Deepak Gupta JUDGMENT
Deepak Gupta, J.
1. Amarjit Singh (since deceased, the Respondent herein) hereinafter referred to as "the Plaintiff, filed a suit for specific performance of contract. He alleged that he had entered into an agreement dated 17.10.2000 with Jagjit Singh (since deceased, the Appellant herein) hereinafter referred to as "the Defendant", for purchase of half share in the shop in dispute for a total sale consideration of Rs. 1,50,000/-. According to the Plaintiff, Rs. 1,30,000/- was paid in cash at the time of execution of the agreement to sell. The balance amount was to be paid on or before 30.03.2003, by which date the sale deed was to be executed and registered. It was further alleged that the date for execution and registration of the sale deed was extended by mutual consent of the parties till 09.10.2003. The Defendant denied the execution of the sale deed itself. According to him, he had not been paid any money.
2. The trial court on consideration of the entire evidence came to the conclusion that no agreement to sell had been executed between the parties and accordingly dismissed the suit. Aggrieved, the Plaintiff filed an appeal. The first appellate court set aside the finding of the trial court that the agreement to sell had not been executed. However, the first appellate court came to the conclusion that the so called agreement was, in fact, not an agreement to sell. It further held, that assuming that the said agreement was an agreement to sell, the Plaintiff had failed to prove that he was ready and willing to perform his part of the agreement. It held that the Plaintiff had failed to show what steps he had taken to perform his part of the contract from 17.10.2000 to 09.10.2003. The first appellate court, on perusal of the pleadings and the evidence, came to a finding of fact that it had nowhere been averred and proved that the Plaintiff had ever showed his readiness or willingness to perform his part of the contract. The appeal was consequently dismissed.
3. The second appeal filed by the Plaintiff has been allowed by the High Court without framing any question of law much less a substantial question of law. The High Court, without discussing the evidence, held that in its view the finding of the lower appellate court is "not only erroneous, but fallacious and perverse". The only ground for coming to this decision is that the suit had been filed on 09.01.2004 whereas the extended date for execution and registration of the sale deed was 09.10.2003 and thereafter, the Plaintiff had sent a legal notice on 13.10.2003. We fail to understand as to how the issuance of notice on 13.10.2003 or the filing of the suit on 09.01.2004 can lead to the conclusion that the Plaintiff was always ready and willing to perform his part of the contract from the date of agreement to sell till date of filing of suit. Moreover, this is a pure finding of fact which should not have been disturbed in a second appeal that too without giving any cogent reasons.
4. It is settled law that a Plaintiff who seeks specific performance of contract is required to plead and prove that he was always ready and willing to perform his part of the contract1. Section 16(c) of the Specific Relief Act mandates that the Plaintiff should plead and prove his readiness and willingness as a condition