Specific performance requires plaint averment and proof of plaintiff's continuous readiness and willingness to perform contract; appellate court may enforce mandatory provision suo motu; discretionary relief denied if causing defendant hardship from property escalation.

JUDGMENT :

Heard Mr. Din Bandhu Singh, learned counsel for the appellant assisted by Mr. Satyadeo Kumar and Mr. Yogendra Prasad, learned counsel for the respondents in both the appeals.

2. Both Second Appeal have been filed under Section 100 of the Code of Civil Procedure (hereinafter read as “CPC”) by the appellant/respondent/plaintiffs against the judgment dated 16.04.1992 and decree dated 20.04.1992 passed by learned Additional District Judge, Buxar, whereby and where under the learned Appellate Court in Title Appeal Nos. 04 of 1978 and 05 of 1978 set asides the judgment and decree dated 17.12.1977 passed in Title Suit Nos. 32 of 1968 and 30 of 1968 by learned Munsif-I, Buxar.

3. Following, substantial questions of law have been formulated for determination: -

(i). Whether the appellate Court could have framed issue for decision of the appeal which does not arise out of pleadings and the decision arrived at by the appellate Court can be sustained?

(ii) Whether when there is no pleading as to how the suit was maintainable and issue regarding maintainability have been framed and decided by the appellate Court setting aside the Judgment and decree of the trial Court without assigning other reason on merit and evidence?

4. The respondents herein were the appellants/defendants before the learned appellate Court and learned trial Court and the appellants here in were respondents/plaintiffs. The appellants/respondents/plaintiffs filed Title Suit Nos. 32 of 1968 and 30 of 1968 for Specific Performance of Contract which was decreed vide judgment and decree dated 17.12.1977 passed by learned Munsif, Buxar. Being aggrieved, the respondents/appellants/defendants filed Title Appeal No. 04 of 1978 and 05 of 1978 which was allowed by the Additional District Judge, Buxar, vide judgment dated 16.04.1992 and decree dated 20.04.1992. Hence, the present Second Appeal has been filed by the appellants/respondents/plaintiffs.

5. In order to gauge the matter in its correct perspective, it is necessary to briefly re-state what the suit entails. The appellants/respondents/plaintiffs filed Title Suit No. 32 of 1968 and 30 of 1968 for Specific Performance of Contract in respect to the lands appertaining to C.S. Khata No. 75 and described in Schedule I of both the plaint for a direction to the defendant to execute the sale deed in favour of the plaintiffs on receipt of the balance consideration money and in the event of non-execution the same should be executed through the process of the Court.

6. The case of the plaintiffs was that defendant was in need of money and entered into an agreement to sale of schedule I property of the plaint for a consideration of Rs. 5,000/- and executed an agreement for sale on 10.04.1966 after taking Rs. 500/-as advance and agreed to pay the rest Rs. 4500/- at the time of execution of the deed. Therefore, the plaintiffs prayed for the decree for specific performance of contract for sale. The defendant has denied having entered into any agreement for sale nor he has taken Rs. 500/- as an advance for the execution of the sale deed. According to the defendant, he was in need of the money to purchase a land in village Babuganj English and for that purpose he had taken a l