MODI, J.—This first appeal by the defendant Pakharsingh is directed against the judgment of the Additional District Judge, Sri Ganganagar, decreeing the plaintiffs suit for specific performance of the contract.

2. The defendant-appellant Pakharsingh was the owner of the agricultural land measuring 91/2 bighas situate in village Chak No. 1-KK fully described in para No. 1 of the plaint. By agreement dated 9-4-66 Pakharsingh agreed to sell the said land to the plaintiff for Rs. 13,300/-. On the same day, the defendant received from the plaintiff Rs 8,000/- as earnest money. The salient terms of the agreement are as follows —

(1) That the sale will be completed and registered on or before 25-11-66.

(2) That a further sum of Rs. 1000/- will be paid to the defendant on 25-6-66.

(3) That the registration charges shall be borne by the vendee.

(4) That the remaining sale-price will be paid at the time of the registration of the sale-deed, and

(5) that in case of the defendants failure to get the sale-deed registered, he shall refund Rs. 9000/- and he will be further liable to pay Rs. 9000/- as damages and in case the plaintiff failed to get the sale-deed registered the earnest money of Rs. 9000/- shall stand forfeited.

I may pause to mention here that the plaintiff Kishansingh was already in possession of the land in dispute as tenant of Pakharsingh. The plaintiff paid Rs. 1000/- to the defendant on 29-6-66 in pursuance of the terms of the agreement. As the defendant could not get the land in dispute mutated in his favour by 25-11-66 the parties entered into another agreement on 3-2-1967 by which the time for the registration of the rale-deed was extended upto 28-5 1967 by mutual consent. By the agreement dated 3-2-67 the defendant acknowledged having agreed to sell the land on 9-4-66 and also that he had received Rs. 8000/- on 9-4-66 and Rs. 1000/- on 29-6-66. It was also mentioned in the agreement dated 3-2-67 that in case the defendant did not get the registration of the sale-deed done by 28-5-67 the plaintiff shall be entitled to sue for specific performance of the contract. It was also specifically mentioned in the agreement dated 3-2-67 that other terms of the previous contract shall continue to remain in force. It would thus appear that both the agreements Ex. 1 and Ex. 2 clearly incorporated a default clause imposing a penalty upon the party failing to carry out the terms of the contract. The sale-deed was however not executed and registered on or before the due date, that is, 28-5-67. The aforesaid facts are all admitted and there is no dispute between the parties.

3. Now, the plaintiffs case is that it was Sunday on 28-5-67 and it being a holiday he on 29-5-67 went to the office of the Sub-Registrar and Tehsildar, Padmapur, along with the amount for the purpose of the registration of the sale-deed, but since the defendant was not present there at the said office, he came back to his house after presenting an application Ex. 6 to the Tehsildar Padampur, which was returned to him after an endorsement by the Tehsildar. His further case is that on 2-6-67 he by a registered notice called upon the defendant to execute the sale-deed within 15 days of the receipt of the notice and receive the remaining sale-price from him, but this notice was returned to him with the endorsement refused. The plaintiff filed the present suit for specific performance of the contract on 26-10-67 alleging that he was always ready and willing to perform his part of the contract. The suit was resisted by the defendant. He alleged that on 29-5-67 he waited for the plaintiff at the office of the Sub-Registrar, Padampur, as per the terms of the agreement and when the plaintiff was not found there, he presented an application before the Sub Registrar, Padampur, about his presence at the Registrars Office on 29-5-67. As regard the application alleged to have been presented by the plaintiff before the Tehsildar, Padampur, the defendant pleaded that such application and

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