Back
IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
DEVASHIS BARUAH
On The Death Of Birendra Kumar Saikia, His Legal Heirs Namely- Mrs Pranati Saikia – Appellant
Versus
Ajit Chandra Bora, S/o. Late Milaram Bora – Respondent
JUDGMENT :
DEVASHIS BARUAH, J.
Heard Mr. A. Dhar, the learned counsel appearing on behalf of the appellants and Mr. C. Goswami, the learned counsel appearing on behalf of the respondent.
2. This is an appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for short ‘the Code’) challenging the judgment and decree dated 19.05.2012 passed by the learned Civil Judge and Assistant District Judge, Jorhat (hereinafter referred to as ‘the learned First Appellate Court’) in Title Appeal No.7/2011 whereby the judgment and decree dated 14.02.2011 passed by the learned Munsiff No.2, Jorhat (hereinafter referred to as ‘the learned Trial Court’) in Title Suit No.11/2008 was reversed.
3. It is seen from the records that vide an order dated 04.12.2012, the Coordinate Bench of this Court had admitted the instant appeal by formulating three substantial questions of law. The said three substantial questions of law are reproduced herein under:
“1. Whether the decree passed in a suit for specific performance of an agreement could be enforced which involves injury to the property of a third party?
2. Whether demanding refund and acceptance of advance money of an agreement vitiate “willingness” o
Proof of sale agreement and advance insufficient for specific performance without continuous readiness and willingness under Section 16(c); denying contract precludes forfeiture; additional appellate....
Time is of the essence in specific performance agreements; the plaintiff must prove readiness and willingness to execute the contract, which was not established in this case.
(1) Though, principle that time is not essence of contract in a suit for specific performance of immovable property deserves its consideration in appropriate cases, said principle cannot be applied a....
The burden of proof lies on the party disputing the validity of a written contract, and the conduct of the parties and the plaintiff's readiness and willingness are essential for specific performance....
The plaintiff's failure to file the suit within the limitation period and to prove readiness and willingness to perform the contract resulted in dismissal of the specific performance claim.
The plaintiff must demonstrate continuous readiness and willingness to perform a contract for specific performance; failure to do so justifies dismissal of the suit.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
