SHEOPUJAN TANTO Vs. BHANU TANTO

JUDGEMENT

(1.) This second appeal by the defendants arises out of a suit for specific performance of a contract for sale oi certain agricultural lands.

(2.) The relevant facts of this case, which are not in dispute, are that the plaintiff agreed to purchase the suit land from the defendant No. 1 and, according ly, on 13-11-1963, an agreement for sale (Ext. 4) was executed by the defendant No. 1 in favour of the plaintiff. At that time, however, the price of the land was not fixed, but the parties agreed that the price would be fixed by one Sarda Narain Singh and both the parties would accept his decision. A sum of Rs. 500/- was paid by the plaintiff at the time of the execution of the agreement for sale itself to the defendant No. 1. The land was in mortgage of one Ishardayal Sah by a registered deed of mortgage dated 25-6-1961 for a consideration of Rs. 2,000/-. Sarda Narain Singh took some time to make verification and inspection of the suit land and ultimately fixed the price of the land at Rs. 4,000/- on 16-4-1964 which, as already said above, was accepted by both the parties. It was agreed that the amount of the mortgage debt would be left in deposit with the plaintiff for redemption of the aforesaid mortgage bond. A further sum of Rs. 520/- was paid on that very day, i.e., 16-4-1964, by the plaintiff to defendant No. 1, In this way, a sum of Rs. 1,020/- was received by the defendant No. 1 in advance towards the consideration. The balance of the consi deration was to be paid at the time of exchange of the equivalents after the execution and registration of the sale deed. According to the further case of the plain tiff as stated in the plaint, the defendant No. 1 took a further sum of Rs. 96/- on 16-4-1964 itself for purchasing the requi site stamps for execution of the sale deed, which was also purchased by defendant No. 1 and handed over to the plaintiff. It has been further stated in the plaint that in the meantime the defendant No. 1 went under the influence of some designing and interested persons and evaded the execu tion of the sale deed whenever the plain- tiff requested him to go to a scribe and ultimately on 20-4-1964 flatly refused to execute the same. The suit in question was filed immediately thereafter on 16-5- 1964 and during its pendency the defen dant No. 1 executed a sale deed in favour of defendant No. 2, who was also implead- ed as a defendant in the suit, and as already stated above, is an appellant in this Court along with defendant No. 1.

(3.) It is not necessary to state the defence set up by the defendants in their separate written statements, inasmuch as Mr. Kailash Roy, learned counsel appearing on their behalf in this court, has raised only one question in this Court, namely, that the suit of the plaintiff for specific performance of the contract in question was not enforceable as he has failed to make any averment in his plaint that he has performed or has always been ready and willing to perform the essential terms of the contract which were to be performed by him within the meaning of Clause (c) of Section 16 of the Specific Relief Act. Developing his point in course of his arguments and being confronted with the averments made in the plaint, as already indicated above, Mr. Roy adopted an argument that there should have been a further averment in the plaint by the plaintiff showing his readiness and willingness to perform his part of the contract from the date of the ccntract itself, namely, 13-11-1963, the oate when the agreement for sale (Ext. 4) was executed. He submitted that the plaint is completely silent with respect to any action taken by the plaintiff during the period from the date of the contract and 16-4-1964, the date when Sarda Narain Singh fixed the price of the land.