The main legal point established in the judgment is that the discretion to decree specific performance is guided by judicial principles and the court may properly exercise discretion to decree specific performance when the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.

Pramod Kumar Srivastava, J.

This second appeal has been preferred against the judgment of the Court of Civil Judge (S.D.), Azamgarh in original suit No. 105/2000 and judgment dated 04.02.2016 of the Additional District Judge, Court No.-8, Azamgarh in Civil Appeal No. 120/2013.

2. Original suit No. 105/2000 (Naseeran Bibi v. Gopal Ji) was filed for specific performance of contract. The plaint case in brief was that registered agreement to sell dated 25.04.1997 was executed between the parties, by which defendant Gopal Ji had agreed to sell his property in question to plaintiff Smt. Naseeran Bibi for a consideration of Rs. 3,00,000/- and had received advance consideration of Rs. 2,00,000/-. It was agreed that defendant will execute the sale-deed of this property to plaintiff within one year. But later on, defendant had not executed the sale-deed in spite of reminder, then plaintiff had sent her legal notice dated 16.03.2000 and also orally requested. The plaintiff has been ready and willing to perform his part of contract by paying remaining consideration for getting the sale-deed executed but defendant was not willing to perform her part of contract, therefore, plaintiff had filed suit on 22.04.2000 for specific performance of aforesaid registered agreement for sale.

3. Defendant Gopal Ji had filed written-statement in original suit, by which this plaint case was admitted that registered agreement to sell dated 25.04.1997 was executed between the parties, by which defendant had agreed to sell his property to plaintiff for a consideration of Rs. 3,00,000/- and had received advance consideration of Rs. 2,00,000/-, and that it was agreed that defendant will execute the sale-deed of this property to plaintiff within one year. It was further pleaded that it was mentioned in said agreement that if sale-deed will not be executed within one year then plaintiff will not be entitled to get it executed and his advance consideration amount would be confiscated. The plaintiff was not ready or willing to perform his part of contract, so he gave legal notice after two years. Suit is time barred and is liable to be dismissed.

4. After framing issues, accepting evidences and affording opportunity of hearing to parties, the Court of Civil Judge (Senior Division), Azamgarh had decreed the original suit by its judgment dated 07.05.2013 and directed the defendant to receive remaining consideration from plaintiff and execute the sale-deed of disputed property, failing which plaintiff would be entitled to get the sale-deed executed through court. In this judgment the trial court had appreciated the evidences and contentions of the parties and had also given finding that the plaintiff has been ready and willing to perform is part of contract regarding execution of sale-deed, which is proved from evidences, and also that in this transaction the time was not essence of the contract. On the basis of these findings, trial court had decreed the original suit.

5. Against the judgment of trial court, Civil Appeal No. 120/2013 (Gopal Ji v. Naseeran Bibi) was preferred by defendant of the original suit. This appeal was heard and dismissed by the judgment dated 04.02.2016 of the Additional District Judge, Court No.-8, Azamgarh. In this judgment the first appellate court had framed the point of determination on two point; firstly as to whether the time was essence of the contract, and secondly as to whether the plaintiff has been ready and willing to perform his part of contract. Lower appellate court had decided these points in favour of plaintiff-respondent and against defendant-appellant.

6, 7. Aggrieved by the judgments of the trial court as well as the first appellate court, present second appeal has been preferred by the defendant of the original suit.

8, 9. Learned counsel for the plaintiff-appellant contended that, in fact, the plaintiff was not ready or willing to perform his part of contract, so he gave legal notice after two years in this matter wh