-1- GPN-J-2459-ARHCBN-3-04-1,00,000-ALA4* [Spl.-H.C.,A.S.,C.D.79e. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. SECOND APPEAL No. 397/2008 Nilkanth Atmaram Dhopey - versus- Pramod Mahadeorao Dal ----------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram appearances, Court's orders or Directions Court's or Judge's Orders. And Registrar's Orders. ----------------------------------------------------------------------------------------------------------------------------------- CORAM : B.P.DHARMADHIKARI, J. DATED : JANUARY 22, 2009. Heard Advocate Shri J.B. Kasat, for appellant/original defendant and Advocate Shri A.V. Bhide, for respondent/original plaintiff. Challenge is to concurrent judgments and decrees delivered by the Courts below decreeing the suit for specific performance filed by the present respondent. After hearing the parties, I am satisfied that the question whether Lower Appellate Court has exercised jurisdiction available to it in accordance with law, is involved in the matter. Advocate Shri Kasat, has pointed out that agreement for sale was executed on 06.06.2001 and 30.03.2002 was dated fixed by the parties for execution of sale deed. The Lower Appellate Court has not considered the evidence on the point of -2- readiness and willingness of the respondent / plaintiff and he contends that the respondent / plaintiff has not proved that he was continuously ready and willing to perform his part of the agreement. He contends that the observations to the contrary made by the Trial Court are perverse and contrary to the evidence. He states that the Lower Appellate Court was expected to apply its mind afresh and to arrive at a finding when respondent / plaintiff was ever ready and willing to perform his part of the contract. He invites attention to the consideration on point no.2 by the Lower Appellate Court in paragraph no.29 of its judgment and states that the said consideration is inadequate to show that the respondent was ready and willing to perform his part of contract. Advocate Shri Bhide, for respondent / plaintiff points out that the defendant is father-in-law as also maternal uncle of the plaintiff and therefore there is oral evidence on record to show efforts made by the respondent to obtain specific performance. He states that the trial Court has correctly appreciated the evidence. He further states that as there was no serious challenge before the Lower Appellate Court, the Lower Appellate Court has not considered that evidence at length. He further invites attention to consideration by Lower Appellate Court in paragraph -3- nos.20 to 26 to point out how the frivolous defence raised by the present appellant in appeal are dealt with. According to him, that consideration is sufficient to show that the present respondent/plaintiff was ready and willing to perform his part of the contract. The obligations cast on Appellate Court are well settled and reference can be made to the judgment of Hon'ble Apex Court in the case of Santosh Hajari .vrs. Purushottam Tiwari ( 2001 [2] Mh.L.J. 786). Here as the suit was for specific performance, the Appellate Court was expected to apply its mind afresh and to find out whether readiness and willingness as required by Section 16 of the Specific Relief Act was proved by the respondent / plaintiff. The entire judgment of Lower Appellate Court does not disclose any such effort. Though Advocate Shri Bhide, has attempted to read the judgment of Lower Appellate Court and also wanted to show the evidence which is part of record, it is clear that this Court cannot substitute its own finding in place of the findings of fact to be recorded by the Lower Appellate Court. In the circumstances, the question formulated above is answered in favour of the present appellant and against the respondent. Accordingly -4- the impugned judgment dated 30.06.2008 delivered in Regular Civil Appeal No. 33/2007 by the Additional District Judge-I, Yavatmal is quashed and set aside. The said Appeal is restored back to file for its consideration on the point of readiness and willingness of plaintiff in the matter as mentioned above. Rule accordingly. No cost. As the matter is sent back, the court below shall decide the appeal as early as possible and in any case by 30.06.2009. Parties to appear before the Lower Appellate Court on 16.02.2009 and to abide by its further directions. JUDGE Rgd.