SANTA SINGH Vs. DARBARA SINGH

JUDGEMENT

(1.) THIS civil second appeal is directed against the judgment of the learned Additional District Judge, Ganganagar dated 25.5.1974 whereby he has set aside the judgment of the trial court and has dismissed the suit of the plaintiff for specific performance of contract with the direction that the plaintiff-vendee is entitled to receive back Rs. 5500/- paid by him to defendant No. 1 Gurdayal Singh. The costs have been ordered to be easy.

(2.) THE facts necessary to be noticed for the disposal of this appeal briefly stated are that defendant No. 1 Gurdayal Singh entered into an agreement to sell 15 bighas of his land to the plaintiff Santasingh situated in chak 4 S.D.S. for a sum of Rs. 8250/-. A written agreement to that effect was executed by defendant No. 1 and was later got registered. This land has been allotted to the defendant No. 1 as a non-claimant displaced person. Some of the instalments were still outstanding against defendant No. 1 and so it was agreed between the parties that the defendant No. 1 would pay the instalments to the Custodian Department. It was agreed between the parties that the sale deed will be got registered on Jeth Sudi 11, Samvat year 2022 corresponding to the English date 27.5.65. Rs. 2750/- were made payable at the time of the execution of the sale deed Defendant No. 1, however, did not deposit the instalments in time and so the plaintiff could not get the sale deed registered. He however, cleared all the instalments by July 1968 and in August 1968 the plaintiff gave a notice to defendant No. 1 to execute the sale deed in his favour but it is alleged that on 9.9.1968 defendant No. 1 executed an agreement for sale in favour of defendant No. 2 Nanak Singh and later he executed the sale deed in favour of defendant No. 3 Darbara Singh, who purchased this land having notice of the fact that defendant No. 1 had already executed an agreement to sell this 15 bighas of land in favour of the plaintiff and has handed over the possession of the suit land earlier. THE cause of action to file the suit arose to the plaintiff only in the month of July 1968 when all the instalments were deposited by defendant No. 1, i. e. Gurdayal Singh.

(3.) NOW this has to be seen whether these averments in the plaint and this particular assertion made in the cross examination by P.W.I Santa Singh is sufficient to meet the requirements of section 16(1)(c) of the Act. Mr. Goyal argued that these averments and this particular piece of evidence are sufficient. In this respect he placed reliance on a Division Bench decision of this Court in Kripalsingh vs. Kataro (l). In this decision the Division Bench presided over by C.M. Lodha the then C. J. held that in a suit for specific performance of the contract it is the duty of the plaintiff to aver and prove that he was and is ready and willing to perform the essential terms of the contract. Before granting specific performance the court has to see whether the plaintiff has complied with the condition precedent laid down in clause (c) of sec. 16 which is based on the maxim "he who seeks equity, must do equity". Where the allegations Of the plaintiff in support of the pleas that he was ready and willing to perform his part of the contract are denied merely generally and evasively and not specifically by the defendant, the same cannot be lost sight of while determining whether the plaintiff has proved that he was ready and willing to perform his part of the contract. It was further held that omission to purchase stamps and prepare draft sale-deed do not disentitle the plaintiff to specific performance. The entirety of circumstances, conduct of parties and essential terms of contract are to be taken into consideration to determine whether the plaintiff has complied with the condition precedent laid down in sec. 16(l)(c) of the Act. Mr Goyal further relied on a Division Bench decision of the Madras High Court in Lakshmi Narayana v. Singarvelu(2) wherein it has been held that once the cause of action is complete and effective remedy is available for the party who relies upon the cause of action; suspension of the cause of action during any period after the cause of action has arisen can only be justified under the various exemptions specified in the sections of the Limitation Act. Mr. Goyal also drew my attention to para 112 of a Division Bench decision of the Andhra Pradesh High Court in Subbayya vs. Garikapati (3). Of course it was admitted that he should be specifically pleaded that the purchaser was continuously ready and willing to perform the contract but it was held that the recitals in para 6 to 8 of the plaint are sufficient to show that the plaintiff was ready and willing to perform his part of the contract. This ruling therefore, applies to the facts of that particular case.