[2025:RJ-JP:23718] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Second Appeal No. 362/1996 1. Jankinath Tikku (deceased) son of Shri Balbhadra, Through legal representatives:- 1/1. Anil Kumar Tikku son of late Sh. Jankinath Tikku resident of House No. E-311, Lal Kothi Scheme, Jaipur. 1/2 Chitra Tankha daughter of Late Sh. Jankinath Tikku, resident of Plot No.44, Ana Sagar Link Road, Ajmer. ----defendant/Appellant Versus 1. Surendra Sharma (deceased) son of Shri P.D. Verma through legal representatives:- 1/1. Mrs. S. Verma wife of late Sh. Surendra Verma 1/2. Nidhi Verma daughter of late Sh. Surendra Verma 1/3. Golden Verma daughter of late Sh. Surendra Verma (All resident of House No. 25, Shakti Nagar, Subash Nagar, Ajmer ----Plaintiffs/Respondents For Appellant(s) : Mr. M.M. Ranjan, Senior Advocate with assisted by Mr. Lokesh Tiwari, Advocate For Respondent(s) : Mr. J.P. Goyal, Senior Advocate with assisted by Ms. Meenal Bhargava, Advocate HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 28/05/2025 1. Instant Second Appeal is preferred by appellants-defendants aggrieved from dismissal of Civil Regular Appeal No. 49/1993 on 07.08.1996 by Learned Additional District Judge No. 1 Ajmer, affirming the judgment and decree dated 02.04.1993 in civil suit [2025:RJ-JP:23718] (2 of 12) [CSA-362/1996] No. 127/1993 (74/1982) passed by Learned Munsif Magistrate, City (West), Ajmer. 2. Learned Senior Advocate appearing on behalf of appellant- defendant while relying upon grounds of appeal submitted that respondent-plaintiff Surendra Verma has filed a civil suit for specific performance on basis of an alleged agreement to sale dated 02.10.1980 on the ground that appellant-defendant Janki Nath has agreed to sale a piece of land on sale consideration of ₹11,000/- and received ₹1,000/- as an advance. He further submitted that as per averment in plaint there was a time clause but same was extended by another agreement dated 01.07.1981. He further submitted that the plaintiff has claimed that on 23.03.1982 has paid remaining sale consideration to the defendant but defendant has not executed a registered instrument in favor of plaintiff. He further submitted that the Plaintiff has filed a suit for specific performance of contract and alternatively for returning of advance money with interest of 15%. He further submitted that the defendant has denied the entire averment of plaint and pleaded that the agreement dated 02.10.1980 becomes infructuous as the defendant has not raised any approval from UIT and he has informed the plaintiff to receive back ₹1000/- (advance money). He further submitted that by agreement dated 01.07.1981, it was agreed between the parties to make payment of interest at the rate of 10% per annum with all relevant expenses but the plaintiff has not shown keenness to purchase the land in pursuance to agreement dated 01.07.1981 after making all payment and charges. He further denied the averment of plaint [2025:RJ-JP:23718] (3 of 12) [CSA-362/1996] about handing over the possession and submitted that at no point of time the possession of the land was handed over to the plaintiff and there is no documentary proof of handing over of the possession. He further submitted that the findings recorded by the Trial Court and the Appellate Court does not confirms to the evidence on record. He also submitted that neither of the Court below have recorded the findings that plaintiff has not paid remaining sale consideration along with interest. He further submitted that plaintiff has neither pleaded nor proved issue of readiness and willingness and the Courts below have failed to notice that plaintiff was never ready and willing to observe his part of contract. He also submitted that the Trial Court and the Appellate Court both have failed to consider Section 20 of the Specific Relief Act as a relief for specific performance is a discretionary relief and the trial court would have directed for refund of advance money. He also referred section 16(2) of the Specific Relief Act and submitted that in absence of readiness and willingness in a suit plaintiff is not entitled to procure a decree. He further placed reliance upon judgment in case of Bal Krishna and Ors. Vs. Bhagwan Das (Dead) and Anr. MANU/SC/ 7362/2008 and submitted that a suit for specific performance cannot be decreed in favor of a person who fails to aver and prove his readiness and willingness to perform essential terms of contract. He further placed reliance upon judgment in case of Gaurav Private Limited Vs. Tarchand Sancheti and Ors. MANU/RH/738/2017 and submitted that after almost 50 years, it is impossible to perform agreement to sale particularly when the [2025:RJ-JP:23718] (4 of 12) [CSA-362/1996] plaintiff has failed in its duty to perform his part of agreement. He further submitted that the Court has to remain alive to the situation and consider the case on the basis of material on record along with change in circumstances. He further referred cross- examination of PW-1 and submitted that even he was not ready to pay rupees ₹7,000/- (interest and expense). At last, he referred the judgment Gyanchand Vs. Daulatram RLW 1975 (Raj.) 301 and submitted that in facts and circumstances of the case the plaintiff is not entitled for a decree of specific performance of contract. 3. Aforesaid contentions were opposed by Learned Senior Advocate appearing on behalf of respondent-plaintiff and submitted that the evidence of PW-1 has to be read as a whole before drawing any conclusion. He further submitted that in the entire cross-examination PW-1 has clearly spell out the details but nowhere he has contradicted the Examination-in-Chief. He also referred the material on record and submitted that both the Courts below have considered each and every aspect and objection of defendant and after considering said objections and defences, the suit of plaintiff was decreed and upheld by the First Appellate Court. He also submitted that issue of readiness and willingness is a question of fact and it has been decided by Learned Trial Court after considering the evidence of parties. He further submitted that plaintiff is always ready and willing to perform his part of the contract and he has made a specific averment in the plaint which is evident from the findings recorded by the Trial Court. He further referred the cross-examination of [2025:RJ-JP:23718] (5 of 12) [CSA-362/1996] DW-1 and submitted that defendant has always tried to create hurdles in execution of sale deed. He also submitted that all issues were decided in favor of plaintiff and Appellate Court after considering the evidence has affirmed the findings. At last, he submitted that plaintiff is able to prove all ingredients, so he is entitled for specific performance of contract. 4. Heard learned Senior Advocate appearing on behalf of both the parties and perused the record. During pendency of this appeal, both the appellant and defendant have expired and their legal representatives are substituted. 5. The brief facts of the case are that respondent-plaintiff Surendra Verma has filed a civil suit for specific performance of agreement dated 02.10.1980 to purchase a property mentioned in para No.1 of the plaint for a sale consideration of ₹11,000/-. The plaintiff has further averred that he has advanced ₹1,000/- against sale consideration and further said agreement was supplemented by another agreement dated 01.07.1981. The plaintiff has paid entire sale consideration on 23.03.1982 but defendant has not executed a sale deed, therefore, the plaintiff has filed a civil suit for specific performance of contract or alternatively for refund of ₹11,000/- with an interest of 15%. The defendant has filed written statement denying the allegations but admitted agreement dated 02.10.1980 and 01.07.1981. The defendant has pleaded that the plaintiff has not made payment in accordance with agreement dated 01.07.1981 and the agreement to sale has rendered ineffective and infructuous. [2025:RJ-JP:23718] (6 of 12) [CSA-362/1996] 6. The Trial Court has framed 11 issues on basis of pleadings of the parties. The plaintiff has examined 3 witnesses and exhibited 10 documents whereas defendant has examined 2 witnesses and exhibited 4 documents. The Trial Court has decided issue Nos. 1 and 2 in favor of plaintiff but the Trial Court has also decided issue Nos. 4 and 5 in favor of defendant and against the plaintiff. Issue No.6 was decided against the defendant. Issue No.7 was also decided in accordance with issue No.6. Issue No.8 was decided against the plaintiff whereas issue No.9 was decided in favor of plaintiff. Issue No. 10 was decided partially in favor of plaintiff and partially in favor of defendant. Ultimately, the suit was decided in favor of plaintiff. 7. The defendant Jankinath has filed an appeal under Section 96 of CPC, which was dismissed by learned Additional District Judge No.1, Ajmer on 07.08.1996 affirming the judgment and decree passed by the Trial Court. The second appeal was admitted on following substantial question of law:- (i) “Whether on the face of finding of Issue Nos. 3 and 5, it can be said that plaintiff was ready and willing to perform his part?” 8. If we look at issue Nos. 3 and 5 then issue No.3 is framed only on ground that the agreement dated 01.07.1981 is only for extension of time whereas issue No.5 framed on averment of plaintiff that on 23.03.1982, the plaintiff has made payment of remaining sale consideration. A perusal of finding on issue No.4 recorded by Trial Court indicate that the Trial Court has observed that besides extension of one year there was other conditions in agreement dated 01.07.1981 whereby the parties have agreed to [2025:RJ-JP:23718] (7 of 12) [CSA-362/1996] extend timeline of original agreement dated 02.10.1980 with certain conditions. Issue No.5 was decided against the plaintiff and the Trial Court has held that plaintiff has not made any payment to defendant. The findings on issue Nos. 3 and 5 clearly shows that the plaintiff has not made any payment to the defendant before institution of civil suit. The plaintiff has made false claim and led false evidence before the Trial Court to show that he has made entire payment to the defendant. The evidence of plaintiff is not found as trustworthy and issue No.5 was accordingly decided against the plaintiff. Similarly, issue No.3 was decided against the averment of plaintiff which means the plaintiff has filed a suit only on basis of payment of advance of ₹1000/- made in pursuant to agreement dated 02.10.1980. 9. The plaintiff has not made any payment to defendant. The agreement Ex.3 dated 01.07.1981 also indicate that there were additional terms and conditions and they are reproduced as under:- (i). That the purchaser will pay an additional amount equivalent as calculated at the rate of 10% per annum on the agreed cost of the said plot of land less rupees one thousand already paid as advance with the agreement stated above, for a period from 01.07.1981 to the date of registration of the sale deed. The amount will be payable after getting NOC but before registration. (ii). That the one third part of the mutually reasonably agreeable expenses incurred by the seller for obtaining clearance for sale of the said plot of land from the Urban Land Ceiling authority will be born by the purchaser (such as travelling to Jaipur, Lawyer fees, stamps etc.) The amount will be payable after getting the NOC but before registration. [2025:RJ-JP:23718] (8 of 12) [CSA-362/1996] 10. Aforesaid clearly indicate that the plaintiff has agreed to make additional payment over and above as referred in Ex.2 (agreement dated 01.10.1980). Ex. 4, a letter by the lawyer of the plaintiff, indicate that the plaintiff has refused to make additional payment of ₹7,000. The plaintiff has agreed to pay sale consideration of ₹9,650 with 10% from 01.07.1981 to 24.03.1982 which aggregated to ₹10407.75. By letter dated 26.04.1982, Exhibit 7, the plaintiff has claimed that it has paid ₹9,850/- on 23.03.1982. Initial letter dated 11.03.1982, Exhibit A1, clearly indicate that the defendant has demanded interest as per clause-(i) of agreement Ex.3 and one-third amount of expenses in pursuant to clause-(ii) of Ex-3. The total amount of expenses claimed was ₹7,000 and the payment is refused categorically by the plaintiff. In cross-examination, when a specific question is asked about non-compliance of Exhibit A1 dated 11.03.1982, then PW-1 has admitted that he was not ready and willing to make payment of ₹7,000 but he reiterated payment of reasonable expenses. Further cross-examination revealed that PW-1 has assessed other expenses as ₹500/- – 700/-. 11. A perusal of evidence both documentary and oral clearly indicate that there was a dispute of payment of expenses in pursuant to clause-(ii) of agreement Exhibit A-3, but plaintiff is neither ready nor willing to make payment as demanded by defendant. Moreover, the plaintiff without making a payment in pursuant to clause-(i) of agreement Ex.3 and remaining sale consideration under agreement Ex. 2 has filed a suit with the assertion that he has already paid the payment to the defendant. [2025:RJ-JP:23718] (9 of 12) [CSA-362/1996] 12. The suit filed on 26.05.1982 and same was decreed by the trial court on 02.04.1993, which means for 12 years the plaintiff has neither offered nor deposited any amount to make payment in pursuant to agreement Ex.- 2 and 3. The plaintiff in his plaint in para No.17 has made an averment that he is ready and willing to comply his part under the agreement dated 02.10.1980 and 01.07.1981. A specific statement was made that he is ready and willing to purchase the disputed plot even today, therefore, from averment in plaint and also in evidence the plaintiff has shown his readiness and willingness but the case of plaintiff is purely based on false fact and his admission in evidence suggests that he refused to follow clause-(ii) of subsequent agreement Exhibit 3. Even during his evidence, PW-1 has refused to make payment of ₹7,000/- to defendant in pursuant to letter of demand Exhibit A-1 dated 11.03.1982. The dispute between the parties arose only on non-payment of ₹7,000/- in pursuant to demand of defendant for one-third expenses from Plaintiff. 13. Aforementioned conduct of plaintiff clearly indicate that the plaintiff has not approached the Civil Court with clean hands and Section 20 of Specific Relief Act clearly provides that a relief of specific performance is a discretionary relief and Court should examine the facts in light of evidence both documentary and oral before drawing any conclusion but in the instant case the Trial Court despite deciding Issue No. 5 against the plaintiff and Issue No. 3 partially against the plaintiff even passed a decree of specific performance in favour of plaintiff. 14. In case of Bal Krishna and Ors. Vs. Bhagwan Das (Dead) (supra), Hon’ble Supreme Court while considering [2025:RJ-JP:23718] (10 of 12) [CSA-362/1996] Section 16(2) of the Specific Relief Act, has held that the specific performance of a contract cannot be enforced in favour of a person 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. In case of Gyanchand Vs. Daulatram (supra), a dispute was with regard to sale consideration as plaintiff alleged that the price agreed was ₹7,000 whereas defendant asserted that the price was ₹11,500. The court was of the opinion that the price agreed was ₹11,500 and in such circumstances it was held by a co-ordinate bench that the plaintiff was not ready and willing to pay price agreed in full, therefore, he is not entitled for specific performance. 15. Having considered the facts particularly averment in plaint and evidence of PW-1, it is apparent on record that plaintiff has made false averment in plaint and the plaintiff has neither made any payment before filing of civil suit nor he is ready and willing to make payment in pursuant to clause-(ii) of subsequent agreement Exhibit 3, therefore, looking to judgments as referred hereinabove, the issue of readiness and willingness cannot be decided in favour of plaintiff. Thus, both the courts below have miserably failed in their duties in considering the essential ingredients before passing a decree of specific performance. Thus, the plaintiff is not ready and willing to perform his part of contract, though plaintiff has made averment both in plaint and also in Examination-in-Chief about readiness and willingness. In case of Gaurav Private Limited Vs. Tarchand Sancheti and Ors. (supra), a co-ordinate bench of this court, after considering [2025:RJ-JP:23718] (11 of 12) [CSA-362/1996] the changed circumstances has refused to pass a decree of specific performance in first appeal. 16. In the instant case, the evidence of DW-1 suggested that DW-1 has reiterated execution of registered sale deed in pursuant to subsequent agreement Ex. 3. DW-1 also deposed that he invited plaintiff by letter dated 11.03.1982 for Registry on 24.03.1982 but the plaintiff has not turned up in Sub-Registrar's Office on 24.03.1982. The facts and circumstances clearly indicate that now plaintiff is demanding performance of agreement dated 01.07.1981 after 44 years and same is unrealistic, particularly when plaintiff has not made any payment in pursuant to agreement to sale to the defendant when demand is made by Exhibit A1. It is also proved that the plaintiff was not present on 24.03.1982 when defendant has asked plaintiff to visit Sub- Registrar's Office with remaining money as per agreement Exhibit 2 and Exhibit 3. 17. In view of discussions made hereinabove, both the Courts below have committed serious error by deciding issue of readiness and willingness in favour of plaintiff. Thus, the findings on issue Nos. 3 and 5 are perverse and contrary to the record and the plaintiff is not entitled for a decree of specific performance, therefore, the substantial question of law is decided in affirmative in favor of appellant-defendant. 18. In view of discussions made hereinabove, the instant S.B. CSA is liable to be allowed and judgment and decree dated 02.04.1993 in civil suit No. 127/1993 (74/1982) affirmed in regular appeal No. 49/1993 on 07.08.1996 is liable to be set aside. [2025:RJ-JP:23718] (12 of 12) [CSA-362/1996] 19. The plaintiff has made an advance of ₹1000/- and he is entitled to recover same from defendant with interest of 7% from date of filing of civil suit. 20. As a result, the instant Civil Second Appeal is allowed and the judgment and decree dated 02.04.1993 in civil suit No. 127/1993 (74/1982) affirmed in regular appeal No. 49/1993 on 07.08.1996 is hereby set aside and civil suit preferred by plaintiff for specific performance is hereby dismissed. 21. The plaintiff is entitled for refund of ₹1,000/- advanced by him to defendant at the time of execution of agreement Ex. 2 on 01.07.1981. The plaintiff is also entitled for interest @ 7% p.a. from the date of filing of civil suit till realization of principal amount. 22. Decree be drawn accordingly. 23. Misc. application(s), if any, also stands disposed of. 24. No order as to costs. (ASHOK KUMAR JAIN),J MONU /78