FA/1382/1981 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1382 of 1981 For Approval and Signature: HONOURABLE MR.JUSTICE H.B.ANTANI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment? NO 2 To be referred to the Reporter or not? NO 3 Whether Their Lordships wish to see the fair copy of the judgment? NO 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any Order made thereunder? NO 5 Whether it is to be circulated to the Civil Judge? NO ========================================================= HARILAL N SUTHAR - Appellant Versus HIRABHAI S SUTHAR AND ANOTHER – Respondents ========================================================= Appearance : MR RN SHAH for the Appellant. MR KJ VYAS for the Respondents. ========================================================= CORAM : HONOURABLE MR.JUSTICE H.B.ANTANI Date : 10/04/2008 ORAL JUDGMENT 1. This appeal is directed against the judgment and order dated 29-01-1981 passed by the learned Judge, Court No. 17, City Civil Court, Ahmedabad in Civil Suit No. 376 of 1980, by which the learned FA/1382/1981 2/5 JUDGMENT Judge dismissed the suit of the appellant for specific performance of agreement dated 02-03-1979. It is further directed that respondent No. 1 shall refund the amount of Rs. 5,000/- (Rupees Five Thousand Only) together with 6% interest from the date of the suit till realization of the amount of the plaintiff. 2. Being aggrieved by the judgment and order passed by the learned Judge, the present appeal is preferred by the appellant contending inter alia that the learned Trial Court has erred on evidence on record and facts of the case in dismissing the suit of the appellant. The Trial Court has committed error in holding that the appellant is not entitled to the specific performance of agreement dated 02-03- 1979 for want of readiness and willingness on his part. The learned Judge has committed error in drawing inference that the appellant was not ready and willing to perform his part by misreading the plaint as well as evidence on record of the case. The learned Judge misconstrued and misinterpreted the provisions of sub-section (c) of Section 6 of the Specific Relief Act by holding that specific performance of contract cannot be enforced in favour of person who fails to prove that he had performed or he is ready and willing to perform his part of contract. The learned Trial Court has not properly appreciated various documents produced before it in its true perspective while dismissing the suit of the appellant. Thus, the learned Advocate submitted that FA/1382/1981 3/5 JUDGMENT considering the entire gamut of oral deposition and documentary evidence, the appeal deserves to be allowed and the order passed by the learned Judge be quashed and set aside. 3. Learned Advocate Mr. K. J. Vyas for the respondents is not present. Nevertheless, the matter is taken up for final disposal today in the interest of justice. 4. Heard learned Advocate Mr. R. N. Shah for the appellant at length and in great detail and perused the reasons assigned by the learned Judge while dismissing the suit for specific performance of agreement dated 02-03-1979. 5. On considering the evidence on record, the learned Judge held that for the purpose of proving the readiness and willingness, the appellant has not only to aver but also prove that he was ready and willing to perform essential terms of the contract before the decree for specific performance can be granted in his favour. The Court has also to see whether the appellant has complied with the condition precedent as laid down in sub-section (c) of Section- 6 and that one, who seeks equity, must do the equity. The appellant knew very well that respondent No. 2 was in occupation of the suit property as observed in the judgment and even if it is assumed that respondent No. 2 was not the tenant of the suit property and he occupied the suit property as a FA/1382/1981 4/5 JUDGMENT licencee of respondent No. 1, even in that case, the law requires that respondent No. 2 cannot be straigtaway removed from the suit property and in order to get the decree for specific performance of agreement, the appellant has to aver and prove that whatever rights respondent No. 2 has in the suit property, he himself is ready and willing the purchase the suit property and ready to abide by the terms of the agreement produced vide Exh. 29 to the suit. 5. In view of the aforesaid facts and circumstances, the learned Judge, after considering the entire gamut of oral deposition and documentary evidence, held that the appellant has miserably failed to prove the case within the meaning of Section 6 of Specific Relief Act and, therefore, the suit for specific performance of agreement dated 02- 08-1979 was dismissed by the learned Judge. On re- appreciating and re-evaluating the evidence on record of the case, I do not find any substance in the submissions canvassed by the learned Advocate for the appellant, which, in my considered view, would warrant interference by this Court in an appeal. 6. For the foregoing reasons, the appeal fails and is dismissed. [H. B. ANTANI, J.] FA/1382/1981 5/5 JUDGMENT /shamnath