RAKHA SINGH Vs. SANTOKHA

JUDGEMENT

(1.) This second appeal is brought from the judgment of the District Judge, Simla reversing in appeal the judgment of the Sub-Judge, 1st Class, Nalagarh, as a result to which a suit for specific performance filed by Rakha Singh has been dismissed. It was stated by Rakha Singh that Chanan Ram (respondent No. 4) entered into an agreement with him on June 4, 1965 whereby Chanan Ram was willing to sell and Rakha Singh was willing to purchase 6 bighas 16 biswas land situate in village Bhogpur at the rate of Rs. 235 per bigha and the sale deed was to be executed on June 25, 1965. After a protracted correspondence between the parties, Chanan Ram finally wrote to Rakha Singh on 20-12-1965 that the sale deed must be executed in the month of December, 1965. According to him he also sent a notice to the plaintiff on 24-12-1965 but received no reply. Thereafter on 10-1-1966 Chanan Ram executed the sale of the disputed land in favour of the respondents 1 to 3. Rakha Singh thereafter brought a suit for specific performance of contract. The suit was decreed by the trial Court. The subsequent vendees came in appeal before the District Judge and the decree of the trial Court was set aside, it was held that Rakha Singh was not ready and willing to perform his part of the contract. The suit was accordingly dismissed. Rakha Singh has now come up in second appeal

(2.) At the very outset, the respondents contended that the question regarding readiness and willingness on the part of Rakha Singh to perform his part of the contract was a question of fact and howsoever erroneous the finding of the District Judge may be, the same cannot be set aside in second appeal. The appellant, however, controverted by saying that the learned District Judge drew up a wrong inference from the facts and circumstances made out and as the plea was a primary one and the decision depended upon it, a wrong inference thus drawn upon facts established will give rise to a question of law which can be entered into in second appeal. Being governed by this principle, I decided to consider the evidence de novo and find out if really a wrong inference has been drawn by the District Judge,

(3.) The central point argued by the learned counsel on behalf of the appellant was that a notice repudiating the contract was not given by Chanan Ram and the reasonable opportunity was not offered to Rakha Singh to perform his part of the contract and as such a decree for specific performance must have been granted. The learned counsel further argued and rightly so, that in a contract for sale of property, ordinarily, time is not the essence of the contract unless a notice is given making it essence of the contract and unless a reasonable opportunity is offered to fulfil the contract made by the promisee. One of the essential factors in a suit for specific performance of a contract is that the plaintiff must first allege and then if the matter is traversed, prove (a) that he has performed all the conditions which under the contract he was bound to perform, and (b) that he has been ready and willing at all times from the time of the contract down to the date of suit, to perform his part of the contract. It is true that in a contract for sale and purchase of land time is not essence of contract but either party can make it so by giving notice. A similar intention may be inferred from the nature of the property, surrounding circumstances and whether commercial element is involved. Readiness and willingness to perform includes ability to perform. It is incumbent upon the buyer to satisfy the Court that he was ready and willing with the money or had the capacity to pay for the property and that he had at all events made proper and reasonable preparations and arrangements for securing the purchase money. One has then to consider the facts and circumstances arising in the case in order to arrive at a finding as to whether Rakha Singh was ready and willing to perform his part of the contract.