Smt. Bachchi Devi & Ors. v. 1st Additional District Judge & Ors. , 1983 ARC 849. This is again in support of the argument regarding presumption regarding service of notice and consequently the findings on the question of willingness in favour of the plaintiff. THE learned Counsel has also assailed the findings of the trial Court regarding the unavailability of funds with the plaintiff since the suit was filed in the deficiency and therefore, it is evident that the plaintiff was not monetarily sound and not in a position to get the sale deed executed and, therefore, the willingness and readiness contemplated under Section 16 (1) (c) of the Specific Relief Act was against him. This finding is also challenged on the basis of a number of decisions; Nathu Singh v. Jagdish Singh, AIR 1992 Allahabad 174, this Court had ruled that the Court should not have come to a conclusion that there was paucity of fund only because the suit was filed in deficiency which can happen for a number of reasons, some times due to non availability of Court fee, stamps or due to mistaken impression about the exact Court fee but this alone can not be a sufficient factor to hold otherwise. THE second relied upon is, Ganesh Prasad v. Saraswati Devi & Ors. , AIR 1982 Allahabad 47. In this case, the suit was filed in forma pauperis and on account of this reason the Courts had come to a conclusion that the plaintiff could not pay the Court fee and, therefore, he had no money to get the sale-deed executed. This Court held that the words ready and willing in clause (c) of Section 16 are simple words and all what they mean is that a plaintiff, in order to succeed in a suit for specific performance must aver and prove that he has performed or has throughout been prepared to do his part under the contract. THE plaintiff does not have in such a case to go about jingling money to demonstrate his capacity to pay the purchase price.