JUDGMENT
1. The defendants filed this second appeal against the reversing judgment dated 9-12-1994 in [CASE NUMBER] on the file of the Subordinate Judge, Wanaparthy in allowing the appeal of the respondent and decreeing the suit in [CASE NUMBER], which was dismissed by the District Munsif, Kollapur on 26-7-1990.
2. The respondent herein is the plaintiff. The parties herein are referred to as arrayed in the original suit.
3. The plaintiff filed the suit for specific performance of agreement dated 17-10-1987 (Ex.A1) on 18-1-1989 alleging that one [ENTITY], the late husband of the 1st defendant and the father of defendants 2 to 5, entered into agreement of sale on 17-10-1987 (Ex.A1) with the plaintiff agreeing to sell the land in [SECTION] admeasuring Ac.2.00 situated in the limits of Sampatraopally village, Weepangandla Mandal, Mahabubnagar District for a consideration of Rs.19,000/- at the rate of Rs.9,500/- per acre and received a sum of Rs.500/- as advance from the plaintiff and executed an agreement of sale in favour of the plaintiff on the same day at Gopalpur village of Weepangandla Mandal. In the said agreement, it is stipulated that the balance of sale consideration of Rs.18,500/- was to be paid in two instalments, i.e., on or before 14-1-1988 and 14-1-1989. As per the said stipulation, when the plaintiff went to the said Pabba [ENTITY] to pay an amount of Rs.9,250/-as the 1st instalment, the said [ENTITY] and the 1st defendant refused to take the said amount stating that the said [ENTITY] was going to Kurnool town for getting medical treatment and that they will take the amount after returning from Kurnool town. Thereafter, even after returning from Kurnool town, the said [ENTITY] and the 1st defendant postponed to take the amount with an ill motive. Afterwards, the said [ENTITY] died at Gopalpur village on 29-2-1988 leaving behind him the defendants herein as his legal heirs, and even after the death of [ENTITY] the plaintiff asked the 1st defendant at several times to take the entire sale consideration and to execute the registered sale deed in his favour. But, the 1st defendant refused to take the amount and to execute the registered sale deed inspite of several requests made by the plaintiff. At last, the plaintiff got issued a legal notice dated 21-12-1988 (Ex.A2) to the defendants, for which, the defendants gave a reply dated 12-1-1989 (Ex.A5) through an advocate. It is further stated that the defendants being the legal heirs of the deceased [ENTITY] and in possession and enjoyment of the properties of the deceased [ENTITY], are under a legal and pious obligation to perform and fulfil their part of the contract, which was left unperformed and un-fulfilled by the deceased [ENTITY]. The plaintiff is ready and willing to perform his part of the contract. The plaintiff several times offered the defendants to receive the balance sale consideration of Rs. 18,500/-. Now also, the plaintiff is ready to deposit the balance sale consideration in the Court to show that he is ready and willing to perform his part of the contract. As the defendants refused to perform their part of the contract, the plaintiff is entitled to sue the defendants. It is stated that the cause of action arose on 17-10-1987, i.e., on the day on which [ENTITY] executed the agreement of sale in favour of the plaintiff, and on 21-12-1988, on which day, the plaintiff got issued the legal notice to the defendants, and on 12-1-1989 on which day the defendants gave a reply to the said legal notice.
4. The defendants filed a written statement admitting the relationship that the plaintiff is the brother of late [ENTITY], but disputed the averments made in the plaint. They have stated that it is false to state in the plaint that the husband of the 1st defendant has made a contract with the plaintiff to sell the land bearing [SECTION] admeasuring Ac.2-00 situated in the limits of Sampatraopally village and took an advance of Rs.500/- and executed an agreement. They have stated that the agreement is a false and fabricated one and it is created with the assistance of his henchmen. The husband of the 1st defendant died on 29-2-1988. It is stated that prior to his death, he was suffering with urinal disease since 4 years, and he was on the bed during the 4 years and he could not move anywhere without the assistance of the 1st defendant, and during his life time, the plaintiff never approached him and the 1st defendant with money towards the sale transaction, and even after his death also, the plaintiff never approached the 1st defendant to pay the amount of the alleged sale as alleged in the plaint, and it is a concocted story. There is no whisper at any time regarding the sale of the land. On receipt of the legal notice issued by his Counsel to the defendants, Ex.A5 reply notice was sent through their Counsel on 12-1-1989. It is stated that the plaintiff has no cause of action to file the suit against the defendants, and therefore, the suit is liable to be dismissed in limini.
The trial Court framed the following issues:
"1. Whether the plaintiff is entitled for specific performance of the contract and for recovery of possession of the suit land?
2. Whether the plaintiff has valued the suit property and whether the market value of the suit land exceeds the pecuniary jurisdiction of this Court?
3. To what relief?"
5. The name of the plaintiff is [ENTITY]. [ENTITY] is examined as PW1, and he stated that he is the plaintiff. The 1st defendant is his sister-in-law i.e., the wife of his elder brother [ENTITY]. Defendants 2 to 5 are the children of the 1st defendant. His elder brother [ENTITY] sold him the suit land for a consideration of Rs.9,500/- per acre and he paid Rs.500/- as advance and obtained Ex.A1 agreement. He stated that in the agreement, it was agreed that the balance of consideration has to be paid in two instalments, and the 1st instalment has to be paid on the [ENTITY] day falling next to Ex.A1 and the 2nd instalment has to be paid on the next [ENTITY]. On the 1st [ENTITY] after Ex.A1, he went to his brother with Rs.9,250/-. His brother told him that he would receive that amount after his return from Kumool. Again after the return of his brother from Kurnool - in a week, he went to his brother with money, but he refused to receive the amount. Six months after his return from Kumool, his brother died. After his death, he asked the 1st defendant to receive the consideration and to execute a regular registered sale deed and to give him possession of the land. But, the 1st defendant refused to take the consideration and to execute the registered sale deed. He stated that he deposited the balance of sale consideration in the Court. The defendants are the legal heirs of his brother [ENTITY]. Ex.A1 was written by [ENTITY], who is a resident of his village, and Ex.A1 was attested by [ENTITY]. In the cross-examination, he stated that one day prior to Ex.A1, the advance of Rs.500/- was paid by him at the house of his brother in the presence of one [ENTITY] (PW4). At the time of Ex.A1, PWs.2, 3 and 4 were present. Eight days prior to 1st [ENTITY] after Ex.A1, he went to his brother with Rs.9,250/-, and at that time, [ENTITY], [ENTITY] were present. At that time, his brother and the 1st defendant were going to Kumool. On the day of [ENTITY] festival, they returned. Two or three days after that day, he again went to his brother. Then also, he went to his brother with money alongwith [ENTITY] and [ENTITY]. After the death of his brother, he offered the money to the 1st defendant, but she also refused to receive the money and sell the land. He denied the suggestion of the defendants' Counsel that it is not true to say that he fabricated Ex.A1 and filed the suit and he has not attempted to send the amount by way of Bank Demand Draft or money order.
6. PW2 is one [ENTITY], the scribe of Ex.A1. In the cross-examination, he stated that in Ex.A1, it was not written, when the advance of Rs.500/-was received by [ENTITY]. The words "reyi manu kunta chelkala na disaku vachchina bhagam" and the survey No.192 were written in different ink in Telugu.
7. PW3 is one [ENTITY], the attestor of Ex.A1. He stated that [ENTITY] told him that he received Rs.500/-as advance one day prior to Ex.A1. But he has not witnessed the payment of advance.
8. PW4 is one [ENTITY], in whose presence, the advance of Rs.500/-was paid. In the cross-examination, he stated that he was sitting during the last adjournment in the Court and he was not having any other case on that date. He stated that he did not know when the deed was written. The advance was paid one day prior to the execution of the deed.
9. The 1st defendant [ENTITY] was examined as DW1. She stated that the plaintiff is the younger brother of her husband, and her husband did not execute Ex.A1, and he has not received any amount under it. Ex.A1 is created. Since 4 years prior to the death of her husband, he was suffering with a disease of kidneys and he was unable to move from the bed and she had been helping him to attend the calls of nature. Even after the death of her husband also, the plaintiff never came to her to pay the amount along with any others. The defendants never agreed to sell the land. She denied the suggestion of the plaintiff and stated that the plaintiff never offered the money either when her husband was alive or afterwards. She also denied the suggestion and stated that it is not true to say that even after filing of the suit, elders held Panchayat and settled and she agreed to give the land at Rs.11,000/- per acre and an agreement was written and she signed on it. She denied the further payment of Rs.1,000/-.
10. In Ex.A5 reply, it is stated that [ENTITY] never executed any agreement, and the agreement is false, and no amount was paid to the husband of the 1st defendant, and it is also false to say that the plaintiff several times came to the husband of the 1st defendant, and after his death to the 1st defendant to give money.
11. On the aforesaid pleadings and oral and documentary evidence, the trial Court held that Ex.A1 is not proved, as the defendants disputed the execution of Ex.A1; and the vender's signature, namely, the signature of [ENTITY], was not proved by filing any comparative material; and PW4 is not an eye-witness for execution of Ex.A1.
12. The trial Court further held that the description of the land in Ex.A1 giving the survey number as 192 is in different ink. The last words, namely, "reyi kunta chelkala na disaku vachchina bhagam" are also written in different ink. This has not been explained as to why these words are written in different ink. The defendants allege that PW3 belongs to a faction and PW1 also belongs to that faction, and therefore, PW3 was speaking falsehood. The learned Trial Judge also held that the plaintiff has failed to prove that he was ready and willing to perform his part of the contract, and even assuming that the plaintiff tendered the amount to the vendor and DW1 and they have refused to take the same, the plaintiff has not tried to send the amount by way of money order or demand draft to show his bona fides and that he is ready and witling to perform his part of the contract and he failed to examine the persons, who were present at the time of tendering the amount, i.e., [ENTITY] and [ENTITY] as stated by PW1 in his cross-examination. The suggestion also made by the plaintiff to DW1 that there was a Panchayat held and the issue was settled and she has agreed to give the said land at the rate of Rs. 11,0007- per acre and an agreement was written and she signed on it and an amount of Rs.1,000/- was paid to the 1st defendant, is also not proved by oral or documentary evidence of the plaintiff, and the so-called settled agreement is not filed in the Court. So, the plaintiff has failed to prove the execution of Ex.A1 by the vendor and the readiness and willingness of the plaintiff to perform his part of the contract. Therefore, the plaintiff is not entitled for the specific performance of Ex.A1 against the defendants and he is not entitled for the suit land. Accordingly, the trial Court dismissed the suit with costs by judgment and decree dated 26-7-1990, and the plaintiff was given liberty to take back the amount of Rs.18,500/- deposited by him in the Court.
13. Aggrieved by the said judgment and decree of the Trial Court, the plaintiff filed the appeal in [CASE NUMBER] on the file of the Subordinate Judge, Wanaparthy.
14. It is pertinent to note that the appellant has specifically taken Ground No.3 about the description of the land in the suit document and the last words of Ex.A1 in different ink, and the said non-explanation of the minor defect cannot become a sole ground for throwing out the entire suit document, which was proved undoubtedly. For the mere discrepancy of the particulars of the land and survey number, which is said to have come to the share of the vendor, cannot be a ground to throw out the entire Ex.A1. It is further stated that Ex.A1 was executed in a village by those, who were not well-versed in such matters of writing documents and as per proper system. The appellant has taken Ground No.4 with regard to readiness and willingness stating that once the execution of Ex.A1 is proved, it is not necessary to go into the fact as to whether the plaintiff was ready to perform his part of the contract. When there is no plea of the defendants and also no issue is framed to that extent, it is illegal to give a finding on the point of readiness and willingness.
15. The Lower Appellate Court has considered the only point for consideration as to whether the plaintiff is entitled for the specific performance of contract of agreement of sale Ex.A1 dated 17-10-1987 and for recovery of possession of the suit land bearing [SECTION] admeasuring 2 acres situated at Sampathraopally village of Weepanagandla Mandal.
16. The learned Subordinate Judge, considering the oral evidence of PWs.1 to 4 and the documentary evidence Exs.A1 to A5, found that PW3 is the attestor of Ex.A1; and PW4 is the eye-witness, in whose presence, the plaintiff has paid the amount of Rs.500/- to the vendor, late [ENTITY]; and the payment of Rs.500/- one day earlier to the execution of Ex.A1 in the presence of PW4 was proved; and held that Ex.A1 was executed by late [ENTITY] agreeing to sell the suit land at the rate of Rs.9,500/- per acre, and the appellant also deposited the balance sale consideration amount in the trial Court along with the suit. The Lower Appellate Court has not at all dealt with regard to Ground Nos.3 and 4 of the plaintiff in the first appeal or with regard to the finding of the trial Court that the plaintiff has failed to prove that he was ready and willing to perform his part of the contract, and held that Ex.A1 proved that the plaintiff has established the execution of Ex.A1 agreement, and the vendor late [ENTITY] received a sum of Rs.500/- from the plaintiff, and accordingly, the plaintiff is entitled for the specific performance of the contract of agreement of sale Ex.A1 and for recovery of possession of the suit land, and accordingly, allowed the first appeal and decreed the suit. Questioning the said judgment and decree of the Lower Appellate Court, the defendants filed this second appeal.
17. At the time of admitting the second appeal, this Court considered that the following substantial question of law arises for consideration.
"Is not the Sub-Court not in error in reversing the judgment and decree of the lower Court in view of the position of the law that the plaintiff can succeed only if he proves that he was ready and willing to perform his part of contract in terms of [SECTION] of the [ACT]?"
The appellants also raised the following substantial questions of law:
Whether the Lower Appellate Court is justified in decreeing the suit, when the plaintiff failed to prove that he was ready and willing to perform his part of the contract and he did not send the sale consideration by way of money order or by way of demand draft and he has failed to examine the persons, who were said to have been present at the time of tendering of the amount to the vendor and the 1st defendant as required under [SECTION] of the [ACT]?
18. In the light of the available oral and documentary evidence, I propose to consider the afore-said substantial questions of law and to whether the Lower Appellate Court is justified in decreeing the suit without setting aside the finding of fact of the trial Court that the plaintiff has failed to prove that he was ready and willing to perform his part of the contract.
19. Admittedly, the plaintiff has not produced any oral and documentary evidence in support of his contention that he has offered the money of the 1st instalment as per Ex.A1 on or before 14-1-1988. It is the case of the plaintiff that he has tendered the money in the presence of [ENTITY] and [ENTITY], but both of them have not been examined. It has to be noted that Ex.A1 is dated 17-10-1987, and the 1st instalment has to be paid on 14-1-1988, and the 2nd instalment has to be paid on 14-1-1989. The vendor late [ENTITY] died on 29-2-1988, i.e., after the due date of the 1st instalment. It is also the case of the plaintiff that after the death of [ENTITY] also, the plaintiff offered the 1st instalment amount to the 1st defendant and she also refused to receive the same. No oral evidence has been adduced by the plaintiff in support of his contention that he has offered the money in the presence of some persons. The plaintiff issued a notice Ex.A2 on 21-12-1988 to the defendants, and the defendants sent a reply vide Ex.A5 dated 12-1-1989 stating that the husband of the 1st defendant never executed the said document and the plaintiff never paid any advance to the husband of the 1st defendant, and the plaintiff never came to the defendants with money. No doubt, the plaint is filed on 18-1-1989 and the plaintiff also deposited the amount into the Court. But, the question that arises for consideration is whether the plaintiff was ready and willing to perform his part of the contract at all material times? As already stated, the 1st instalment is due and payable on 14-1-1988 and the plaintiff has failed to prove that he was ready and willing to pay the said amount on or before 14-1-1988. The trial Court rightly held that as the plaintiff failed to prove that he was ready and willing to pay the 1st instalment, the plaintiff has failed to prove his readiness and willingness to perform his part of the contract, and therefore, the plaintiff is not entitled to specific performance of agreement Ex.A1. The Lower Appellate Court, without dealing with the aforesaid finding of the trial Court and without giving any finding with regard to the readiness and willingness, held that the plaintiff is entitled for the specific performance of agreement of contract under Ex.A1.
20. It is the contention of the learned Counsel for the appellants-defendants that when there was no issue at all in the trial Court with regard to the readiness and willingness, it is not necessary for the Lower Appellate Court to deal with the said contention of the readiness and willingness and the said finding of fact of the trial Court need not be dealt with by the Lower Appellate Court, as there was no issue at all. I am unable to agree with this contention of the learned Counsel for the appellants-defendants, as issue No. 1 framed by the trial Court, also covers the readiness and willingness, and the point considered by the Lower Appellate Court also impliedly covers the issue of readiness and willingness to decide as to whether the plaintiff is entitled for the specific performance of contract of agreement under Ex.A1. I, therefore, hold that the Lower Appellate Court is not justified in reversing the judgment of the trial Court, as the plaintiff has failed to prove that he was always ready and willing to perform his part of the contract, and therefore, the plaintiff is not entitled for the specific performance of contract. Under [SECTION] of the [ACT], if a person violates any term of the contract or wilfully acts at variance or has become incapable of performing the contract and fails to prove that he was always ready and willing to perform his part of the contract, he is not entitled for the decree of specific performance. Under [SECTION] of the [ACT], the jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so: but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal. Under [SECTION] of the [ACT], where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff, the Court may use its discretion not to decree the suit for specific performance. Under [SECTION] of the [ACT], though the contract is not voidable, if the contract is inequitable to enforce specific performance, the Court may use its discretion not to decree for specific performance.
21. The learned Counsel for the appellants-defendants further submits that in the plaint, the plaintiff pleaded that the amount of Rs.500/- was received by the vendor on the same day of execution of Ex.A1 at Gopalapur village of Weepangandla Mandal. But, in the evidence as led by the plaintiff, it is stated by the witnesses that the amount of Rs.500/- was paid earlier but not on the same day. As held by the trial Court, the survey number "192" and the words "reyi manu katta chelkala na disaku vachchina bhagamu" are written in different ink. If those two discrepancies are removed from Ex.A1, it is not known which survey number was agreed to be sold by the vendor. Though the payment of the amount is proved, but, it cannot be said that the entire document Ex.A1 with regard to [SECTION], i.e., the suit schedule property, is proved, as the trial Court clearly held that there are discrepancies. As already stated, the plaintiff failed to prove that he was always ready and willing to perform his part of the contract. As the plaintiff was not ready and willing to perform his part of the contract, he is not entitled for the relief of specific performance, and in support of his contention, he relied upon a judgment of the Supreme Court in [PRECEDENT]. Para 3 of the said judgment reads as follows:
"[SECTION] of the [ACT] provides that the plaintiff must plead and prove that he has always been ready and willing to perform his part of the essential terms of the contract. The continuous readiness and willingness at all stages from the date of the agreement till the date of the hearing of the suit need to be proved. The substance of the matter and surrounding circumstances and the conduct of the plaintiff must be taken into consideration in adjudging readiness and willingness to perform the plaintiffs part of the contract".
As stated above, the plaintiff must prove that he was continuously ready and willing at all times from the date of the agreement till the date of hearing of the suit, and he must prove that he was always ready and willing to perform his part of the contract. In the instant case, the plaintiff has not proved that he was always ready and willing to perform his part of the contract, and there is no proof of offering the payment of the 1st instalment either to the husband of the 1st defendant or to the 1st defendant, and merely because he has deposited the balance of sale consideration into Court, it cannot be said that he was always ready and willing to perform his part of the contract. Admittedly, the possession of the suit scheduled land is with the defendants, and Ex.A1 is not executed by late [ENTITY], and therefore, the trial Court was justified in refusing to decree the suit of the plaintiff. Having regard to the close relationship of the parties and as there are discrepancies in Ex.A1 and as the plaintiff has not proved that he was always ready and willing to perform his part of the contract, the trial Court rightly exercised its discretion vested in it refusing to decree the suit on the ground that the plaintiff was not always ready and willing to perform his part of the contract. So far as the payment of the amount of Rs.500/- is concerned, as it is proved as per the finding of the Lower Appellate Court, the plaintiff is entitled to get the refund of the said amount from the defendants but not entitled for the specific performance of the contract.
22. The learned Counsel for the appellants-defendants placed reliance upon the judgment of the Supreme Court in [PRECEDENT], . Para 5 of the said judgment reads as follows:
"It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the Court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under [SECTION] of the [ACT] (for short 'the Act'). Under [SECTION], the Court is not bound to grant the relief just because there was valid agreement of sale. [SECTION] of the Act envisages that plaintiff must plead and prove that he had 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 those term the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the Court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the Court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendants must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct 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 contract".
In view of the aforesaid rulings, I have no hesitation to hold that the plaintiff has not proved that he was always ready and willing to perform his part of the contract.
23. The learned Counsel for the respondent-plaintiff contended that the conduct of the plaintiff by depositing the entire balance of sate consideration in the Court shows that he was ready and willing to perform his part of the contract, and the plaintiff stated in the plaint itself that he was ready and willing to perform his part of the contract, and by suggesting in the cross-examination that there was a Panchayat held, in which the defendants agreed to sell the land at the rate of Rs.11,000/- per acre, and the defendants did not raise the issue of readiness and willingness, and therefore, it is not open for the defendants to agitate in the second appeal that the plaintiff was not always ready and willing to perform his part of the contract. As already stated; there is a discrepancy in the pleadings and the evidence. In the pleadings, the plaintiff stated that the amount of Rs.500/- was paid on the same date of executing Ex.A1, but in the evidence, the plaintiff stated that the amount of Rs.500/- was paid one day earlier to the execution of Ex.A1, and the so-called" offering of the amount of the 1st instalment in the presence of the persons has not been proved and the said persons have not been examined, and the so-called Panchayat said to have been held is not proved and the subsequent agreement said to have been entered into is also not filed and no evidence is led, and therefore, merely because the plaintiff has deposited the amount into the Court, it cannot be said that he was ready and willing to perform his part of the contract.
24. The learned Counsel for the respondent-plaintiff further submits that under [SECTION] [ACT], unless the Court satisfies that the case involves substantial question of law and the substantial question of law is framed, the judgment of the Lower Appellate Court cannot be reversed or set aside. He has placed reliance on [PRECEDENT], , [PRECEDENT], , [PRECEDENT], [PRECEDENT], . In the instant case, at the time of admission of the second appeal, this Court framed the substantial question of law as stated above, and I also considered the substantial question of law therefore, the aforesaid judgments of the Apex Court have no application to the facts of this case.
25. With regard to the readiness and willingness, the learned Counsel for the respondent-plaintiff placed reliance on the judgments in [PRECEDENT], , [PRECEDENT], , [PRECEDENT], , [PRECEDENT], , [PRECEDENT], and [PRECEDENT], .
26. With regard to the judgments of the Supreme Court in [PRECEDENT]'s case (supra) and [PRECEDENT]'s case (supra), the'respondent has raised the plea in the reply notice and the written statement, and the trial Court also gave a finding that the plaintiff has not proved that he was always ready and willing to perform his part of the contract, and therefore, the ratio of the said decisions of the Supreme Court have no application to the facts of the present case.
27. In [PRECEDENT]'s case (supra), the Supreme Court held that the readiness and willingness cannot be treated as a straight-jacket formula. These have to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned. The Supreme Court further held in the aforesaid case that there was nothing to indicate that the appellant at any stage was not ready and willing to perform his part of the contract. In the aforesaid case, the possession was with the vendee. As already held, in the instant case, the plaintiff has failed to prove that he was ready and willing to perform his part of the contract by paying the 1st instalment on or before 14-1-1988 and he has failed to prove that he was ready and willing by adducing any evidence, and therefore, the trial Court had rightly held that the plaintiff failed to prove that the plaintiff was ready and willing to perform his part of the contract.
28. In [PRECEDENT]'s case (supra), there was a specific averment by the plaintiff that he has deposited the money in the bank more than the sale consideration and the defendant never disputed the said contention and the plaintiff was also ready with the money before the Sub-Registrar's Office, but the defendant was not ready, and therefore, it cannot be said that the plaintiff was not ready and willing to perform his part of the contract. The facts of the aforesaid case have no application to the facts of this case. As already stated, the plaintiff has failed to prove his readiness and willingness to perform his part of the contract and failed to prove that he has offered the 1st instalment amount under Ex.A1 and the 1st defendant or her husband refused to receive the same.
29. The last case cited by the learned Counsel for the respondent-plaintiff is [PRECEDENT]'s case (supra). In the said case, while upholding the pleading of the party that he was ready and willing to perform his part of the agreement and that he has led evidence in that behalf, the matter was remitted to the District Court to frame the issue on the basis of the previous judgment and the issue in this behalf was required to be settled. The aforesaid judgment has no application to the facts of this case, as the issue with regard to the readiness and willingness is implied in issue No.1 framed by the trial Court and also in the point considered by the Lower Appellate Court, and the trial Court gave a specific finding that the plaintiff has failed to prove that he was ready and willing to perform his part of the contract and the plaintiff has failed to prove that he has offered the 1st instalment amount as per Ex.A1, and the Lower Appellate Court has not at all dealt with the readiness and willingness of the plaintiff.
30. I, therefore, set aside the judgment and decree of the Lower Appellate Court in [CASE NUMBER] and the plaintiff is not entitled for the specific performance of the contract. But, as the payment of the money was proved under Ex.A1, the plaintiff is only entitled for the refund of the said advance amount of Rs.500/- along with interest from the defendants. Accordingly, the suit in [CASE NUMBER] is partly decreed directing the defendants to refund the amount of Rs.500/- along with interest at 12% per annum from the date of filing of the suit till the date of refund creating charge over the property for the refund of the amount within two months from the date of receipt of this judgment.
31. The second appeal is accordingly allowed. Having regard to the facts and circumstances of the case, there shall be no order as to costs. Each party shall bear their own costs.