IMPORTANT POINT
In a suit for specific performance, the plaintiff must prove readiness and willingness to perform the contract, which was not established in this case.

JUDGMENT :

Rajnish Kumar, J.

1. Heard, Shri G.S. Srivastava, Advocate holding brief of Shri Ashok Kumar Srivastava, learned counsel for the appellants and Sri Sharad Pathak, learned counsel for the respondents.

2. This second appeal under Section 100 of the Civil Procedure Code, 1908 (here-in-after referred as C.P.C.) has been filed assailing the judgment and decree dated 10.11.1987 passed in Regular Suit No.111 of 1984 (Shiv Nayak (dead) and Others Vs. Shiv Dularey (dead) and others) by the First Additional Civil Judge, Raibareli and judgment and decree dated 27.02.2023 passed in Civil Appeal No.11 of 1991 (Shiv Dularey (Dead) and Others Vs. Shiv Nayak (Dead) and Others) by the First Additional District Judge, Raibareli.

3. Learned counsel for the defendant-appellants, while assailing the two judgments passed by the courts below, submitted that the trial court in a suit for specific performance of contract failed to frame the specific issue regarding readiness and willingness in terms of Section 16 (c) of The Specific Relief Act, 1963 (here-in-after referred as the Act of 1963). Even the lower appellate court ignored the aforesaid aspect and decided the appeal without framing points of determination, therefore, the appellants had filed Second Appeal No.205 of 1992 before this Court, which was allowed by means of the judgment and order dated 09.05.2022, whereby this Court had remanded the matter to the lower appellate court directing it to frame points of consideration and thereafter decide the appeal on merits. It was further argued that the lower appellate court despite the clear order of this Court, though, framed the points for determination but decided the case on the basis of already existing evidence and did not permit the parties to lead fresh evidence which is in violation of Order-41, Rule-25 C.P.C. apart from the fact that the opportunity of hearing has been lost to the appellant.

4. Learned counsel for the appellant had further submitted that the issue of readiness and willingness is absolutely imperative and without its compliance, the suit for specific performance of contract could not have been decreed apart from the fact that the defendant-appellants had also raised an objection that the agreement was an outcome of fraud. But no replication was filed. No evidence of payment of advance of Rs.200/- was adduced. Even otherwise, since the date of receipt of advance 06.10.1982 was mentioned in the plaint, therefore, without amendment in the plaint no evidence could have been adduced and accepted by the courts below contrary to the pleadings. He further submitted that the PW-2 has denied the payment of advance. PW-3 has also stated that the advance was not paid before him. The readiness and willingness has not been proved by any of the witnesses with the evidence of financial capacity of the plaintiff-respondents. There is also no correspondence in this regard prior to the notice and the notice was also not served and it was not in accordance with law.

5. He further submitted that even after remand, the provisions of Order 14 C.P.C. have not been complied and the impugned judgment and decree has been passed by the learned lower appellate court in violation of Order-41, Rule-25 C.P.C. without framing of the issue of readiness and willingness and proof thereof with the financial capacity, therefore, the decree for specific performance of contract could not have been passed. Thus, the learned counsel for the defendant-appellants submitted that the impugned judgment and decrees are not sustainable in the eyes of law and liable to be set-aside and the suit filed by the plaintiff-respondents is liable to be dismissed with cost.

6. Per contra, learned counsel for the plaintiff-respondents submitted that the predecessor-in-interest of the defendant-appellants had entered into an agreement for sale and executed the registered agreement after receiving advance of Rs.200/- out of the agreed sale consideration of Rs.50,000/-. The sale