JUDGMENT:

S.B. SINHA, J :

Leave granted.

1. Defendants in the Court below are the appellants before us. They are heirs and legal representatives of one Gurcharan Singh. He was the owner of the lands bearing Survey Nos. 101, 102, 159, 38, 85, Khatauni Nos. 118, 119, 224, 228, 45, 100 admeasuring 98 canals 19 marlas situated in Village Bora Walli, Tehsil Zira in the State of Punjab. He entered into an agreement for sale of the aforementioned lands on or about 5.10.1964 with the plaintiff- respondent A registered deed of sale was to be executed in terms thereof on or before 15.6.1965. Indisputably, the respondent paid a sum of Rs. 7,000/- out of a total consideration of Rs. 15,000/- to the said Gurcharan Singh on 5.10.1964. He died on 13.3.1965.

2. Allegedly, prior thereto, the said Gurcharan Singh despite having been called upon to execute and register the document did not come to the Registration Office. A suit for specific performance of the agreement was filed against the appellants on 25.3.1966. In the alternative, it was prayed that a sum of Rs. 7,000/- be paid to the respondent together with interest.

3. Appellants herein in their written statement denied and disputed execution of the said agreement by Gurcharan Singh alleging that he was a drunkard. It was also alleged that Gurcharan Singh had executed a Will in their favour. In terms of a stipulation contained in the said agreement dated 5.10.1964 the possession of the lands was delivered to the vendee.

The said suit was decreed on 31.5.1966.

4. Appellants preferred an appeal thereagainst. By a judgment and order dated 20.10.1976, the said appeal was allowed and the suit was remanded to the Trial Court for a fresh decision.

5. First respondent filed an application for amendment of plaint changing the area of the land from 98 canals, 19 marlas to 89 canals, 17 marlas. Appellant in response to the said application, although admitted the relationship between the parties, but without making any specific averments stated that as to why the said application should not be allowed merely "other amendments are opposed". Appellants also filed a suit against the first respondent for recovery of possession on 19.12.1977.

6. Respondent No. 1 filed another application for amendment whereby the area of the suit land was amended to 94 canals 3 marlas.

7. Both the suits were heard together. The learned Trial Judge, refused to grant a decree for specific performance of the agreement of sale, but decreed the suit in favour of respondent No. 1 granting his alternative prayer for recovery for a sum of Rs. 8,260/- from the appellants herein. In arriving at the said conclusion, the learned Trial Judge noticed the averments made in the plaint which are as under:-

"The plaintiff has been and is ready to perform his part of the contract. The plaintiff served a notice on Shrimati Prithpal Kaur for herself on behalf of her minor sons and daughter who are defendants through his counsel on 8.6.65 intimating her about the above contract. Defendant No. 2 Shrimati Prithpal Kaur refused to take delivery of the notice. The notice is attached therewith."

Opining that the requirements to make averments in regard to readiness and willingness on the part of vendee to perform his part of contract as contained in clause (c) of Section 16 of the Specific Relief Act, had not been satisfied, it was held:- "The language of paras Nos. 3 and 5 of plaint will show that the plaintiff has averred that he is ready to perform his part of the contract, but he has failed to aver that he has always been also wiling to perform his part of the contract."

8. An appeal was preferred thereagainst by the respondent No. 1 which was marked as Civil Appeal No. 32 of 1978.

9. The First Appellate Court disagreed with the findings of the learned Trial Judge as regards readiness and willingness on the part of the first respondent to perform his part of contract holding that such a strict construction of the pleading are not warranted.