The plaintiff's readiness and willingness to perform the contract must be proven, but the use of particular words is not necessary. The intention to perform the contract must appear from the statement made in the plaint.

ORDER

1. Heard learned counsel for the parties. The present appeal is filed against the judgment of the Allahabad High Court wherein the learned Judge interfering in the second appeal set aside a decree for specific performance passed by the lower appellate court.

2. The only ground on the basis of which the learned Judge of the High g Court interfered with the decree passed by the lower appellate court was that the plaintiff has not alleged and proved that he was ready and willing to perform his part of the contract. The learned Judge held that although after the written statement in the rejoinder application the plaintiff has alleged that he was ready and willing to perform his part of the contract. The learned Judge also observed that there was no issue to that effect.

3. Learned counsel for the appellant drew our attention to the issues before the trial court. It could not be held that the issue about the readiness and willingness of the plaintiff to perform his part of the contract was not framed by the trial court. In fact the plaintiff stated that he sold his agricultural properties and collected money to pay consideration in instalments and requested the defendant to execute the sale deed and when he failed to do so he sent a registered notice. All these facts clearly indicate that the plaintiff was ready and willing to perform his part of the contract; as it is not the use of particular words only which is necessary, but from the statement made in the plaint the intention must appear and when such plea was raised in the written statement regarding readiness and willingness in the rejoinder application it was clearly stated. The trial court framed Issue 4:

"Whether the plaintiff was ready and willing to purchase the house in suit as alleged? If so, its effect?"

4. Both the trial court and the lower appellate court after dealing with the facts and circumstances of the case, came to the conclusion regarding the various facts leading to the readiness and willingness to perform the contract. The lower appellate court decreed the suit. The High Court did not consider the finding of fact and placed reliance on the decision where it has been held that the plaintiff must allege and prove the readiness and willingness to perform his part of the contract. The High Court interfered with the decree of the lower appellate court and dismissed the suit for specific performance filed by the plaintiff. The learned Judge of the High Court did not consider any other question apparently because no other question was raised as is also clear from the judgment of the High Court itself as it is stated that this was the only question raised by the present respondent before the High Court. In view of the facts discussed above, the High Court was wrong in coming to the conclusion that the readiness and willingness to perform his part of the contract was not pleaded and proved.

5. The learned counsel for the respondent contended that the present appellant who is the transferee from the decree - holder had no locus standi. Unfortunately when the appellant made an application to join as respondent in the High Court the High Court passed an order stating that if any objection is raised, it will be considered.

6. The judgment of the High Court clearly indicates that the respondent did not raise any question in respect of that and in view of this matter the contention raised here for the first time cannot be considered. The appeal is therefore allowed. The judgment and decree passed by the High Court is set aside and that of the lower appellate court is restored. The appellant will be entitled to the cost of this appeal which we quantify at Rs 2000.