Civil Revision No.837 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.837 of 2011(O&M) Date of Decision: February 4, 2011 Hanif .....Petitioner v. Dhupu .....Respondent CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Pankaj Jain, Advocate for the petitioner. ..... RAM CHAND GUPTA, J.(Oral) C.M.No.3368-CII of 2011 1. Application is allowed subject to all just exceptions. Civil Revision No.837 of 2011 2. The present revision petition has been filed under Article 227 of the Constitution of India for quashing of order dated 3.12.2009, passed by learned Civil Judge, Senior Division, Gurgaon, vide which learned trial Court has directed the petitioner to deposit the balance sale consideration to show his readiness and willingness to perform his part of contract. 3. I have heard learned counsel for the petitioner and have gone through the whole record carefully including the impugned order passed by learned trial Court. 4. It has been contended by learned counsel for the petitioner that the case was fixed for evidence of petitioner-plaintiff when the impugned order has been passed by learned trial Court directing him to deposit remaining sale consideration without making reference to any provision of law. 5. The present suit has been filed for possession by way of specific performance of agreement to sell dated 20.10.2005 by the petitioner-plaintiff on the ground that he was always ready and still ready to perform his part of contract and that he has already paid Rs.40,000/- as Civil Revision No.837 of 2011(O&M) -2- earnest money to the respondent-defendant out of total sale consideration of Rs.85,000/- and however, respondent-defendant was not ready to perform his part of the contract. Case was fixed for evidence of the plaintiff. Plaintiff filed an application under Section 73 of the Evidence Act for examination of handwriting expert to compare the disputed signatures of respondent-defendant on the agreement with his admitted signatures, when the impugned order was passed, which reads as under:- “ Today the case is fixed for reply. Reply not filed. Sought adjournment. Heard. Allowed. Now to come up on 27.1.2010 for filing reply and argument on application under Section 73 of the Evidence Act. The present suit is for specific performance as per plaint sale consideration amount is Rs.85,000/- earnest money of Rs.40,000/- is stated to be paid to the defendant. Accordingly plaintiff is directed to deposit the balance sale consideration on the date fixed.” 6. In a suit for possession by way of specific performance of sale of immovable property, it is a duty cast by the statute on the plaintiff to plead and prove that he was always ready and willing to perform his part of contract and is still ready and willing to perform his part of the contract and willing to pay the balance sale consideration. 7. In the present case, even the very execution of agreement to sell has been denied by the defendant. Hence, I am of the view that there is no such provision under which learned trial Court at this stage can issue any direction directing the petitioner to deposit entire sale consideration. In case the suit will be decreed, Court would be well within its right to direct the plaintiff to deposit the balance sale consideration within some stipulated period. Moreover, the fact regarding readiness of the plaintiff to perform his part of contract is a question of fact, to be proved by evidence being led by both the parties. 8. On the similar facts, against similar orders, revision petitions were allowed by different Coordinate Benches of this Court in M/s.Kapeeshwar Estates Pvt.Ltd. v. Smt.Murti Devi and others (C.R.No.7752 of 2009) decided on 25.1.2010 and Dharam Pal Singh v. Ajit Singh and others (C.R.No.7089 of 2009) decided on 22.12.2009. Civil Revision No.837 of 2011(O&M) -3- 9. As a sequel to my above discussion, the present revision petition is allowed. Impugned order dated 3.12.2009 is set aside to the extent the same directs the petitioner-plaintiff to deposit balance sale consideration. 10. Disposed of accordingly. 4.2.2011 (Ram Chand Gupta) meenu Judge