Plea of readiness and willing non not raised before trial court.

S. Jagadeesan, J.

1. The legal-heirs of the defendant in O.S.No.1 16 of 1981 on the file of the First Additional Subordinate Judge, Pondicherry are the appellants herein.

2. Thepredecessor in title of the respondents herein laid the said suit for specific performance on the basis of the agreement entered into between one Subramaniam, S/o Natesa Pillai - the plaintiff with one Rajeswari - the predecessor in interest of the appellants herein on 20.11.1978. On the date of the agreement, a sum of Rs.10,000 was paid as an advance to the defendant in the suit. Subsequent to the suit agreement, the said Subramaniam, the son of the plaintiff died and hence, the plaintiff filed the suit to enforce the agreement seeking specific performance.

3. In the written statement, a plea was raised that the time is essence of the contract and there is no privity of contract between the plaintiff - the father of the said Subramaniam - the agreement holder and the defendant and as such, the suit agreement cannot be enforced.

4. Onthe above pleadings, the Subordinate Judge framed the following issues:

(i) Whether the plaintiff is entitled to the specific performance as prayed for in the plaint? and

(ii) Whether the plaintiff is entitled to permanent injunction restraining the defendant from dealing with the suit property in any manner of the suit property? To what other relief the plaintiff is entitled to?

5. Having framed the above issues, the learned trial Judge, after considering the oral as well as the documentary evidence let in by both the parties, found that the plaintiff-the father of the agreement holder is entitled for the specific performance of the suit agreement and ultimately decreed the suit as prayed by his judgment and decree dated 3.8.1983.

6. Aggrieved by the judgment and decree of the trial Court, the defendant filed an appeal in A.S.No.737 of 1983 on the file of this Court. The learned Single Judge framed the following questions for consideration for the disposal of the appeal:

(i) Whether the plaintiff is entitled for the specific performance prayed for in the plaint? and

(ii) Whether the plaintiff is entitled for the permanent injunction restraining the defendant from dealing with the suit property in any manner?

7. Thelearned Single Judge, after considering the evidence elaborately, concurred with the findings of the trial Court and dismissed the appeal by his judgment and decree dated 20.9.2001, against which, the present appeal has been filed.

8. Mr.R.Gandhi, learned senior counsel for the appellants vehemently contended that there is no averment in the plaint that the plaintiff was ready and willing to perform his part of the contract. Further, there is no privity of contract between the plaintiff and the defendant and as such, the suit is liable to be dismissed and that the plaintiff being the second degree heir of the said Subramaniam the agreement holder, it is not open to him to maintain the suit, especially when class-1 heir -the mother of the agreement holder is alive.

9. We have carefully considered the above contentions of the learned senior counsel for the appellants.

10. From the pleadings, no issues were framed either by the trial Court or by the learned Single Judge with regard to the readiness and willingness of the plaintiff in respect of the performance of his part of the contract. If really such plea has been raised, the parties ought to have insisted for framing of the specific issue with regard to that question. When there is no specific issue with regard to the readiness and willingness on the part of the plaintiff and when there is no discussion, it is not open to the learned senior counsel for the appellants to raise such a plea before this Court.

11. However, a perusal of the judgments of the trial Court as well as the learned Single Judge reveals that the plaintiff alone took some steps to enforce the agreement by obtaining signature from the defendant in order to get no objection f