Haji Arshad Ali vs Md. Samsuddin and Another

Srivastava, J.—This is defendant''s appeal against the judgment and decree dated 29.11.79 passed by the learned Assistant Direct Judge, Karimganj, whereby the defendant''s appeal against the judgment and decree of the learned trial Court dated 15.2.79, was dismissed.

Briefly, the relevant facts giving rise to this appeal are that the defendant No.2 was the owner of the land in suit. He had transferred by sale the said land to the defendant No. 1, the present appellant. There was an agreement between the defendant No. 1 and the defendant No.2 for purchase of the land by the defendant No.2. Subsequently, the plaintiff the respondent No. 1 in this appeal had purchased the right and interest of the defendant No.2 by sale deed dated 16.2.1974. The plaintiff thereupon required the defendant No. 1 to take Rs. 1000/- the agreed value of the suit land and to execute registered sale deed in respect of the said land and to deliver its possession. The defendant No. 1 did not pay any heed to the demand. The plaintiff, therefore, filed the suit for specific performance of the agreement for sale of the land. The defendant No. 1, the present appellant, contested the suit and denied the allegations. The learned trial Court framed necessary issues, and held that the defendant No. 1 had executed the agreement with the defendant No.2 for sale of the land in suit for Rs. 1000/- and that the plaintiff having acquired the right by purchase from the defendant No.2 had the right to enforce the agreement for sale of the land in suit. The learned trial Court decreed the suit. The defendant No. 1 preferred appeal, and the learned appellate Court below by the impugned judgment upheld the finding of the trial Court, and dismissed the appeal.

Aggrieved, the defendant No. 1 has come in appeal, and Sri A.B. Choudhury, learned counsel on his behalf, has fairly not disputed the concurrent finding of facts by the Courts below that the Ext. 1 the agreement had been executed by the defendant appellant for sale of the land in suit and that the plaintiff had the right to enforce the said agreement after having purchased the same from the defendant No.2.

Sri Choudhury, learned counsel for the appellant, has, however, submitted that in the suit for specific performance, the plaintiff had not averred in the plaint that he was ''ready and willing'' to perform his part of the contract, and has relied upon Surendra Chandra Roy v. Baikuntha Chandra Roy, AIR 1973 Gan. 21 , where relying upon, AIR 1928 208 (Privy Council) , affirmed in Gomathinayagam Pillai and Others Vs. Pallaniswami Nadar, , and Prem Raj Vs. D.L.F. Housing and Construction Pvt. Ltd. and Another, , it was held that in a suit for specific performance decree cannot be granted to the plaintiff if he fails to over in the plaint that he was ready and willing to perform his part of the contract. Sri Choudhury has submitted that since the plaintiff did not make the said averment in the pliant, the Courts below were in error in decreeing the suit for specific performance.

While it is true that the plaintiff has not said it in so many words, but in para 4 of the plaint it had been clearly stated that the plaintiff had demanded from the defendant No. 1 to take Rs. 1000/- to towards the value of the suit land as per the agreement and to execute registered sale deed in respect of the suit land but the defendant No. 1 did not pay any heed to the demand. Besides, the plaintiff not only filed the suit but had deposited the entire consideration money of Rs. 1000/- in Court itself, as has been noted by the trial Court below in its judgment dated 15.2.79. The suit was filed on 26.4.75 and vide Ext.3 the challan for Rs. 1000/- the consideration money was deposited on 16.6.85. In my opinion, on the facts of this case where the plaintiff had also deposited the amount of consideration money itself in Court, the plaintiff had clearly demonstrated that he was ready and willing to perform his part of the contract rather he had performed it. In the facts of the present case, therefore, the authority relied upon in my opinion is not attracted.

For the aforesaid reasons, the impugned judgment and decree are sound and correct. This appeal fails and is dismissed. No costs.