Judgment

P. S. KAILASAM, J. :- This appeal is filed by the plaintiff against the judgment of the Allahabad High Court on a certificate dismissing the suit for specific performance of a contract of sale dated 24th March, 1964.

2. The facts of the case are briefly as follows :-

The suit property was owned by one Shri Aditya Narain and the plaintiff/appellant became a tenant of the suit property under Aditya Narain in the year 1942. On 2nd January, 1961 the respondents, the two defendants in the suit purchased the suit property for Rs. 19,000 from Aditya Narain and the appellant became tenant of the respondents. Soon after the purchase of the property by the respondents they sought to evict the appellant by filing a petition under Section 3 of the U. P. Rent and Eviction Act. The appellant resisted and the Rent Control and Eviction Officer rejected the petition holding that the respondents requirement of the premises was not genuine. On the mediation of Sri Chand Doneria, the parties entered into the suit agreement on 24th March, 1964. In pursuance of the agreement the appellant handed over Rs. 4,000 as earnest money to the respondents. The terms of the agreement will be set out in due course but suffice it at this stage to state that it provided that the appellant should get the sale deed executed within two months i.e. upon 24th May, 1964 and in case the appellant did not get the sale registered within two months the earnest money of Rs. 4,000 shall stand forfeited. From the 5th May, 1964 letters and telegrams were exchanged between the parties but the sale deed was not executed on or before the 24th or on the 25th May as the parties had agreed. The appellant filed a suit, Civil Suit No. 122 of 1964, in the court of Civil Judge, Agra, on 2nd September, 1964 alleging that the appellant has always been ready and willing to perform his part of the contract and he did all that he was bound to do under the agreement but the respondents failed to execute the sale deed as agreed and therefore committed breach of the contract. The plaintiff prayed for a decree of specific performance of the contract of sale dated 24th March, 1964 against the respondents and for direction to the respondents to execute the sale deed of the property and get it registered and in default the sale deed may be executed by the court according to law. The respondents filed a written statement denying the various allegations made in the plaint and pleaded that the appellant did not perform his part of the contract within the stipulated time and the contract thereafter did not subsist and therefore the suit was misconceived. On these pleadings the trial court framed five issues of which it is relevant to note only two which are issues 1 and 3. They are as under :-

Issue No. 1. "Whether the plaintiff was always ready and willing to perform his part of the contract as alleged in the plaint?"

Issue No. 3. "Whether the contract did not subsist on the date the suit was filed?"

The trial Court found that it was proved beyond a shadow of any doubt that the appellant was always ready and willing to perform his part of the contract and the respondents were not at all anxious to execute the sale deed in his favour and that the respondents were guilty of breach of contract. On issue No. 3 it found that even though the time for getting the sale deed executed expired after 24th May, 1964 the appellant would not be disentitled to the relief of specific performance of the contract for sale on the ground of delay as the respondents themselves were responsible for it. The respondents preferred an appeal to the Allahabad High Court and a Bench of the Court on the arguments set out two point for determination in the appeal. They are (1) whether the appellants or the respondents committed the breach of contract entered into between the parties on 24th March, 1964 and (2) whether the time was of the essence of the contract. If not, its effect. The High Court found that the respondents were