Shafiulla vs Krishnappa and Others

Ravi V. Malimath, J.—The case of the plaintiff is that the 1st defendant executed an agreement of sale on 11-11-1993 by receiving an advance of Rs. 25,000/- from him, for sale of the property bearing Khatha No. 230/254 measuring East X West 32 1/2 feet and North X South 25 feet situated at Kanampalli Village, Chintamani Taluk, Chinnasandrra Mandal. The total sale consideration was fixed at Rs. 1,42,000/-. It was agreed that the suit schedule property would be sold in favour of the plaintiff. That the sale deed would be executed whenever the plaintiff calls upon the 1st defendant to do so, by paying the balance consideration of Rs. 1,17,000/-. That he has been calling upon the 1st defendant to perform his part of the contract from December, 1993. The plaintiff evaded notice and ultimately refused to execute the sale deed, by stating that he has alienated the suit schedule property in favour of the 2nd defendant on 18-12-1995. That the 2nd defendant has full knowledge of the agreement of sale between him and the 1st defendant. That both the defendants have colluded with one another and executed a sale deed dated 18-12-1995, in order to defeat the legitimate right of the plaintiff. That he was ready and willing to perform his part of the contract by paying the balance consideration. On failure of the 1st defendant to execute the sale deed, the instant suit was filed to direct execution of the registered sale deed in favour of the plaintiff and consequential reliefs. On service of suit summons, the 1st defendant even though served, did not appear before the Court. He was placed exparte. The 2nd defendant filed his written statement denying the plaint averments. It was contended that the 1st defendant was the owner of the suit schedule property. That the 1st defendant sold the suit schedule property in his favour in terms of the registered sale deed dated 18-12-1995 for valuable consideration. Eversince then, he is in physical possession and enjoyment of the same. He has also paid the relevant taxes on the property. The katha has already been changed into his name. It is a frivolous suit with a view to harass him. That there is collusion between the plaintiff and the 1st defendant which is intended only to deprive the legal right of the 2nd defendant. It was denied that the plaintiff was ready & willing to perform his part of the contract.

Based on the pleadings, the trial court framed the following Issues and Additional Issues:--

"1. Whether the plaintiff proves that the 1st defendant has executed an agreement of sale deed dated 11.11.93 agreeing to sell the suit schedule property in his favour for a sale consideration of Rs. 1,42,000/-?

Whether the plaintiff further proves that, on 11.11.93 he paid an amount of Rs. 25,000/- to the 1st defendant?

Whether the plaintiff further proves that he was and is ever willing and ready to perform his part of contract?

Whether the defendant No. 2 proves that the 1st defendant has lost all his rights whatsoever over the schedule property by executing registered sale deed dated 18.12.95?

Whether the plaintiff is entitled for the relief as prayed?

What decree or order?"

Additional Issue:

"1. Whether the plaintiff proves that time was not the essence of contract?"

The plaintiff was examined as P.W. 1 along with 3 other witnesses and Exs. P-1 to 5 were marked. Defendant No. 2 was examined as D.W. 1 along with another witness and 4 documents were marked. Issue Nos. 1, 2, 3 & 5 were held in the affirmative and Issue No. 4 in the negative. Additional Issue No. 1 was held in the affirmative. By the impugned Judgment & decree, the suit of the plaintiff was decreed. Defendant No. 1 was directed to execute the registered sale deed in favour of the plaintiff, by receiving the balance consideration of Rs. 1,17,000/-. Aggrieved by the same, defendant No. 2 has filed this appeal.

Sri Abdul Rayaz Khan, the learned counsel for the appellant contends that the impugned order is bad in law and liable to be set aside. The trial Court failed to consider the material and evidence on record. The trial Court misread the pleadings while wrongly decreeing the suit of the plaintiff. In the absence of pleadings with regard to readiness and willingness, the trial Court committed a blunder in holding the issue in favour of the plaintiff. That when the agreement of sale vide Ex. P-1, clearly narrates that time is the essence of the contract, the trial Court committed a blunder in holding to the contrary. The finding of the trial Court runs contrary to the documents on record. That the trial Court wrongly held that the plaintiff has the capacity to perform his part of the contract even though there is absence of pleadings to the said effect. Hence, he pleads that the appeal be allowed by dismissing the suit.

On the other hand, Sri G.A. Sreekante Gowda, the learned counsel appearing for respondents 2(a) to (c), the plaintiff, defends the impugned order. He contends that the trial Court has rightly passed the impugned order. That the pleadings and the evidence led-in was sufficient for the trial Court to decree the suit. That readiness and willingness has been established by the plaintiff. That time was not the essence of the contract. Hence, he pleads that the appeal be dismissed by upholding the Judgment & decree of the trial Court. The learned counsel for respondents 1(a) to (c) namely, defendant No. 1, is absent.

Heard learned counsels and examined the records. The following points arise for consideration in this appeal:--

"(1) Whether the Judgment & decree of the trial Court is perverse in holding that the plaintiff has proved that he was ready and willing to perform his part of the contract?

(2) Whether the findings recorded by the trial Court is perverse in holding that the time was not the essence of the contract?

(3) Whether the Judgment & decree of the trial Court calls for interference?"

So far as readiness and willingness to perform his part of the contract is concerned, the plaintiff has pleaded that after the execution of the agreement of sale on 11-11-1993, he was always ready and willing to perform his part of the contract. He has been calling upon the 1st defendant to perform his part of the contract right from December, 1993. The defendant did not oblige. The plaintiff who was examined as P.W. 1, reiterated the contents of the plaint. In the course of cross-examination, he has stated that no legal notice was issued to the defendant in order to execute the sale deed. He has stated that an oral request was made to the defendant, to execute the sale deed, which the defendant kept on postponing. That no documents were taken from the 1st defendant at the time of execution of the agreement to sell nor has he demanded any documents from him. It is only thereafter that he learnt that the 2nd defendant''s name is transferred in the concerned revenue records and the 2nd defendant is paying the taxes. That he came to know about the katha in the name of the 2nd defendant about 4 to 5 months after the sale deed was executed.

He relies on paras 6, 8 & 12 of the plaint to contend that the same would narrate that the plaintiff has the readiness and also willingness to make the payment. Para 6, 8 & 12 read as follows:--

"6. Accordingly the plaintiff has been calling upon the first defendant to do his part of contract right from December-93 itself.

It is respectfully submitted here that since the first defendant was well known to plaintiff and witnesses to agreement of sale, the plaintiff always orally called upon the first defendant to do his part of contract.

The plaintiff was and is ever willing and ready to perform his part of contract. He is ready to pay the balance sale consideration of Rs. 1,17,000/- to first defendant on any day fixed by the Hon''ble court. The plaintiff is not bound by the sale by first defendant in favour of 2nd defendant."

Para-6 would indicate that the plaintiff has been calling upon the 1st defendant to perform his part of the contract from December 1993 itself. It does not refer to his willingness or readiness to perform the contract. Para-8 is to the effect that since he knew the 1st defendant, the plaintiff was orally calling upon him to do his part of the contract which he did not. Para-12 is to the effect that he is ever willing to perform his part of the contract. That he is ready to pay the balance consideration. The plaintiff is not bound by the sale made by 1st defendant in favour of the 2nd defendant.

Nowhere is there any reference made by him as to the manner in which the balance consideration of Rs. 1,17,000/- is to be paid. The total consideration was Rs. 1,42,000/- and Rs. 25,000/- was paid at the time of execution of Ex. P-1. Therefore, the plaintiff would necessarily have to show that he had the capacity to raise the funds in order to get the sale deed executed. There is an absence of pleading to the said effect. The plaintiff does not narrate to the extent, that he has the capacity to make such a payment. The trial Court on considering the issue with regard to readiness and willingness framed Issue No. 3 which reads as follows:--

"3) Whether the plaintiff further proves that, he was and is ever willing and ready to perform his part of contract?"

In considering the said issue, the Trial Court relied on the evidence of the other witnesses namely, P.W. 2 and 3 who have stated that the plaintiff was ready and willing to perform his part of the contract. That defendant No. 1 was not ready to perform his part of the contract. That defendant No. 1 has not denied that the plaintiff is not willing to perform his part of the contract. That defendant No. 1, is the competent person to speak that the plaintiff is ready and willing to perform his part of the contract. He has not entered the witness box to deny the same. Under these circumstances, it has to be presumed that the plaintiff is ready and willing to perform his part of the contract.

It is here that the trial Court seems to have committed an error in appreciating the evidence. The question of drawing a presumption would not arise for consideration. Readiness and willingness is a question of fact. The fact arises from the evidence borne out from the pleadings. As narrated hereinabove, the plaint averments do not show readiness and willingness. He does not even whisper to any extent, the capacity to make the payment. Even in the evidence of P.W. 1, there is no reference as to how and in what manner a sum of Rs. 1,17,000/- is to be generated by him in order to make the payment, except reiterating that he is ready and willing to perform his part of the contract. There is no other evidence to substantiate the case of the plaintiff. There is not even a pleading to the said effect. Therefore, for the trial Court, to draw a presumption that the plaintiff is ready and willing to perform his part of the contract is therefore erroneous.

The trial Court further committed an error in holding that defendant No. 1 did not deny readiness and willingness of the plaintiff. The trial court failed to consider the fact that defendant No. 1 has not even filed his written statement. He was placed ex-parte. Therefore, the question of he entering the witness box or denying the case of the plaintiff does not arise for consideration. The specific case of defendant No. 2 is that the plaintiff and the 1st defendant have colluded and the present suit has been filed. In the face of the defence of the 2nd defendant that there is collusion between the plaintiff and the 1st defendant, the trial court committed a blunder in holding that in the absence of the 1st defendant disputing the plea of the plaintiff, there is a presumption that the plaintiff has proved that he is ready and willing to perform his part of the contract. Under these circumstances, this Court has no hesitation to hold that there is a serious error committed by the trial court in presuming that the plaintiff has established his readiness and willingness to perform his part of the contract.

The respondent No. 2/plaintiff has filed an application today under Order 41 Rule 27 read with Section 151 of Civil Procedure Code seeking to produce certain documents as additional evidence in support of his claim. In para-11 of the affidavit it has been narrated that when the matter was set down for final hearing, this Court noticed lack of evidence in respect of the financial capacity to pay the balance consideration and therefore the present application is filed.

It is a fact that the matter was argued on a number of dates. In the course of arguments, various observations were made by this Court. The observations were based on the pleadings and the evidence. When an opinion is expressed by the Bench, it does not mean that an affidavit has to be filed in order to patch up the lacuna. It was a matter of grace, that the matter was adjourned to enable the respondent''s counsel to have his say. Rather than doing so, the present application is filed. It is not in good taste. No doubt, the parties are entitled to file applications in accordance with law, but, only because, the case of the parties is weak on facts, it does not mean that any application under any circumstance for whatever reason should be filed.

It is stated in the affidavit that the said documents could not have been produced earlier and hence he requests the Court accept the application by allowing the additional evidence. The additional documents sought to be relied upon are Bank pass-book, Record of Rights etc. Hence, it is pleaded that by looking into the documents, the same would establish the case of the plaintiff that he had sufficient means to make the payment. The same is opposed to by the learned counsel for the appellant. He contends that the documents were well within the possession of the respondent much earlier. There is no apparent reason that falls within the parameters of Order 41 Rule 27 of CPC to allow such an application. Hence, the application requires to be rejected. Even otherwise, documents in the absence of evidence and pleadings cannot be considered. Hence, he pleads that the application be rejected.

Heard learned counsels on the said application. I have considered the additional evidence as well as the affidavit filed in support of the application. Therein various reasons are assigned in support of the documents to be produced namely, that the plaintiff was drawing income from agricultural lands and the documents would show that he had sufficient income to make the said payment. It is further narrated that they did not get proper legal advise in order to produce the documents. It is further stated in para 11 that when the appeal was being considered for final hearing, on the previous dates this Court noticed lack of evidence on record and therefore this application is being filed today.

No amount of evidence can overcome lack of pleadings. The pleadings relied upon by the counsel in paras-6,8 and 12 do not even narrate the manner in which the balance consideration is to be raised. Notwithstanding the same, the evidence led by him before the trial court lacks any material in order to show that he has the capacity to make the payment. What is sought to be produced herein are the documents in support of the plea that there was sufficient income to make the payment. When the plaintiff has not pleaded that he has capacity to pay the amount, the same cannot be substantiated by any amount of evidence. Therefore, I''am of the view that even if the application is to be allowed, the same would not come to the aid of the respondent in any manner whatsoever.

16.(a). In this regard reliance is placed on the Judgment of the Hon''ble Supreme Court in the case of M.M.S. Investments, Madurai and Others Vs. V. Veerappan and Others, with reference to para-5. It is contended that questioning the plea of readiness and willingness after conveyance, is not relevant. After conveyance, the only question to be adjudicated is whether the purchaser was a bona fide purchaser. Therefore it is contended that the sale having taken place, the question of readiness and willingness cannot be considered at all.

(b). I have considered the Judgment at length. The facts therein would narrate that the suit for specific performance was decreed. After the decreetal by the trial court, the defendants appeared through the Power of Attorney, who sold a large extent of land including the subject matter of the suit, in favour of certain persons who were the present appellants. Under these circumstances, the Hon''ble Supreme Court held, that once an alienation has taken place, the question of readiness and willingness would not arise for consideration. That was a case wherein the suit for specific performance having been decreed, the properties were sold after the decreetal of the suit. Therefore reliance placed on the Judgment is wholly misconceived. The same cannot be applied to the facts in this case.

17.(a). The next Judgment relied upon is in the case of K. Venkataramiah Vs. A. Seetharama Reddy and Others, with reference to para-16, which reads as follows:--

"16. In view of what the High Court has stated in this passage it is not possible to say that the High Court made the order for admission of additional evidence without applying its mind. It seems clear that High Court thought, on a consideration of the evidence, in the light of the arguments that had been addressed already before it that it would assist them to arrive at the truth on the question of Seetharam Reddy''s age if the entries in the admission registers of the school were made available. It was vehemently urged by the learned counsel for the appellant that there was such a volume of evidence before the High Court that it could not be seriously suggested that the Court required any additional evidence "to enable it to pronounce judgment". The requirement, it has to be remembered, was the requirement of the High Court, and it will not be right for us to examine the evidence to find out whether we would have required such additional evidence to enable "us" to pronounce judgment. Apart from this, it is well to remember that the appellate court has the power to allow additional evidence not only if it requires such evidence "to enable it to pronounce judgment" but also for "any other substantial cause". There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence "to enable it to pronounce judgment", it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence "for any other substantial cause" under R. 27(1)(b) of the Code".

(b). The facts in the said case are as narrated by the Hon''ble Supreme Court in para-6 of the Judgment, wherein it was held that there was considerable amount of oral and documentary evidence before the tribunal about the question of Seetharam Reddy''s age. That was the issue for consideration. In support of such a consideration, these additional documents were sought to be relied upon. The additional documents were the vakalath nama of Seetharam Reddy''s, wherein it was shown that Seetharam Reddy was born 1928. On this basis the documents that were sought to be relied upon in terms of Order 41 Rule 27 are the additional documents that were sought to be relied upon, wherein evidence had already been led-in supported by the pleadings. What was pleaded is the additional evidence. It is under those circumstances, the Hon''ble Supreme Court held that it is necessary to allow the application. Order 41 Rule 27 of CPC postulates production of additional evidence. In the aforementioned cases, the Hon''ble Supreme Court considered the said applications. Since it amounts to additional evidence, the evidence was led-in. Since it was not sufficient, additional evidence was permitted. In the instant case, neither is there any averment nor is their evidence. It is not a case of inadequate evidence that is sought to be rectified by producing additional evidence. Infact, there is no evidence at all. When there is total absence of evidence, additional evidence cannot be permitted. Therefore, the plea of the plaintiff seeking to produce additional evidence cannot be accepted.

(c). The documents sought to be relied includes the bank pass book of the plaintiff and his wife. The entry for August, 1993, of the plaintiffs pass book, would show that there was a balance of Rs. 237/-. The next entry on 27th January 1996 shows that he had a balance of Rs. 242/-. The suit was filed on 7-11-1996. The pass-book entry would show that as on 3-11-1996 he had a balance of Rs. 9,999/- and on 9-11-1996 he had a balance of Rs. 27,999/-. The amount payable was Rs. 1,17,000/-. Therefore, it is evident that the plaintiff had no adequate money at all in order to make the payment in terms of the agreement to sell. The pass-book of his wife is also sought to be relied upon in the present application. As on 1st August, 1995, her pass-book shows a balance of Rs. 148/-. As on 1st February, 1996 the balance would show a sum of Rs. 151/-.

(d). The pass-books sought to be relied upon as a document does not indicate that the plaintiff had any money in order to execute the sale deed. The agreement to sell was executed on 11-11-1993 and the sale deed had to be executed within 3 months. Even the pass-book of the wife does not indicate that there was any adequate money at all in her account also to make the payment. Therefore, even on a prima facie view of the pass-books produced, the same would indicate that the plaintiff or his wife evidently had no money to make the payments. Therefore even if the additional document are considered, they will not come to the aid of the plaintiff.

18.(a). Reliance is also placed on the Judgment in the case of Municipal Corporation for Greater Bombay Vs. Lala Pancham of Bombay and Others, with reference to para-9 to contend that even though the High Court has power to allow an amendment under Order 41 Rule 27 , it must be limited only to those cases where it is found necessary to obtain such evidence to enable it to pronounce Judgment. The relevant portion reads as follows:--

"9.........No doubt, under R.27 the High Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the High Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the High Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate court is empowered to admit additional evidence."

(b). On considering the aforesaid Judgment, I''am of the view that it would rather support the case of the appellant than the case of the respondent. The Hon''ble Supreme Court has categorically held that the provision of law does not entitle the High Court to let-in fresh evidence where without such evidence it can pronounce Judgments in the case. It does not entitle the appellate court to allow fresh evidence only for the purpose of pronouncing Judgment in a particular case. Based on the said Judgment it is apparent that the evidence sought to be relied upon cannot be considered by this Court.

The Judgments relied upon would stress the fact that the documents could be considered in order to enable the Court in rendering its Judgment. That the documents would assist in pronouncing the Judgment. On considering the evidence sought to be relied upon, I''am of the view that none of them are required in order to pronounce the Judgment. They are not required to assist this court in rendering its Judgment. The plea of the parties has to be determined based on their pleadings and supported by evidence. When there is lack of pleadings or evidence the same cannot be substituted at the appellate stage. The plea of the parties would have to be considered on the available material. The additional evidence if accepted would change the very nature of the case. It would change the very case of the plaintiff. The suit would be totally overturned if new evidence for the first time is sought to be relied on. Therefore on the available pleadings and evidence this Court is well equipped to pass the Judgment on the same. Hence the application is rejected.

Section 16 of the Specific Relief Act reads as follows:--

"16. Personal bars to relief.--Specific performance of a contract cannot be enforced in favour of a person-

(a) who would not be entitled to recover compensation for its breach; or

(b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or

(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.

Explanation.--For the purposes of clause (c),-

(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;

(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction."

The Hon''ble Supreme Court in the case of His Holiness Acharya Swami Ganesh Dassji Vs. Shri Sita Ram Thapar, held at para-2 as follows:--

"2. There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For contract, the conduct has to be properly scrutinised. There is no documentary proof that the plaintiff had ever funds to pay the balance of consideration. Assuming that he had the funds, he has to prove his willingness to perform his part of the contract. According to the terms of the agreement, the plaintiff was to supply the draft sale deed to the defendant within 7 days of the execution of the agreement, i.e., by 27.2.1975. The draft sale deed was not returned after being duly approved by the petitioner. The factum of readiness and willingness to perform plaintiff''s part of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract. The facts of this case would amply demonstrate that the petitioner/plaintiff was not ready to perform his part of the contract as he had no financial capacity to pay the consideration in cash as contracted and intended to abide for the time which disentitles him as time is the essence of the contract."

In the case of Aniglase Yohannan Vs. Ramlatha and Others, , the Supreme Court held as follows:--

"12. The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief."

This Court further held that the averments relating to readiness and willingness are not a mathematical formula which should be expressed in specific words and if the averments in the plaint as a whole, do clearly indicate the readiness and willingness of the plaintiff to fulfill his part of the obligations under the contract, the fact that the wording was different, will not militate against the readiness and willingness of the plaintiff. The above observations cannot be construed as requiring only a pleading in regard to readiness and willingness and not ''proof relating to readiness and willingness. In fact, in the very next para, this Court clarified that Section 16(c) of the Act mandates the plaintiff to aver in the plaint and establish the fact by evidence aliunde that he has always been ready and willing to perform his part of the contract. Therefore, the decision merely reiterates the need for both pleadings and proof in regard to readiness and willingness of the plaintiff."

The Hon''ble Supreme Court in the case of Man Kaur (dead) by LRS. Vs. Hartar Singh Sangha, held as under:--

"12. Section 16(c) of the Specific Relief Act 1963 (''Act'' for short) bars the specific performance of a contract in favour of a plaintiff

"who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him (other than terms of the performance of which has been prevented or waived by the defendant).

Explanation (ii) to section 16 provides that for purposes of clause (c) of section 16 ,

"the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.

Thus in a suit for specific performance, the plaintiff should not only plead and prove the terms of the agreement, but should also plead and prove his readiness and willingness to perform his obligations under the contract in terms of the contract."

Therefore, the continuous readiness and willingness is a condition precedent to grant the relief of specific performance. The plaintiff has to aver and prove the same. If he fails to make the averment and he has failed to prove it, then no relief can be granted to him. Applying the judgments to the facts & circumstances of the case, there is no hesitation to hold that there is absolute lack of averments by the plaintiff. The only averments are to be found in Paras-6, 8 & 12 as extracted hereinabove. These paragraphs do not aver readiness. Though the plaintiff may be willing, he would also have to aver and prove that he is ready. Apparently he has failed to do so.

Readiness and willingness refers to the state of mind and the conduct of the purchaser. Willingness is a state of mind wherein the plaintiff would have to aver that he is willing to perform his part of the contract. To prove readiness is a matter of fact and conduct. To prove one without the other is insufficient. Readiness and willingness would both have to be proved. To prove readiness the capacity of the plaintiff would have to be established. The capacity would have to be proved financially through an averment and evidence to be led in. It is that evidence that the court would have to consider to conclude whether there was readiness or not. In view of the absence of an averment and proof, it cannot be said that the plaintiff has proved his readiness. So far as willingness is concerned, it reflects the mental attitude of the plaintiff. The attitude may manifest through the averments which should indicate that he is ready to perform his part of the contract. That both require to be proved by the plaintiff, namely, readiness and willingness. In view of the absence of any material, I find no hesitation to hold that the plaintiff has failed to prove readiness and willingness. Therefore, the decree for specific performance of contract cannot be granted, in view of the failure of the plaintiff to prove his readiness and willingness.

Therefore, the first Issue is answered by holding that the Judgment & decree of the trial court is perverse in holding that the plaintiff has proved that he is ready and willing to perform his part of the contract. The material on record would show that the plaintiff has failed to prove that he was ready and willing to perform his part of the contract.

The second issue is as to whether the plaintiff proves that time was not the essence of the contract. The trial court on considering the said issue was of the view that even though the plaintiff demanded execution of the agreement within the stipulated time, defendant No. 1 evaded to execute the sale deed. Therefore, defendant No. 1 refused to execute the sale deed and he has stated that he has already executed the sale deed in favour of defendant No. 2. Immediately, the plaintiff has approached the court. The evidence of P.W. 1 was also extracted in the said Judgment where he has stated that the agreement has to be executed within a period of 3 months if not there will not be any relationship between them. That all relationships between them would cease. The recitals in Ex. D-1 was also extracted therein. The trial court therefore presumed that when the plaintiff approached the 1st defendant to execute the sale deed, it cannot be said that time was the essence of the contract. Therefore, it answered the issue by holding that time is not the essence of the contract. In support of the contentions, the learned counsel for the plaintiff would narrate that time was not the essence of the contract. That even though on a number of occasions, the request was made to the respondents to execute the sale deed, therefore having failed to do so, he has filed the suit immediately on coming to know of the sale in favour of the 2nd respondent. Therefore, time is not the essence of the contract.

I''am unable to accept any of the reasons of the trial court in holding that time was not the essence of the contract. Ex. P-1 would narrate that time is the essence of the contract. It narrates that the sale deed should be executed within 3 months from the said date. Ex. P-1 namely, the agreement to sell, was executed on 19-11-1993. The sale deed had to be executed within 3 months namely, before 19-2-1994. For the trial court to hold, that only because the plaintiff demanded and the defendant refused, time was not the essence of the contract is unacceptable. Para-13 of the judgment would reveal that as to how the reasoning of the trial court becomes unsustainable.

"13.....Under the said circumstances time is not essence of the contract even though the time is mentioned in the agreement......."

The trial court having considered the Clause in the agreement, committed a serious blunder in holding that even though time is mentioned in the agreement, time is not the essence. There is no explanation to defend such a reasoning. The agreement cannot be read beyond context. It has to be read as intended. A reading of the same would show that time was necessarily the essence of the contract. When time is the essence of the contract, the trial court cannot hold that time is not the essence of the contract. The same would amount to re-reading the terms of the agreement which is impermissible.

The trial court placed reliance on the Judgment in the case of Govind Prasad Chaturvedi Vs. Hari Dutt Shastri and Another, wherein it was held that in a suit for specific performance of agreement of sale, neither in the pleadings nor during the trial, defendants contend that time was not the essence of the contract and the parties did not go to trial on that basis and when no issues were framed in that regard, the Court committed an error in allowing the defendants to raise such a plea and state it as one of the points for determination. I fail to understand how the trial court could even rely on the said Judgment. In the facts and circumstances of this case, the specific plea of the defendant is that time is the essence of the contract. Therefore, the additional issue was framed by the trial court, as to whether the plaintiff proves that time was not the essence of the contract. When an issue has been framed, the parties have understood the issues, the question of relying on the Judgment of the Hon''ble Supreme Court is therefore perverse to say the least. Hence reliance placed on the judgment is misconceived. Hence, the Court has no hesitation to hold that the trial court committed a blunder in holding that the time was not the essence of the contract. Hence the 2nd point is accordingly answered.

At this stage, the learned counsel for the plaintiff pleads that there should be a direction to the 1st defendant to pay the advance amount. The 1st defendant is served and unrepresented. In view of the fact that there is ample evidence to show that the plaintiff has paid a sum of Rs. 25,000/- to the 1st defendant, it is only just and appropriate that the 1st defendant be directed to refund the said amount along with a reasonable rate of interest. Consequently, the 1st defendant namely, respondents 1(a) to (d) are directed to refund a sum of Rs. 25,000/- to the plaintiff namely, respondents 2(a) to (d) along with interest at the rate of 6% per annum from the date of the agreement till the date of payment, which shall be within a period of 12 weeks from the date of receipt of a copy of this order.

Hence, the following order:--

"The appeal is partly allowed. The Judgment & decree of the trial court dated 17-2-2003 passed by the Civil Judge(Senior Division) & JMFC, Chintamani, in O.S. No. 281/1996 is set aside. The suit for specific performance is rejected. In the alternate, the 1st defendant namely, respondents 1(a) to (d) are directed to pay a sum of Rs. 25,000/- to the plaintiff namely respondents 2 (a) to (d) along with 6% interest per annum from the date of the agreement namely, 11.11.1993 till the date of realisation which shall be within a period of 12 weeks from the date of receipt of a copy of this order."

No Costs.