ORDER [ENTITY], J.
1. Heard Sri [ENTITY], learned Counsel for the appellants and Sri [ENTITY], learned Counsel for the respondents.
2. This second appeal arises out of the judgment and decree dated 21.4.1[SECTION]80 passed by 1st Additional District Judge, Bijnor in Civil Appeal No. 4[SECTION] of 1[SECTION]7[SECTION], [ENTITY] and Ors. v. [ENTITY] and Anr. confirming the judgment and order dated 28.2.1[SECTION]7[SECTION] passed by the Additional Civil Judge, Bijnor in Original Suit No. 2 of 1[SECTION]75, [ENTITY] v. Bau Ram and Ors.
[SECTION]. The facts of the case in brief are that [ENTITY] - plaintiff, (respondent no. 1 to the appeal) (hereinafter referred to as 'the plaintiff) filed Original Suit No. 2 of 1[SECTION]75 for the relief of specific performance of contract on the basis of an unregistered agreement for sale dated 12.8.1[SECTION]74 against [ENTITY]original tenure holder (defendant no. 1 to the plaint and respondent no. 2 to the second appeal) (hereinafter referred to as the defendant no. l), of plot no. [SECTION]0 area admeasuring 5 Bigha 7 Biswa 10 Dhur, situated in village Bakaina, Pargana Basta, District Bijnor. The said agreement for sale was executed by [ENTITY] in favour of [ENTITY]-plaintiff - respondent for a sale consideration of Rs. 20,000/- out of which an amount of Rs. 15,000/- was paid as earnest money in advance at the time of execution of the agreement for sale and the remaining balance amount of Rs. 5,000/- was agreed to be paid at the time of execution of the sale dead which was to be got executed by the plaintiff-respondent by 12.12.1[SECTION]74. On 12.8.1[SECTION]74 [ENTITY]defendant no. 1, the original tenure holder deposited twenty times of the land revenue and became bhumidhar of the land, in dispute. Since [ENTITY] defendant no. 1 evaded execution of the agreement to sell insite of plaintiffs repeated request, he sent a registerede legal notice dated 7.11.1[SECTION]74 through counsel informing him to appear before Sub Registrar, Chandpur on 10.12.1[SECTION]74 for executing the sale deed. Despite notice [ENTITY] did not appear in the office of the Sub Registrar, Chandpur, Whereas the plaintiff was present there and he filed an application before the Sub Registrar regarding his presence. Thereafter on 1.1.1[SECTION]75 the plaintiff-respondent filed Original Suit No. 2 of 1[SECTION]75- [ENTITY] v. [ENTITY] and Ors. in the court of Civil Judge, Bijnor seeking relief of specific performance of contract for directing [ENTITY] to execute sale deed in his favour after receiving the balance amount of Rs. 5000/-in terms of the agreement for sale. An alternative relief of recovery of the earnest money of Rs. 15,000/- along with interest was also sought for. Since, during the tendency of the original suit [ENTITY]defendant no. 1 executed a registered sale deed on [SECTION]1.[SECTION].1[SECTION]75 in favour of [ENTITY] and others- (appellants to the second appeal), they were impleaded as defendants no. 2 to 6 in the original suit on plaintiffs application.
4. [ENTITY] - defendant no. 1 filed his written statement denying the plaint allegations and the execution of the agreement for sale in favour of the plaintiff. In para [SECTION] of the written statement sworn on personal knowledge it has been stated that he had already entered into an agreement for sale of the land, in dispute, in favour of minor children of one [ENTITY] and [ENTITY] for a sum of Rs. 28,000/- and it was due to this reason the plaintiff got annoyed and filed a false suit. However, [ENTITY]defendant no. 1 did not participate in the instant proceedings thereafter.
5. On the other hand the case of the appellants is that [ENTITY]defendant no. 1 had executed an unregistered agreement for sale on 1[SECTION].6.1[SECTION]74 in favour of the appellants for a sale consideration of Rs. 18,000/-, out of which Rs. 6,000/- had been paid, as earnest money and the remaining balance amount of Rs. 12,000/- was to be paid at the time of execution of sale deed. [ENTITY]defendant no. 1 during the pendency of the suit executed a sale deed on [SECTION]1.[SECTION].1[SECTION]75 in favour of the appellant- defendants after receiving the balance amount of Rs. 12,000/- from them. The appellants (defendants no. 2 to 6 to the original suit) filed their written statement dated 28.1.1[SECTION]76 wherein through unnumbered paragraphs they simply denied the averments of the plaint made in paras 1,2,[SECTION],4,5,5/1,6 and 7. Under the heading of Additional submission" in the written said statement in para 1 to para 10 it has been pleaded, inter alia, that, so called agreement to sell executed in favour of the plaintiff-respondent was forged and fictitious; the plaintiff and the defendant no. 1 are in collusion; on 1[SECTION].6.1[SECTION]74 the defendant no. 1 had agreed to sell his land, in dispute, to them and for that he executed an agreement to sell in their favour and also in pursuance of the said agreement for sale, he executed sale deed dated [SECTION]1.[SECTION].1[SECTION]75 in their favour they are bonfide purchasers for value without notice; that they are in possession of the land in dispute and that the plaintiff has never been and possession of the land in suit.
6. On pleadings of the parties 10 issues were framed by the trial court and after evaluating and considering the evidence led by the parties before the trial court (Additional Civil Judge, Bijnor), it decreed the plaintiffs suit with costs for specific performance of contract for sale and for possession over the land in suit against the appellant-defendants directing [ENTITY]defendant no. 1 to execute the sale deed of the land, in question, in favour of the plaintiff on receipt of the remaining balance amount of Rs. 5000/- in terms of the agreement to sell dated 12.8.1[SECTION]74 within two months and in case of default the plaintiff would be entitled to have the sale deed executed through the court on depositing the remaining balance amount of Rs. 5000/- in the court within 15 days after expiry of the said period of two months and that in case plaintiff-respondent defaulted in depositing the said amount the suit shall stand dismissed with costs.
7. The decree was passed exparte against [ENTITY]defendant no. 1. He did not challenge the judgment and order dated 28.2.1[SECTION].7[SECTION] passed by the Additional Civil Judge, Bijnor at any forum but defendants no. 2 to 6 ([ENTITY] and others, present appellants challenged the aforesaid judgment and order by way of filing civil appeal No, 7[SECTION] of 1[SECTION]7[SECTION] before the District Judge, Bijnor who too vide its judgment and decree dated 21.4.1[SECTION]80 dismissed the appeal and confirmed the judgment and decree of the trial court dated 28.2.1[SECTION]7[SECTION].
8. The appellants being aggrieved by the concurrent findings and the judgment and decree of both the courts below preferred the present second appeal on various grounds, inter alia, that, the trial court erred in holding that the sale deed had been executed by [ENTITY] during the pendency of the suit in favour of the appellants, they were not bonafide purchasers for value without notice; the lower appellate court below acted illegally in holding that the sale deed, in question, was hit by the principle of is-pendence and that in any view of the matter the appellants were bonafide purchasers for value without notice and that the agreement executed in favour of the appellants by [ENTITY] - original tenure holder would prevail over the agreement executed in favour of the appellants by [ENTITY]original tenure holder would prevail over the agreement executed in favour of he plain tiff-respondent; the findings of both the courts below were perverse and based on contradictory report submitted by expert in terms of the [ACT]; the courts below acted illegally in ignoring the provisions of [ACT] especially [SECTION] of the said Act; the trial court erred in holding that the agreement to sell executed by [ENTITY] in favour of the appellants was not a valid agreement; the trial court acted illegally in relying upon the testimony of Sri [ENTITY]-handwriting and thumb impression expert, being a non qualified expert; the alleged agreement relied upon by the plaintiff respondent should have been executed by both the parties; the lower appellate court below completely misdirected itself in relying upon the provisions of [SECTION] of the [ACT] which was inapplicable, as there was no valid agreement; the courts below failed to appreciate that no specific performance could be granted in favour of the plaintiff in such situation where there was a sale deed in favour of the appellants and no relief whatsoever was sought for cancellation of the said sale deed; the courts below acted illegally and without jurisdiction inn holding the sale deed executed by [ENTITY] in favour of the appellants to be invalid in as much as no relief for cancellation of the said sale deed was sought for; the plaintiff was not entitled to get the relief for possession against the appellants in a suit filed for the relief of specific performance of contract and the trial court erred in holding that the relief for possession being consequential relief could be granted to the plaintiff.
[SECTION]. The second appeal has been admitted on 27.10.1[SECTION]80 by this Court. Learned Counsel for the appellants has neither pressed any of the grounds raise in this Second appeal nor forwarded any arguments on the said substantial question of law which was formulated as to, "whether the document in question was an agreement to sell". However, he has strongly stressed that as per the mandatory provisions of [SECTION] of the [ACT] (hereinafter referred to as 'the Act') it is provided that specific performance of a contract cannot be enforced through a decree in a suit for ailspecific performance of contract infavour 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 which were to be performed by him, therefore, the burden of averring and proving the aforesaid facts lies exclusively on the plaintiff and the appellant-defendants have no role to play whatsoever in this regard. Sufficient evidence was to be led by the plaintiff in this regard for deciding the issues so framed, meaning there by that the plaintiff respondent has to lead his evidence in respect with the issues which he must prove and thereafter the defendants would get a right to cross examine him. In the present case no issue was also framed on the question of readiness and willingness on the part of the plaintiff. Learned Counsel for the appellants further submitted that issue relating to [SECTION] of the Act is a statutory requirement of law and will have to be established by the plaintiff respondent alone by making necessary averment in the plaint, get a necessary issue framed in this regard and lead his evidence there on to entitle him to a decree of specific performance of contract. Since no issue on the question of readiness and willingness was framed by the trial court, the failure of the suit could be the only conclusion. Learned Counsel for the appellants also submitted that the trial court erred in decreeing the suit while deciding issue no. 6 (to what relief, if any, the plaintiff was entitled to) presuming the existence of the fact by saying that the plaintiff has pleaded and proved that he was and has always been willing and is still ready to perform his part of the contract and while doing so the trial court even did not refer to any evidence. As a matter of fact the said observations made by the trial court were made by way of a conclusion which in its opinion must have been drawn in the earlier part of the judgment and there was no such reference whatsoever with regard to readiness and willingness thereafter. That the lower appellate court also erred in not making any reference to the argument pertaining to the readiness and willingness of the appellant - defendants.
10. Learned Counsel for the appellants further submitted that [SECTION] of the [ACT] (as amended) provides that an appeal can be argued on substantial questions of law formulated by the court. The Proviso to [SECTION] however provides that nothing shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial questions of law formulated by the court. The Proviso to [SECTION] however provides that nothing shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial questions of law, not formulated by it, if it is satisfied that the case involves such question. In the present case the issue pertaining to [SECTION] of the Act is clearly involved and for want of a proper adjudication by the trial court in this regard the suit of the plaintiff respondent had to fail or at least the matter deserves to be remanded back to the trial court for framing the necessary issue in this regard.
11. It has also been argued by the learned Counsel for the appellant that High Court is having unlimited jurisdiction including jurisdiction to determine its own powers, he has relied upon a decision rendered in reference under [SECTION] of the [ACT] reported in AIR 1[SECTION]65 S.C. 745 where in His Lordship Hon'ble [ENTITY], C.J. has held that High Court can formulate the substantial question of law pertaining to [SECTION] of the Act and to remand the matter back to the trial court to be decided afresh. A reference has also been made to [SECTION] of the Act and argued that the plaintiff could have been compensated in terms of money by way of damages and a decree could have been passed for refund of money in terms of the [SECTION] of the Act. He has also referred to the recent decision of the Hon'ble Supreme Court rendered in the case of [PRECEDENT]. , wherein it has been held tht the basic principle behind [SECTION] is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishes throughout entitling him to the specific relief. The provision imposes a personal bar and 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, in this case it has also been observed that [SECTION] of the Act mandates the plaintiff to aver in the plaint and establish as the fact by evidence aliunde that he has always been ready and willing to perform his part of the contract.
12. In support of his arguments learned Counsel for the appellants further relied upon various decisions of the apex Court, decisions of the apex Court, decisions of other High Courts as well as of this Court, in the case of Ramesh Chandra Kesarwani v. Dwarika Prasad and Anr. 2002 (2) ARC 2[SECTION]8, the apex Court in a reference to [SECTION] of the Rules framed under U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1[SECTION]72 (U.P. Act No. XIII of 1[SECTION]72) observed that even in absence of any plea in this regard by the aprties relating to part release of the property in dispute, it is the duty of the court to record a specific finding. A reference has also been made to the decisions given in the case of Smt. Raj Rani Mehrotra v. IInd Additional District Judge and Ors.1[SECTION]80 ARC [SECTION]11. In the case of [PRECEDENT] the issue relating to [SECTION] of the Act was allowed to be raised for the first time in the second appeal. In the case of Rashid and Ors. v. Mst, Bathulan Bibi and Ors. AIR 1[SECTION]82 Alld. III it was held that pure questions of law from the facts as appearing on record can be allowed to be raised for the first time in the second appeal. Reference has also been made to the decisions rendered in the case of [PRECEDENT]. and to the case of [PRECEDENT]. .
1[SECTION]. Learned Counsel for the plaintiff-respondent on the other hand assailing the arguments raised by the learned Counsel for the appellants submitted, inter alia, that in the second appeal the appellants cannot be allowed to challenge the findings of fact recorded by both the courts below and these findings having become final are binding upon the appellants; that [ENTITY]defendant no. 1 against whom the aforesaid decree dated 28.2.1[SECTION]7[SECTION] was passed had not filed any appeal against the said decree although only defendants no. 2 to 6 had filed civil appeal no. 7[SECTION] of 1[SECTION]7[SECTION] before the learned District Judge and that too was dismissed vide its order dated 21.4.1[SECTION]80; that before the lower appellate court the appellants did not challenge the adverse findings recorded by the trial court against them to the effect that the agreement for sale dated 1[SECTION].6.1[SECTION]74 set up by defendants no. 2 to 6 (appellants) was actually prepared on the date of the sale deed dated [SECTION]1.[SECTION].1[SECTION]75 and the said sale deed was not genuine/ bonafide; that the appellants have also not challenged the findings regarding issue no. 6 decided in favour of the plaintiff respondent that he is and always was ready and willing to perform his part of contract. Learned Counsel for the plaintiff respondent further submitted that lower appellate court in its judgment and order has observed that since the sale deed dated [SECTION]1.[SECTION].1[SECTION]75 was executed during the pendency of the suit, the appellants would be bound by the decree of the court and the sale deed would be hit by the principle of lis-pendence. In its judgment the learned lower appellate court observed that the only question, which the appellants could have proved, was that they had a prior agreement, which was executed in their favour by [ENTITY] defendant no. 1 and that agreement would have prevailed over the agreement for sale executed in favour of the plaintiff-respondent but learned Counsel for the appellants did not say even a word against the finding recorded by the trial court in this respect.
14. Learned Counsel for the plaintiff-respondent has also submitted that in the present case [ENTITY]defendant no. 1 did not challenge the judgment and decree passed by the trial court before the lower appellate court and in the appeal also which was filed by the subsequent transferee- appellant-defendants ([ENTITY] and others) before the lower appellate court, that the allegations made in the plaint regarding compliance of [SECTION] of the Act had not been specifically denied by him, therefore, findings recorded by both, the trial court a well as lower appellate court, to the effect that the plaintiff was always ready and still ready to get the sale deed executed cannot be asserted or raised by the appellant-defendants in the second appeal specifically when no such grounds had been raised by the appellants before this Court or lower appellate court. Learned Counsel further submitted that the existence of substantial question of law is sine qua non for the exercise of jurisdiction under the amended provisions of [SECTION] of the [ACT], therefore, unless in the appeal a substantial question of law and the High Court is satisfied that the involves such substantial question of law, the second appeal shall not lie to the High Court and more so the appellant-defendants may not be allowed to set up a new case or raise altogether a new issue at this stage otherwise than that of jurisdiction
15. The relevant provisions of law which seem attracted under the [ACT], 1[SECTION]08, [ACT] (as amended) and the [ACT], 1[SECTION]6[SECTION] are referred hereunder:
[SECTION] of the [ACT] provides an appeal from original decree passed by any court exercising original jurisdiction to the court authorized to hear appeals from the decisions of such courts. [SECTION] deals with second appeal which shall lie before the High Court from every decree passed in appeal by any court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. [SECTION] of the [ACT] reads as follows:
100. Second appeal. (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
([SECTION]) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it i satisfied that the case involves such question.
[SECTION] lays down that no second appeal shall lie except on the grounds mentioned in [SECTION].
[SECTION] deals with the power of High Court to determine issue of fact and reads as under:
10[SECTION]. Power of High Court to determine issue of fact: In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal-
(a) which has not been determined by the lower appellate court or both by the court of first instance and the lower appellate court, or
(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in [SECTION].
16. As per the [ACT] in [SECTION], Pleadings Generally have been dealt with.
[SECTION] reads as, "Pleading" shall mean plaint or written statement;
[SECTION] provides that every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved;
[SECTION] relates to denial of contract. Where a contract is alleged in any pleading, a bare denial of the same by the opposite party shall be construed only as a denial in fact of the express contract alleged or of the matters of fact from which the same may be implied, and not as a denial of the legality or sufficiency in law of such contract;
And [SECTION] deals with verification of pleadings, which reads as follows:
15. Verification of pleadings- (1) Save as otherwise provided by any law for the time being in force, every pleading shall be verfied at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.
(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.
([SECTION]) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.
(4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings.
[SECTION], [SECTION], [SECTION] and [SECTION] read as under:
2. New facts must be specially pleaded -The defendant must raise by his pleading all matters which show the suit not to be maintainable, or that he transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or facts showing illegality.
[SECTION]. Denial to be specific- It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal pecifically with each allegation of fact of which he does not admit the truth, except damages.
5. Specific denial- (1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under a disability, but the Court may, in its discretion, require any such fact to proved.
[SECTION]. Subsequent pleadings- No pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit; but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same.
[SECTION] deals with Settlement of Issues and Determination of suit on Issues of Law or on Issues agreed upon. [SECTION] provides for framing of issues, which reads as under:
1. Framing of issues- (1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.
(2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.
([SECTION]) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.
(4) Issues are of two kinds:
(a) issues of fact,
(b) issues of law.
(5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and (after examination under [SECTION] and after hearing the parties or their pleaders), ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.
(6) Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence.
[SECTION] deals with the materials from which issues may be framed which reads as follows ?
[SECTION]. Materials from which issues may be framed : - The Court may frame the issues from all or any of the following materials-
a) allegations made on oath by the parties, or by any persons present on their behalf or made by the pleaders of such parties;
b) allegations made in the pleadings or in answers to interrogatories delivered in the suit;
c) the contents of documents produced by either party.
[SECTION] provides power to amend and strike out issues, which reads as under:
5 Power to amend and strike out issues-(1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necesary for determining the matters in controversy between the parties shall be so made or framed.
(2) The Court may also, at any time before passing a decree, strike out anyisues that appear to it to be wrongly framed or introduced.
[SECTION] refers to the contents of memorandum of appeals from original decrees and reads as follows:
(2) Contents of memorandum- The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively.
17. In the [ACT] [SECTION] relates to-Interpretation clause, as amended from time to time, defines as follows:
[SECTION]. Interpretation clause.- In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context:
The words "Facts in issue" reads as follows:
The expression "facts in issue" means and includes-any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows.
Explanation- whenever, under the provisions of the law for the time being in force relating to [ACT], any court records an issue of fact, the fact to be asserted or denied in the answer to such issue, is a fact in issue.
The word "Proved" reads as under:
Proved"- A fact is said to be proved when, after considering, the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
[SECTION]. "May presume"- The words "may presume" as defines under [SECTION] reads as under:
May presume"- Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it:
In [SECTION] Under the heading "Of The Relevancy Of Facts" [SECTION] reads as under:
5. Evidence may be given of facts in issue and relevant facts- Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.
[SECTION] defines the word "Admission" as follows:
An admission is a statement, (oral or documentary or contained in electronic form), which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned.
[SECTION] deals with the words "Admissions in civil cases, when relevant- In civil cases no admission is relevant, if it is made either upon an express condition that evidence of it is not to be given, or under circumstances from which the Court can infer that the parties agreed together that evidence of it should not be given.
[SECTION]: deals with Facts admitted need not be proved- No fact need to be proved in any proceeding which the parties there to or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.
(Emphasis supplied) [SECTION] deals with presuming of existence of certain facts and reads as follows:
The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
17A. During the course of arguments much emphasis has been placed on the provisions of [SECTION] of the [ACT]. In order to appreciate the submissions relevant portion of the provisions of [SECTION] needs to be quoted alongwith the explanations which reads as under:
16. Personal bars to relief:
(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 of the performance of which has been prevented or waived by the defendant.
Explanation. For the purpose 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 accordingly to its true construction.
18. After hearing learned Counsel for the parties and after perusing the entire pleadings of the parties available on record, I find that [ENTITY] defendant no. 1 in his written statement filed in original suit before the trial court did not refer to any such unregistered agreement for sale or execution of any sale deed in favour of the appellant-defendants ([ENTITY] and others), even there is no reference of their names. From the record it is clear that the appellant-defendants have not produced the said [ENTITY] as witness to substantiate their case. I also find that in the written statement filed by the apellant-defendants in the original suit in rebuttal there is a simple denial of the averments of the plaint made in paras 1,2,[SECTION],4,5, 5/1,6 and 7. It is also found that this part of denial in the written statement, which is unnumbered, has not been sworn and verified at all by the appellants (defendants no. 2 to 6). The rest of the paragraphs numbered as 1 to 10 have been sworn and verified as to be true on the basis of personal knowledge. In para 6 of the written statement the appellants have not specifically denied the averments made in para 4 of the plaint to the effect that the plaintiff was and is still ready to get the sale deed executed in his favour, though the remaining averment of para 4 of the plaint have been specifically denied with reference.
1[SECTION]. From a bare perusal of the record it is clear that the appellants-defendants no. 2 to 6 have not verified their pleadings (written statement) as required under [SECTION] by not specifying by reference to the initial paragraphs which have been left unnumbered. The appellants have also failed to raise specific plea in the pleadings that suit was not maintainable and was barred in terms of [SECTION] of the [ACT] on the basis of which issue of fact would have arisen as required under [SECTION]. Neither there has been any denial much less specific denial nor by necessary implication, of the averments of the pleadings made by the plaintiff- respondent in para 4 of the plaint to the effect that he was and is still ready to get the sale deed executed in his favour as required under [SECTION] and in absence of which as per the provisions of [SECTION] every allegation of fact in the plaint must be denied specifically otherwise it shall be deemed to be admitted, accordingly the said averments made in the plaint have been taken to be admitted. In the present case, even no subsequent pleadings were filed by the appellant-defendants with the leave of the court. In absence of any dispute or disagreement on specific fact between the parties no issues of fact or any issues of law was framed. In Civil proceedings after the pleadings have been exchanged at the first hearing of the suit settlement of issues and determination of such of issues of law of fact agreed upon are required to be framed by the court in terms of the provisions of [SECTION]. When a material proposition of fact or law is affirmed by the one party and denied by the other party such material propositions shall affirm the plea of distinct issue of fact or issue of law. This framing of issues on which the right decision of the case appears to depend are framed on the basis of the pleadings of the parties by the court after examination under [SECTION] and after hearing the parties on pleadings and thereupon ascertain as to what material propositions of fact or of law the parties are at variance. The materials from which the issues may be framed are the allegations made on oath by the parties or in the pleadings or in answers to interrogatories delivered in the suit or the contents of documents produced by either party. None of these materials as referred to in [SECTION] were present before the trial court. In absence of any such material referred to in [SECTION] there arose no cause for framing any specific issue regarding the maintainability of the suit being barred as per the provisions of [SECTION] of the [ACT].
20. Learned Counsel for the appellants has failed to show from the record that the appellant-defendants at any stage of the case i.e. before the trial court, first appellate court or even before this Court have raised or denied the material propositions of fact alleged by the plaintiff in para 4 of the plaint regarding his willingness and readiness of performing his part of contract. On perusal of the record it appears that the appellant defendants have not at all at any stage prayed for framing of issue of fact or law on the question of bar of the suit in terms of [SECTION] of the [ACT] and thus there never arose a situation for the court to frame additional issue. No ground in relation with the same was also raised by the appellant-defendants in the memo of appeal filed by them neither before the first appellate court nor even before this Court in second appeal. In absence of any such issue having been framed and recorded by the trial court the court presumed the said material proposition of fact alleged by the plaintiff in para 4 of the plaint regarding his readiness and willingness to exist and believed the same on consideration of the matter available before the court which had to believe it to exist and consequently recorded the said fact as proved, as it was taken admission of the appellant-defendants in terms of [SECTION] and [SECTION] of the [ACT].
21. It is settled law that the averments made about readiness and willingness was not straightjacket formula. These have to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned. This aspect was dealt with by the Hon'ble Apex Court in the case of [PRECEDENT] . The Hon'ble Supreme Court in the case of [PRECEDENT] while considering entire case law on the subject matter held at page 1080 as follows:
Whether it was the plaintiff who had committed breach by not being ready and willing to perform his part of contract or whether it was the defendant who had committed a breach of contract by refusing to convey the property in question to the plaintiff in pursuance to the agreement to sell executed by him in favour of the plaintiff has to be ascertained.
In para 10 on page 1082 it was observed as follows:
The real test as to whether or not the plaintiff was ready and willing to perform his part of the contract was for the defendant to call his bluff, in case it was a bluff, by remaining present at the sub-Registrar's office on the appointed day that is to say on August 16, 1[SECTION]77 as he was bound to do if he, on his part, was ready and willing to execute the sale-deed. In fact the lower Courts ought to have considered whether the defendant himself was willing and ready to perform his part of the contract by executing the sale-deed in favour of the plaintiff in discharge of the obligation undertaken under the agreement of sale executed in 1[SECTION]67 in favour of the plaintiff.
22. In the present case looking into the entirety of the facts and circumstances of the case, there is nothing to indicate that the plaintiff at any stage was not ready and willing to perform his part of contract.
2[SECTION]. Learned Counsel for the appellant-defendants though has stressed strenuously on the question of non-maintainability of the suit being barred under [SECTION] of the [ACT] and also that this Court while sitting in second appeal may decide the case on the said point of law and set aside the judgment and order passed by both the courts below. The appellant-defendants have neither raised such ground in the memo of appeal nor they had filed any application for adding additional grounds. During the course of arguments learned Counsel for the appellant-defendants submitted that this Court may suomotu grant any question of law from which arises a substantial question of law. As laid down in [SECTION] of the [ACT] an appeal lies before the High Court from every decree passed in appeal by the subordinate court provided the case involves a substantial question of law but in the present case no substantial question of law but in the present case no substantial question of law but in the present case no substantial question of law has been formulated on the question of maintainability of the suit being barred under [SECTION] of the [ACT] as no such ground has been raised by the appellants. The arguments of the learned Counsel for the appellant-defendants in this respect is of no consequence and the authorities cited by him in support of the same are not applicable in the present case.
24. For reasons stated herein above this Court is not satisfied that any such question of law in terms of [SECTION] of the [ACT] arises in absence of any ground taken in the memo of appeal. [SECTION] of the [ACT] deals with power of the High Court to determine issue of fact which provides that in the second appeal the High Court may if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal which has not been determined by the trial court or lower appellate court or which has been wrongly determined by such court or courts. This Court on perusal of the record also does not find any evidence on record to be sufficient to determine any other issue not framed or recorded by the trial court, as also required under [SECTION] which provides that the memorandum of appeal shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative and such grounds shall be numbered consecutively.
25. For the reasons aforesaid and considering the legal position stated above, I do not find any merit in the second appeal. It is accordingly dismissed with costs through out. The judgment and decree passed by the trial court as affirmed by the first appellate court are hereby confirmed.