Plaintiffs must prove readiness and willingness to perform contractual obligations to succeed in specific performance claims.

CAV ORDER

Per Narendra Kumar Vyas, Judge

1. This First Appeal has been preferred by the appellant/plaintiff against the judgment and decree dated 11.03.2019 passed by 4^th Additional District Judge, Durg, District Durg in Civil Suit No. 1236729-A/2013 (Suresh Kejriwal v. Heerabai and others) by which suit filed by the plaintiff has been dismissed.

2. The parties have been described as per their status before the Trial Court.

3. The brief facts of the case are that an agreement dated 07.09.2011 was executed between the appellant/plaintiff and deceased Mangal Prasad Nirmalkar for sale of land bearing khasra No. 220/1 area 0.506 hectare and khasra No. 221 area 0.595 hectare situated at village- Jamul Patwari Halka No. 13/18, Revenue Circle- Durg -1 Tehsil and District Durg for sale consideration of Rs. 6,00,000/- per acre which was not executed by the defendant therefore, the plaintiff has filed a civil suit for specific performance of contract before the learned Second Additional District Judge, Durg which was registered as Civil Suit No. 1236729A/2013 mainly contending that :-

A. As per agreement dated 07.09.2011 the plaintiff has given an advance of Rs. 3,00,000/- to the defendant and the sale-deed was to be executed upto 12.12.2012 but it could not be materialized due to financial consideration up to March, 2012. Thereafter, the plaintiff has contacted the defendant No. 1 in the month of June, 2012 but he has not executed the sale deed on the pretext that his father is not well and also due to some personal difficulties. The defendant has also demanded money from the plaintiff and when plaintiff demanded his money he used to abuse him. It has also been contended that the deceased Rikhiram at the time of execution of the agreement has handed over the Rin Pustika to the plaintiff for execution of sale deed which was demanded by the defendants as they threatened the plaintiff that they will execute sale deed with other person. Thereafter, the plaintiff has sent a legal notice on 19.06.2012 for execution of sale deed but it has not been replied by defendants.

B. The plaintiff has also served notice though paper publication restraining the defendants to execute the sale deed on 23.06.2012. Then, the defendant No. 1 has told him that he will execute the sale deed in favour of the plaintiff upto 12.12.2012 as such there is no justification for publication of the notice in the newspaper tarnishing his reputation in the village, but he has not fulfilled his words and has not performed his part of contract which has necessitated the plaintiff to file the suit for specific performance of the contract. The plaintiff has also filed an application under Order 39 Rule 1 & 2 of the C.P.C. which was rejected by the learned trial Court.

4. During pendency of the suit, son of original defendant expired and the present defendants have been arrayed as defendants to the case. The defendants have filed written statement denying the allegations made in the plaint mainly contending that they have not received any amount from the plaintiff and also denied regarding execution of any agreement between deceased and defendant and publication of notice was also denied. It is specifically denied that rin pustika is with the plaintiff and prayed for dismissal of the suit. It has also been contended that the plaintiff has not pleaded that he was ready and willing to perform his part of contract which is essential ingredient to succeed in the suit for specific performance of contract and thus would pray for dismissal of the suit.

5. On pleadings of the parties and material on record, learned trial Court has framed two issues which read as under:

6. The plaintiff to substantiate his case has