IMPORTANT POINT
In a suit for specific performance, the plaintiff must prove continuous readiness and willingness to perform the contract, supported by evidence of ownership and financial capability.

JUDGMENT :

NARESH KUMAR CHANDRAVANSHI, J.

1. This First Appeal has been filed under Section 96 of the Code of Civil Procedure, 1908 (henceforth “CPC”) against the impugned judgment and decree dated 29.01.2008 passed by the 2nd Upper District Judge (F.T.C.) Janjgir, District Janjgir-Champa (C.G.) in Civil Suit No. 36-A/2007, whereby the suit filed by the appellant for specific performance of contract, has been dismissed by the learned trial Court.

(Hereinafter parties shall be referred as per their status before the trial Court)

2. Facts of the case in brief are that, suit for specific performance of contract was filed by the plaintiff before the trial Court, pleading inter alia that, original defendant/Chhatram Yadav had entered into the contract to sell out his suit land bearing Khasra No. 26/1 area 1.00 acre and Khasra No. 16/1 area 0.26 acre with the plaintiff, after receiving the advance amount, he executed ‘Mahadanama-Bikripatra’ on 30.06.2003 in favour of the plaintiff. Subsequently, defendant also received some part of the consideration. But ultimately, he refused to execute the sale deed in favour of the plaintiff, therefore, plaintiff filed civil suit for specific performance of contract to get registered sale deed in his favour.

3. Despite service of notice, defendant Chhatram Yadav neither entered his appearance before the learned trial Court, nor filed written statement, hence, ex-parte proceeding was done against him. Defendant No. 2 is said to be formal party in the suit.

4. On the basis of pleading of plaintiff, learned trial Court framed as many as 7 issues. After providing opportunity to the plaintiff to adduce the evidence. After considering the evidence, vide impugned judgment and decree dated 29.01.2008, learned trial Court has held that, although agreement to sell of suit land was made by the defendant/Chhatram Yadav with plaintiff, but plaintiff has failed to prove his readiness and willingness, therefore, learned trial Court had declined to grant decree in respect of execution of sale deed in favour of the plaintiff, rather it held that plaintiff is entitled to get back advance amount of Rs.38,680/- from defendant/Chhatram Yadav along with interest of 9% per annum. Being aggrieved and dissatisfied from the judgment and decree, plaintiff preferred the instant appeal.

5. Learned counsel for the appellant would submit that, learned trial Court has held to prove that, agreement to sell Ex.P/1 of suit land was executed by defendant Chhatram Yadav by receiving advance amount of Rs.10,000/- on 30.06.2003 at the time of agreement and subsequent to execution of agreement to sell, he received Rs.10,000/- on 11.09.2003 and Rs.5,000/- on 19.02.2004. Thereafter, he requested plaintiff to deposit his remaining loan amount of Rs.13,680/- in the Raipur Chetriye Gramin Bank, Branch Nariyara, which was deposited by plaintiff’s brother under his instruction. Thus, in this way he received total Rs.38,680/- from the plaintiff, as advance amount in respect of the aforesaid agreement to sell, despite that, learned trial Court has held that, plaintiff has failed to prove his readiness and willingness in respect of the performance of his part of contract, whereas plaintiff has not only pleaded, but also proved by adducing oral and documentary evidence that, he was always ready and willing to perform his part of contract. In this regard, plaintiff had also sent legal notice vide Ex.P/3 to the defendant, even then, learned trial Court has dismissed the suit, which is against the law and evidence, available on record. Therefore, it is prayed that appeal may be allowed by setting aside the judgment and decree passed by the learned trial Court and decree may be granted in favour of the appellant/plaintiff.

6. Per Contra, learned counsel for the respondents would submit that, alleged agreement was executed by original defendant/Chhatram Yadav, who has died. He further submits that during the pendency of civil suit, Chhatram Yadav had sold the