A respondent may challenge adverse findings in an appeal without a formal cross-objection if the decree remains unchanged. Furthermore, a claimant seeking specific performance must provide clear, cogent evidence of continuous financial capacity and willingness to perform the contract to succeed under the relevant statutory provisions.

JUDGMENT :

Sanjay Dwivedi, J.

This appeal under Section 96 of Code of Civil Procedure, 1908 (in short ‘CPC’) has been filed challenging the impugned judgment and decree passed by the Trial Court on 24.10.1997 in Civil Suit No.25-A/1996 filed by the present appellants against the defendants/respondents for seeking decree of specific performance of contract. The suit was dismissed by the Court on the ground that the plaintiffs failed to prove readiness and willingness to perform the contract and pay the remaining amount of sale consideration but granted decree of permanent injunction restraining defendants from dispossessing the plaintiffs from the disputed property without obtaining a decree of possession or eviction.

2. The appeal has been preferred by the plaintiffs/appellants challenging the findings given by the trial Court against them that they failed to prove their readiness and willingness to perform the contract and claimed that the suit be decreed in toto because the Court below has found that the agreement dated 27.11.1983 was a valid one and Rs.60,735/- was paid by the plaintiffs to the defendant/respondent No.1.

3. No one has appeared on behalf of defendant/respondent No.1.

4. Shri Ravish Agrawal, learned senior counsel appearing for respondent No.2 not only opposed the submissions made by learned counsel for the appellants but has also challenged the findings given by the Court below in favour of plaintiffs in respect of validity of agreement dated 27.11.1983 and also challenged the decree of permanent injunction granted in favour of the plaintiffs/appellants.

5. As per the facts of the case, a suit has been filed by the plaintiffs/appellants against the defendants for seeking decree of specific performance of contract stating therein that on 27.11.1983, the defendant/responded No.1 entered into an agreement for selling her land that is 21 ft. x 71 ft. and 10 ft. x 40 ft. to the plaintiffs who are the tenants in the suit premise and possessing the land for the past 40 years and therefore, defendant/responded No.1 agreed to sell the land to the plaintiffs taking Rs.60,000/- in advance out of the total sale consideration of Rs.1,60,735/-. As per the agreement, the sale was to be executed within 12 years from the date of agreement by paying remaining amount of the sale consideration i.e. Rs.1,00,735/- and after selling the land, the plaintiffs would not be treated as tenant of defendant/respondent No.1. It is mentioned in the plaint that the plaintiffs were ready to pay the amount of Rs.1,00,735/- and to get the sale deed registered on their expenses but defendant No.1 was dilly-dallying to perform her part and not showing willingness to get the sale deed executed and as such suit has been filed for seeking decree of specific performance of contract.

6. The defendant/respondent No.1 remained ex parte and did not file any written statement. However, defendant/respondent No.2 filed her written statement denying the execution of agreement dated 27.11.1983 by defendant No.1 and also stated that the said agreement is a forged and fabricated document and the same was prepared with a fraudulent intention so as to execute the agreement between defendant No.1 and defendant No.2 on 25.12.1983 whereunder defendant No.1 agreed to sell the land i.e. 21 ft. x 71 ft. on an amount of Rs.1,00,000/- and out of whi