A plaintiff in a specific performance suit must demonstrate readiness and willingness to perform the contract, and a subsequent purchaser can raise defenses regarding the plaintiff's compliance.

ORDER :

ASHOK KUMAR JAIN, J.

In S.B. Civil Second Appeal No. 307/2024:-

1. The instant second appeal is preferred by appellant-defendant after dismissal of civil regular appeal No.8/2023 by learned District Judge, Sawai Madhopur on 30.05.2024 affirming the judgment and decree dated 31.05.2023 in Civil Suit No.7/2017 passed by learned Civil Judge, Khandar, District Sawai Madhopur.

2. Learned counsel appearing on behalf of appellant-defendant No.2 while relying upon grounds of appeal submitted that the respondent No.1-plaintiff has filed a suit for specific performance and declaration of sale deed in favour of present appellant as null and void and same was decreed by the trial Court without considering that present appellant is a bona fide purchaser and with all due diligence, he cannot track an unregistered agreement to sell allegedly executed by respondent No.2 in favour of respondent No.1. He referred the findings of the Courts below and submitted that no evidence is led about knowledge of present appellant but the defence of present appellant was discarded on the ground that a purchaser is required to remain vigilant. He also submitted that the trial Court has not framed proper issues and which include readiness and willingness of plaintiff while seeking performance of agreement to sell. He submitted that the trial Court and the Appellate Court have relied upon the judgment in case of Jugraj Singh and Another vs. Labh Singh and Others, (1995) 2 SCC 31 which was overruled by a Larger Bench of Hon’ble Supreme Court in case of Ram Awadh (Dead) By Lrs. & Ors. vs. Achbalbar Dubey & Anr., AIR 2000 SC 860. Learned counsel has further placed reliance upon judgment in case of Kadupugotla Varalalkshmi Vs. Vudagiri Venkata Rao & Ors., 2021 (2) Civil Court Cases 219 (S.C.) and Chief Administrator Puda And Another vs Shabnam Virk, AIR 2006 SC 1758. He submitted that the defence of readiness and willingness is also available not only to original vendor but also to subsequent purchaser. He submitted that in a suit for specific performance, subsequent purchaser can plead a defence that a plaintiff was not ready and willing to perform his part of agreement at all material time. He also referred evidence and findings recorded by both the Courts below and submitted that the judgment passed by the Courts below is not only perverse but it has been passed against settled proposition of law. He further referred the judgment in case of Channayya & Anr. Vs. Annapurna, 2006 (2) Civil Court Cases 621 (Karnataka) and submitted that in a suit where a specific issue of readiness and willingness is not framed then decree passed by the trial Court is erroneous and the matter is required to be remitted back. Learned counsel has submitted that now the respondent No.1 has filed an execution petition before the trial Court.

3. Aforesaid contentions were opposed by learned counsel appearing for respondent No.1-plaintiff and he submitted that the issue of readiness and willingness was discussed by both the trial Court and the Appellate Court but in case, a specific issue is not framed then the appellant may point out during trial but he has failed to point out during trial and necessity to frame issue does not give him a ground to raise this issue. He further referred the para No.17 of judgment of trial Court and submitted that the trial Court has not failed in its duty to consider Ex.1 agreement to sell dated 09.01.2017 and readiness and willingness on part of plaintiff. He submitted that the trial Court has concluded that the plaintiff was ready and willing to perform his part of contract, therefore, this issue was decided in favour of plaintiff. He also referred the findings of Appellate Court and submitted that even if the issue is not framed even then discussion on issue Nos.1, 2 and 4 by the Appellate Court makes it clear that readiness and willingness on part of plaintiff was discussed in detail. He also pointed out that respondent No.2-defendant No.1 who was