1. This appeal by the defendants is directed against the judgment and decree passed by the Court of the Principal Civil Judge (Senior Division), Dharwad, in R.A No. 104 of 2000, dated 25-7-2003 dismissing the appeal and confirming the judgment and decree passed by the Court of the I Additional Civil Judge (Junior Division), Dharwad, in O.S No. 688 of 1989, dated 29-9-2000, decreeing the suit of the plaintiff for specific performance of the agreement of sale dated 10-5-1980.

2. The essential facts of the case leading upto this appeal with reference to the rank of the parties before the Trial Court are as follows.— The plaintiff filed the suit, O.S No. 38 of 1985 seeking for specific performance of the agreement of sale dated 10-5-1980 averring that defendants 1 and 2 are known to the plaintiff and her husband since a long time. Taking undue advantage of the acquaintance, defendant 1 came to the house of the plaintiff and met her and her husband, somewhere in the month of April 1979 and induced them to purchase his land and he told them that his land is the best land and that he is in financial difficulties and that he does not want it to be sold to others and that by purchase, the plaintiff and her husband will be benefitted and not the others. In this way, he induced the plaintiff and her husband to purchase 2 acres of land out of block No. 135 measuring in all 3 acres 35 guntas and after final talks, it was agreed that the property is to be conveyed for Rs. 12,500/- by receiving earnest amount of Rs. 4,500/- and agreement of sale was executed and later, the said transaction culminated in execution of the sale deed dated 20-6-1979. But, at the time of registration, defendant 1 deceived the plaintiff and executed the sale deed in favour of defendant 2 and the plaintiff for the entire land of block No. 135 measuring 3 acres 35 guntas by committing fraud uponc the plaintiff and her husband. The plaintiff and her husband came to know of the fraud committed by the defendants in the month of May 1982 when they received the summons from the Court of the Civil Judge, Dharwad, in O.S No. 49 of 1982. After coming to know of the said fraud, the plaintiff has already filed a suit for declaration and injunction against the defendants 1 and 2. It is further averred that in the month of April 1980, the first defendant came to the plaintiff and her husband and told them that he is again in financial difficulties and he is in need of money and that he would sell the remaining portion in block No. 135 measuring 1 acre 35 guntas for a consideration of Rs. 15,000/- and received advance of Rs. 8,000/- as the earnest money out of the total consideration of Rs. 15,000/- in respect of 1 acre 35 guntas of land in block No. 135 of Govankop Village and possession of the land was also handed over to the plaintiff on the same day as per the terms of the agreement. The plaintiff came to be in possession of the entire extent of land measuring 3 acres 35 guntas of the suit property and since then, the plaintiff has been in possession and enjoyment of the same. It is further averred that in the agreement, a condition was also put that the first defendant shall execute the sale deed after getting permission from the Competent Authority along with other conditions. But, despite the request made by the plaintiff, defendant 1 never turned up to inform the plaintiff that he has obtained permission from the Competent Authority and that he will execute the sale deed as per the terms of the agreement dated 10-5-1980. It is further averred that surprisingly, the fraud committed by defendant 1 did not stop at the level as averred in the plaint and he raised the loan in the Union Bank of India, Dharwad Branch before he executed the sale deed on 20-6-1979 on the security of block No. 135 measuring 3 acres 35 guntas and the said loan was not cleared by the first defendant and O.S No. 181 of 1980 was filed by the Bank against the first defendant, who remained ex parte and a preliminary decree was passed and thereafter, the final decree was also drawn ex parte. The plaintiff, having learnt that the first defendant is not going to pay the amount and will not attend the Court and ultimately, the interest on the decretal amount would go on accumulating, paid an amount of Rs. 7,162-50 Ps., in the Court towards the loan of defendant 1 and the plaintiff is entitled for the specific performance of execution of the sale deed in her favour by the first defendant. The plaintiff has also spent for the suit and has to incur further expenses for getting the sale deed registered. The plaintiff will have to spend more than the consideration amount of Rs. 15,000/- and wherefore, she is entitled for recovery of the excess amount spent by her over and above Rs. 15,000/- and more than half of the expenses for registration as 50% of the registration charges has to be borne by defendant 1 as stipulated in Condition 4 of the agreement dated 10-5-1980. It is further averred that pending the suit, O.S No. 181 of 1980, defendant 1 has transferred his another property namely, house bearing Sy. No. 73 in the name of his son, defendant 2 and the plaintiff is entitled for attachment of the said property for recovery of the said excess amount paid and to be spend by her and wherefore, the suit for specific performance of the agreement of sale dated 10-5-1980 and permanent injunction.

3. The suit was resisted by the defendants. The first defendant did not file any written statement. Defendant 2 filed the written statement denying the materials averments made in the plaint regarding the fraud committed by defendant 1 and regarding the pendency of the suit, O.S No. 49 of 1982 and further averred that the averment made in the plaint that the plaintiff is entitled to specific performance of the agreement of sale dated 10-5-1980 is false and wherefore, the suit is liable to be dismissed.

4. The Trial Court framed the following issues and additional issue.—

“1. Whether the plaintiff proves that the first defendant agreed to sell the suit land and the plaintiff paid Rs. 8,000/- to defendant 1?

2. Whether the defendant 2 proves that the said agreement is not binding upon him?

3. Whether the plaintiff is in lawful possession of the suit property?

4. Whether the plaintiff has valued the suit property and Court fee paid is sufficient?

5. What order and decree?

Additional Issue No. 1:

Whether the defendant 1 proves that the suit is barred by limitation?”

5. On behalf of the plaintiff, the plaintiff got examined herself as P.W 1 and she also examined P.Ws 2 to 4 and got marked Exs. P. 1 to P. 14. On behalf of the defendants, defendant 2 was examined as D.W 1 and he also examined D.Ws 2 and 3 and did not produce any document. Defendant 1 died during the pendency of the suit and application was filed to bring on record the legal representatives 1(A) to 1(D). Later L.Rs 1(B) to 1(D) were given up and 1(A) was brought on record. The Trial Court after considering the contentions of the parties and the material on record, answered the issues in favour of the plaintiff by holding that the suit filed by the plaintiff is in time and the plaintiff has proved execution of the agreement of sale by the first defendant by receiving advance amount of Rs. 8,000/- and defendant 2 has failed to prove that the agreement is not binding on him and that the plaintiff was put in possession of the suit schedule property pursuant to the agreement of sale and the suit has been properly valued and the Court fee paid is sufficient and accordingly, decreed the suit of the plaintiff by directing the defendants to execute the sale deed in favour of the plaintiff in pursuance of the agreement of sale dated 10-5-1980 by judgment dated 29-1-2000. Being aggrieved by the said judgment and decree, the defendants preferred R.A No. 104 of 200 on the file of the Principal Civil Judge (Senior Division), Dharwad, and the first Appellate Court by judgment dated 25-7-2003, dismissed the appeal and confirmed the judgment and decree passed by the Trial Court decreeing the suit of the plaintiff for specific performance and being aggrieved by the said judgment and decree, the defendants have preferred this appeal under Section 100 of Civil Procedure Code, 1908, which was admitted on 21-1-2004 for consideration of the following substantial question of law:

Whether the Trial Court and the Appellate Court has committed any error in not permitting the plaintiff to prove throughout about the readiness and willingness to perform his part of the contract and whether on such a finding, it was proper for the Appellate Court to have granted the relief of specific performance?

6. I have heard the learned Counsel appearing for the parties on the above said substantial question of law and having heard the Counsel appearing for the parties, I hold that no other substantial question of law arises for consideration as the findings arrived at by the Courts below concurrently on the issues framed by the Courts below is justified.

7. Learned Counsel appearing for the appellants-defendants submitted that no issue was framed regarding the readiness and willingness on the part of the plaintiff in performing his part of the contract, which is a condition precedent in view of the provisions of Section 16(c) of the Specific Relief Act, 1963 (hereinafter referred to as ‘the Act’) and in the absence of the said issue, the parties were not afforded opportunity to adduce evidence in that behalf, which has caused prejudice to the case of the defendants and in the absence of any issue and evidence led in that behalf, the Courts below were not justified in decreeing the suit for specific performance as the proof of readiness and willingness to perform the part of the contract by the plaintiff is a condition precedent for decreeing the suit of the plaintiff in view of the provisions of Section 16(c) of the Act. Learned Counsel submitted that no issue was framed regarding readiness and willingness on the part of the plaintiff to perform his part of the contract and the first Appellate Court also did not frame any point for determination regarding the readiness and willingness on the part of the plaintiff to perform his part of the contract.

8. On the other hand, the learned Counsel appearing for the respondent-plaintiff submitted that both the Courts below have held that the plaintiff has already performed his part of the contract and wherefore, there was no necessity of framing an issue regarding the readiness and willingness on the part of the plaintiff in performing his part of the contract and the Courts below have relied upon the decision of the Hon'ble Supreme Court in Ramesh Chandra Chandiok v. Chuni Lal Sabharwal (dead) by L.Rs . 1970 3 SCC 140 and in view of the same, though no specific issue is framed, the contentions of the parties have been considered by the Courts below regarding the readiness and willingness on the part of the plaintiff in performing his part of the contract. Learned Counsel further submitted that if the Court comes to the conclusion that no issue was framed regarding readiness and willingness on the part of the plaintiff in performing the contract and wherefore, prejudice is caused to the defendants, the plaintiff may also be afforded opportunity to adduce additional evidence by framing issue regarding readiness and willingness. Learned Counsel further submitted that the judgment and decree passed by the Courts below do not call for interference in the second appeal as both the Courts have considered the question of readiness and willingness though no specific issue was framed. I have considered the contentions of the learned Counsel appearing for the parties and I answer the substantial question of law in the affirmative for the following:

REASONS

9. It is well-settled that in a suit for specific performance, the person who is seeking specific performance should 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, in view of the provisions of Section 16(c) of the Act and in the absence of proof of the said fact, specific performance of the contract cannot be enforced in favour of the person seeking specific performance. It is clear from the issues framed by the Trial Court that no specific issue has been framed regarding the readiness and willingness on the part of the plaintiff in performing his part of the contract. Similarly, the first Appellate Court has also not framed any point for determination regarding the readiness and willingness on the part of the plaintiff in performing his part of the contract. However, both the Courts below have proceeded on the basis that in view of the fact that Rs. 7,162-50 Ps., was paid in the execution of the decree in O.S No. 181 of 1980, the plaintiff has paid the consideration amount. The said reasoning of the Courts below without framing an issue or point for determination regarding the readiness and willingness on the part of the plaintiff in performing his part of the contract and without considering the question as to whether it was stipulated in the agreement of sale that the plaintiff should pay the amount due to the Bank and as to whether the said payment of Rs. 7,162-50 Ps., is pursuant to the agreement of sale, is erroneous and cannot at all be sustained. The decisions relied upon by the Courts below lay down that if the plaintiff was ready and willing to perform his part of the contract, he is entitled to decree for specific performance and readiness and willingness cannot be treated as a strait-jacket formula and the same have to be determined from the entirety of facts and circumstances relevant to the intention and conduct of party concerned and when the entire consideration amount has been paid after obtaining receipt of last payment, necessary allegations have to be presumed and literal compliance of language of provision of Section 16(c) of the Specific Relief Act is not imperative. However, in view of the fact that both the Courts below have not framed any issue or point for determination regarding readiness and willingness on the part of the plaintiff in performing his part of the contract, it is clear that they were not justified in decreeing the suit of the plaintiff without framing an issue on the said condition precedent required to be satisfied for entitlement of decree for specific performance, which has caused prejudice to the defendant as parties have not led any evidence regarding the said issue. Therefore, it is clear that the substantial question of law has to be answered in the affirmative by holding that the Courts below were not justified in decreeing the suit of the plaintiff for specific performance without framing an issue or point for determination regarding the readiness and willingness on the part of the plaintiff in performing his part of the contract in the absence of any issue and finding on the basis of the evidence led on the said issue, it is clear that the decree passed for specific performance cannot be sustained in view of the provisions of Section 16(c) of the Specific Relief Act. However, in view of the submission of the learned Counsel appearing for the parties, it is appropriate that the matter is remitted to the Trial Court for framing issue regarding the question as to whether the plaintiff was ever ready and willing to perform his part of the contract and is entitled to specific performance and permit the parties to adduce evidence on the said issue and thereafter, dispose of the suit for specific performance in accordance with law. It is made clear that the finding already given by the Courts below regarding the proof of execution of the agreement of sale and the finding that the suit filed by the plaintiff is in time and the other finding regarding payment of Court fee and lawful possession of the suit property by the plaintiff is entitled to be confirmed and the matter is liable to be remitted to the Trial Court only to frame issue regarding readiness and willingness on the part of the plaintiff in performing the contract and thereafter, to pass the judgment on the basis of the evidence adduced on the said issue as to whether the plaintiff is entitled to specific performance of the agreement of sale and accordingly, I pass the following Order.—

The appeal is allowed in part. The judgment and decree passed by the Court of the Principal Civil Judge (Senior Division), Dharwad, in R.A No. 104 of 2000, dated 25-7-2003, dismissing the appeal and confirming the judgment and decree passed by the Court of the I Additional Civil Judge (Junior Division), Dharwad, in O.S No. 688 of 1989, dated 29-9-2000, decreeing the suit of the plaintiff for specific performance is set aside. However, the finding given by the Trial Court on issue Nos. 1, 2, 3 and 4 and additional issue No. 1, which has been confirmed by the first Appellate Court is confirmed. O.S No. 688 of 1989 is remitted to the Trial Court for framing of the issue as to whether the plaintiff was ever ready and willing to perform his part of the contract and is entitled to specific performance of the agreement of sale dated 10-5-1980 as sought for in the suit and to afford oppor unity to the parties to adduce evidence on the said issue and thereafter, to dispose of the suit in accordance with law. Let a copy of this order and Lower Court Records be transmitted to the Trial Court forthwith. There shall be no order as to costs in this appeal.