ORAL ORDER

1. The present First Appeal is filed challenging the impugned judgment and order dated 28.02.2017 passed by the learned Additional Senior Civil Judge, Anand in Special Civil Suit No.73 of 2015 whereby the learned Trial Court has dismissed the suit of specific performance of the contract dated 17.11.2014 preferred by the appellant herein.

2. It is the case of the appellant that the respondent had agreed to sell the suit property bearing City Survey No.3/4117 paiki southern side for Rs.16,21,000/- by an agreement to sale dated 17.10.2014 and part purchase money of Rs.1,21,000/-

was also paid to the respondent by the appellant.

3. It is further the case of the appellant that when the respondent was postponing the execution of the sale deed, he issued notice dated 16.03.2015 calling upon him to complete the contract and execute the sale deed by accepting the remaining amount of consideration. By his reply to the notice dated 16.03.2015, the respondent herein gave a reply stating that the agreement to sale was cancelled in presence of two persons namely, Sanjaybhai and Idrishbhai and further informed the appellant herein to take back the earnest money paid to the respondent.

4. Aggrieved the appellant herein, filed a suit, being Special Civil Suit No.73 of 2015 in the Court of Senior Civil Judge, Anand praying for specific performance of the contract dated 7.11.2014 executed between the parties. The respondent herein did not appear in the suit and right of the respondent to contest/ defend the suit came to be closed vide order dated 05.03.2016 by the learned Trial Court.

5. By the impugned judgment dated 28.02.2017, the learned Trial Court was pleased to dismiss the suit holding that the appellant-plaintiff herein could not prove his case since he has not examined the two witnesses mentioned in the reply to the notice by the respondent before whom the contract was alleged to have been cancelled.

6. Aggrieved the appellant herein, has preferred the present First Appeal.

7. Vide order dated 19.11.2018, this Court was pleased to pass the following order:

“1. Admit. Heard learned advocate Mr.Jinesh H. Kapadia appearing for the appellant. Mr.Jainish P. Shah, learned advocate appearing for the respondent was absent, when the matter was called out.

2. It is submitted by learned advocate for the appellant that the plaintiff was ready and willing to perform his part in executing the sale deed. He had paid earnest money of Rs.1,21,000/- on 17.11.2014 and the sale deed was to be executed by the defendant on or before 30.04.2015 for clearing the title of the suit premises.

3. Before expiry of the date, as per the agreement of sale deed i.e. 30.04.2015, a notice was issued by the appellant on 16.03.2015 calling upon the defendant to clear the title of the suit premises and execute sale deed in favour of the plaintiff by accepting the remaining amount of consideration. That, the reply to the notice at Exhibit 32 was given by the defendant raising contention that in presence of two persons i.e. Sanjaybhai and Idrishbhai, an agreement to sale was cancelled and earnest money paid by the plaintiff was demanded return.

4. That, the trial Court has committed grave error in holding that the said witnesses; Sanjaybhai and Idrishbhai as shown by the defendant in his reply to the notice, were not examined by the plaintiff to prove the contention raised in the reply. It is further submitted that it was never the duty of plaintiff to prove the contention raised in reply to the notice. The plaintiff was, however, ready and willing to perform his part as per the contract dated 17.11.2014 i.e. agreement to sale and the trial Court has wrongly dismissed suit of the plaintiff.

5. Considering the issue involved in the Appeal, let this Appeal be listed for final hearing on 17.12.2018.”

8. Today, the matter has come up for final hearing. Heard Mr.J.H. Kapadia, learned advocate for the appellant and Mr.Jainish P. Shah, learned advocate for the respondent.

9. Mr.Kapadia