In a suit for specific performance of contract, the plaintiff must plead and prove that he had all along been ready and willing to perform his part of the contract, and that he had tendered the amount in question to the defendant during the stipulated period.

S.B.Sinha, J.

1. This first appeal is directed against an order dated 5th July, 1975 passed by Shri Satya Narain Prasad Seth, Sub-Judge Giridih in Title Suit No. 9 of 1974 whereby and whereunder he dismissed the suit for a decree for specific performance of contract filed by the plaintiff-appellant.

2. The plaintiff executed five sale deeds in favour of the defendants in respect of the lands described in Schedule A/1 to A/5 of the plaint each for a consideration of Rs. 2,000. Another sale-deed was executed in respect of Schedule A/6 of the plaint on 25-3-1969 in favour of the defendants for a consideration of Rs. 1,000.

3. The first five deeds of sale were registered on 25-3-1969. On the respective date of the execution of the registered deeds of sale, agreements had been entered into to the effect that the defendants should reconvey the suit lands to the plaintiff if the amount of consideration is returned to the defendants in the month of Magh in any year from 25-3-1969 to 24-3-1974. The said agreements were marked as Exts. 4 to 4/E. According to the plaintiff she tendered the entire amount of Rs 11,000 through her men to the defendants. During the month of Magh in the year 1973 as also in the year 1974, on several occasions but the defendants deliberately or intentionally refused to receive the said amount.

4. On 6-2-1974 a notice was issued to the defendants requesting the defendants to accept the tendered amount and reconvey the suit lands, but despite receipt of the said notice of 11-2-1974, neither any reply thereto was given nor the defendants performed their part of the contract.

5. Both the defendants in the suit filed a joint written statement wherein inter alia it was denied or disputed that the plaintiff tendered any amount to them. It was further contended that as the notices were sent on 11-2-1974 i. e. in the month of Falgun. After the expiry of the contractual period, they were not bound to reconvey of the property.

6. Tee learned trial court inter alia held that the plaintiffs did not tender the amount during the stipulated period and thus no decree for specific performance of contract could be executed.

7. The plaintiff has preferred this appeal against the aforementioned judgment and decree. This first appeal was disposed of by a learned Single Judge of this Court by a judgment dated 22nd September, 1987.

8. From a perusal of the said judgment, it appears that before the learned Single Judge only the following contentions were raised:

(i) The finding of the learned Sub-Judge that the plaintiff has not tendered the money in Magh 1973 or 1974 is not correct.

(ii) That time was not the essence of the contract and when there was no issue on this point and no opportunity was given to the parties to lead evidence, the finding should not have been given by the trial court.

9. The learned Single Judge dismissed the plaintiffs appeal. A Letters Patent appeal was preferred by the appellant against the said judgment and a Division Bench allowed the said Letters Patent appeal and remitted the matter back to this Court with the following directions:

The first appeal court, which was the court of fact, should have decided as to whether, in the facts and circumstances of the case, there was readiness and willingness on the part of the appellant on the basis there was sufficient averment.

In that view of the matter, the appeal is allowed. The judgment of the appeal court is set aside the matter is remanded back to the appeal court for consideration of the matter afresh on the point indicated above.

10. Thereafter the matter appears to have put up before a learned Single Judge of this Court. By an order dated 5-8-1992 the first appeal was directed to be heard on 31-8-1992. However, in the meanwhile, the plaintiff filed an application for amendment of the plaint in terms whereof the following words were to be inserted, at the end of paragraph 4 of the plaint, "plaintiff has thus been all along and is still ready and