The plaintiff must independently prove both 'readiness' and 'willingness' to perform under Section 16(c) of the Specific Relief Act to succeed in a suit for specific performance.

JUDGMENT :

Pankaj Jain, J.

Defendant is in second appeal. For convenience, the parties are being referred to by their original position in the suit i.e. the appellant as defendant and respondent No.1 as plaintiff.

2. Plaintiff filed suit for confirmation of possession by way of specific performance of the agreement to sell dated 12.05.2009 qua land measuring 8 Kanals 6 Marlas agreed to be sold in his favour by the defendant for a valuable consideration of Rs.9,55,656.84/- (Rupees Nine Lakh Fifty Five Thousand Six Hundred & Fifty Six And Eighty Four Paise Only).

2.1. As per plaintiff, the defendant agreed to sell aforesaid land in his favour and executed written agreement to sell dated 12.05.2009. At the time of execution of agreement to sell, earnest money of Rs.2 lakh was paid. Agreement to Sell was scribed by Deed Writer Barjinder Mohan Singh Bedi. The same was attested by two witnesses namely Dheeraj Sharma and Gurdass Ram. It was agreed that defendant shall execute registered sale deed in favour of plaintiff on or before 30.12.2009 on receiving balance sale consideration of Rs.7,55,656.84/- (Rupees Seven Lakh Fifty Five Thousand Six Hundred & Fifty Six And Eighty Four Paise Only). Prior to the agreed date, sons of defendant namely Jagdish Chander, Satish Kumar ad Pardeep Chand got served a legal notice dated 06.10.2009 upon the plaintiff claiming that agreement to sell in question was not binding and that their 93 years old father was mentally incapacitated to enter into agreement to sell. Plaintiff replied to the aforesaid notice controverting the defense of mental incapacity as raised by defendant and further sent notice dated 22.12.2009 to defendant asking them to come present before the Sub-Registrar, Hoshiarpur on 30.12.2009. On 30.12.2009, the plaintiff remained present in the office of Sub-Registrar, Hoshiarpur and also got his affidavit attested as a testimony of his presence, but defendant failed to appear and performed his part of contract.

2.2. Suit was contested by defendant who filed written statement through his attorney. It was claimed that defendant being 93 years old man was suffering from serious loss of memory and was not capable to think properly and thus, agreement to sell in question was misuse of weak mental state of defendant by the plaintiff.

2.3. On the basis of pleadings, the Court of first instance framed following issues:-

1. Whether the plaintiff is entitled for confirmation of possession by way of specific performance of agreement to sell dated 12.5.2009 in respect of the suit property on payment of balance sale-consideration of Rs. 7,55,656-84? OPP.

2. Or in the alternative, whether the plaintiff is entitled to recover Rs. 4 Lakh i.e. Rs. 2 Lakh on account of earnest money and Rs. 2 Lakh on account of damages alongwith interest @ 18% per annum? OPP.

3. Whether the plaintiff was ready and willing and is still ready and willing to perform his part of contract? OPP.

4. Whether the plaintiff is entitled to permanent injunction restraining the defendant from dispossessing the plaintiff as well as from alienating the suit property to any person except the plaintiff? OPP.

5. Whether the suit is not maintainable? OPD.

6. Whether the plaintiff has not come to the court with clean hands? OPD.

6A).Whether the plaintiff has no locus-standi to file the suit against defendant as he never executed alleged agreement to sell dated 12.5.2009 in favour of plaintiff? OPD.

6B). Whether the plaintiff has no cause of action to file the present suit and plaint is therefore liable to be rejected U/o 7 Rule 11 CPC? OPD.

6C).Whether the defendant is entitled to compensatory cost under Section 35-A CPC?OPD.

7. Relief

2.4. Plaintiff examined Deed Writer Barjinder Mo