JUDGMENT :- This is a defendants' appeal against the judgement dated 14-10-1970 of the Civil Judge, Azamgarh, dismissing the appellants' appeal and upholding the trial court's judgement decreeing the plaintiff-respondent's suit for specific performance of a contract entered into between the plaintiff and defendant-respondent No. 2.

2. The relevant facts, as recorded by the courts below, are that defendant No. 1 Brij Behari Rai and the plaintiff, namely, Rajdeva Rai entered into the agreement (Ex. 1) dated 21-2-1964 under which Brij Behari agreed to sell the property described in the plaint to the plaintiff for Rs, 1,000/- within six months and was paid Rs. 400/- by the plaintiff as earnest money. It was further agreed upon that the balance shall be paid at the time of registration of the sale-deed. Ultimately, defendant No. 1. Brij Behari Rai sold the property by the deed dated 24-7-1965 to the appellants who were arrayed as defendants Nos. 2 and 3. It has also been found that defendants Nos. 2 and 3 were not bona fide purchasers as they were aware of the agreement (Ex. 1) between the plaintiff and defendant No. 1 when the appellants purchased the property in 1965.

3. It may be mentioned that in the plaint the plaintiff did not specifically plead or aver that he had been and was still ready and willing to perform his part of the agreement though he did plead in paragraph 6 of the plaint that he had been approaching defendant No. 1 regularly with the request that defendant No. 1 should execute the sale-deed and get it registered thereby performing the contract of sale but the defendant avoided doing so. Defendant No. 1, on the other hand, pleaded in his written statement that after the agreement (Ex. 1) was entered into, he approached the plaintiff to carry out his part of the contract as the defendant was urgently in need of money but the plaintiff avoided getting the sale-deed executed by the defendant and, therefore, the defendant executed the sale-deed in favour of defendants Nos. 2 and 3, the appellants before this Court.

4. No issue was framed by the trial Court on the question as to whether the plaintiff was willing at all times to perform his part of toe contract and this question was also not entered into by the lower appellate Court. It may be mentioned, however, that the trial Court did record a finding that the allegations made by defendant No. 1 about his having approached the plaintiff to carry out his part of the agreement and to have the sale-deed executed, were not the that defendant No. 1 failed to prove the: same. In the trial Court the only questions decided were whether the plaintiff and defendant No. 1 had entered into the agreement (Ex. 1) and whether the appellants were bona fide purchasers for value.

5. The learned counsel for the appellants argued that in view of Section 16(c) of the Specific Relief Act and Forms Nos. 47 and 48 of Appendix 'A' of the First Schedule of the Code of Civil Procedure, it was incumbent on the plaintiff not only to have averred that the defendant refused to carry out his part of the contract but the plaintiff bad also to specifically plead :

"The plaintiff has been and still is ready and willing specifically to perform the agreement on his part of which the defendant has had notice."

(Vide paragraph 3 of Form No. 47 of the First Schedule of the Code of Civil Procedure).

In support of this contention the attention of the Court was drawn to the observations made by the Supreme Court in Ouseph Varghese v. Joseph Aley, 1969-2 SCC 539. In paragraph 9 of the said judgement the Supreme Court observed :

"......... A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the First Schedule in the Civil Procedure Code. In a suit for specific performance it is incumbent on the plaintiff not only to set out agreement on the basis of which he sues in all its details, he must go further and plead that he has applied to the defendant specifically