Kailash Gambhir, J.:—

By this application filed under Order 14 Rule 2(2) (b) moved by defendant nos. 1 to 4, they seek direction to treat issue no. 7 as a preliminary issue.

Addressing arguments on this application, Mr. Amit Chadha, learned Senior Advocate appearing for the defendant nos.1 to 4 submit that vide order dated 9.12.2005, this Court had framed the issues arising out of the pleadings of the parties and one of the issues framed was issue no. 7, onus of which was placed on the plaintiff to prove that the plaintiff was always ready and willing to perform its part of the contract. Counsel also submits that under Section 16 (c) of the Specific Relief Act 1963, the plaintiff has not merely to plead but prove the said fact in evidence that he has always been ready and willing to perform the contract. Counsel further submits that since in the present case, plaintiff has failed to prove issue no. 7 and on its failure to lead any evidence on the said issue, therefore, the plaintiff as per the mandate of Section 16 (c) of the Specific Relief Act 1963, would fail in the present suit on this sole ground. Counsel for the defendants also submit that on the failure of the plaint