Patna High Court
Diwali Lal And Ors. vs Sardar Baldev Singh And Anr. on 27 February, 1985
Equivalent citations: AIR1985PAT344, 1986(34)BLJR114, AIR 1985 PATNA 344
JUDGMENT Ram Nandan Prasad, J.
1. This appeal by the defendants, is directed against the decision given by the Additional Subordinate Judge, VIth Court, Patna, whereby he decreed the suit of the plaintiffs for specific performance of contract.
2. The case of the plaintiffs is that defendant No. 1 Diwali Lal and father of defendant No. 3, namely, late Hazari Lal who were full brothers, were carrying on business under the name and style of Bhagwan Das Baijnath Lal at Padri Ki Haveli, Patna City. After the death of Hazari Lal, defendants Nos. 2 and 3 carried on the said business along with defendant No. I under the Kartaship of the latter. Their business, however, suffered loss and they became indebted to different persons and eventually the business was closed in 1971. They used to take loans from the plaintiffs as well and they had become debtor to them to the tune of Rs. 34000/-. They owed money to the other creditors as well. When the creditors started pressing for the repayment of the loans the defendants decided to sell the suit property which is a double storied building over an area of 68 karris bearing plot Nos. 2492 and 2493 situate in Mohalla Kasera Galli, within Khajekalan Police Station. When they proclaimed for the sale of the said building, the plaintiffs offered to purchase the same for a consideration of Rs. 80,000/-. Considering the amount offered by the plaintiffs to be reasonable, the defendants agreed to sell the building to them for the said consideration. Accordingly, the details of the terms were settled and the defendants accepted Rs. 1,000/-as earnest money and executed an agreement to sell on 29-11-1974. According to the agreement, a sale deed was to be executed by the defendants by 15-12-1974 on being offered Rs. 45,000/- by the plaintiffs at the time of the execution of the sale deed after adjustment of their dues to the tune of Rs. 34,000/- and the earnest money of Rs. 1,000/-. On 12-12-1974 the plaintiffs purchased requisite stamps for the sale deed from the Patna Treasury in the name of plaintiff No. 1 and made over a draft of the sale deed to defendant No. 1 for approval. He offered to pay balance of the consideration money at the time of registration of the sale deed, but the defendants went on evading the execution of the sale deed. When the plaintiffs found that the defendants were not willing to execute the sale deed in spite of repeated requests made by them, they instituted the present suit for specific performance of contract on 14-3-1975.
3. The suit was contested by the defendants. One written statement was filed by the defendant No. 1 and the other by defendants Nos. 2 and 3, but the case put forward in both the written statements was the same. They have admitted that they were carrying on business under the name and style of Bhagwan Das Baijnath Lal, but according to them, this business was closed when a partition took place in the family in 1969 and in course of which all the family properties were partitioned. According to them, the suit property fell in the share of one Bangali Lal in the said partition and since then he is coming in possession thereof as exclusive owner and these defendants have nothing to do with the same.
4. The defendants have, however, admitted that their joint family had incurred a debt of about of Rs. 80,000/- and defendant No. 1 was asked to pay off the debts by selling the family assets like utensils etc. and holding No. 32/24. Accordingly, the defendant No.1 sold the utensils of the firm and the said holding and paid off the entire debts of the joint family. The defendants have denied that they owed a sum of Rs. 34,000/- to the plaintiffs, but they admitted that they had taken some loan on handnote and Hatchita from them which they claimed to have repaid to them.
5. The defendants have emphatically denied to have entered into any contract for sale of the suit property with the plaintiffs or to have executed the alleged agreement to sell. Their plea in this regard is that one Bhola Pd. used to do Pairvi for them in their cases and, in course of doing Pairvi on their behalf, he had taken signatures and left thumb impressions of defendant No. 1 on several papers. Defendant No. 1 also made some writings on those papers at his instance. This Bhola Pd. is now dead and they apprehended that, perhaps, the plaintiffs have converted some of those blank papers containing his signatures and left thumb impressions into an agreement to sell. It has also been asserted on their behalf that they could not execute the said agreement with regard to the suit property which has fallen exclusively in the share of Bangali Lal in the aforesaid partition. It has further been stated that the value of the suit property was not less than rupees two and a half lacs at that time and so they could not have agreed to sell it for Rs. 80,000/- only with the plaintiffs.
6. On the pleadings of the parties, the learned Subordinate Judge framed a number of issues and ultimately decreed the suit of the plaintiffs by directing the defendants to execute a sale deed of the suit property in favour of the plaintiffs after accepting the balance consideration money of Rs. 72,000/- only within two months of the date of the decree, failing which the sale deed would be executed by the court at their cost. The plaintiffs were also directed to pay the balance consideration money of Rs. 72,000/- to the defendants within the said two months, failing which their claim would stand forfeited. We have been informed by the learned counsel for the respondents-plaintiffs that they have already deposited the said sum of Rs. 72,000/- within the period fixed by the Court.
7. While decreeing the suit in the terms aforesaid the learned Subordinate Judge recorded the following findings : --
(i) The agreement to sell (Ex. I) was a valid and genuine document which was duly executed by the defendants.
(ii) The learned Subordinate Judge, however, found that the plaintiffs were entitled for an adjustment of only Rs. 7,000/- towards their dues from the defendants, besides the adjustment of Rs. 1,000/- paid as earnest money to the defendants. So, he concluded that the plaintiffs were required to pay Rs. 72,000/- as balance of the consideration money for getting the sale deed executed by the defendants and he, therefore, passed a decree in the terms as stated above.
(iii) The defendants had failed to prove that the suit property was valued at rupees two and a half lacs at the relevant time.
(iv) The defendants had also failed to prove that there was a partition in 1969 at which the suit property was exclusively allotted to Bangali Lal.
(v) Bangali Lal was not a necessary party to the suit as he was a stranger to the contract.
8. Mr. Guneshwar Prasad, learned counsel who appeared on behalf of the defendants-appellants, challenged the aforesaid findings which have been recorded against them by the learned Subordinate Judge. The plaintiffs-respondents have, however, not filed any cross-objection in respect of the findings recorded against them by the learned Subordinate Judge.
9. The first submission of Mr. Prasad was that the learned Subordinate Judge was not right in holding that the defendants had failed to prove the partition of 1969 and that the suit property had fallen in the exclusive share of Bangali Lal. In my opinion, it was wholly unnecessary for the learned Subordinate Judge to go into these questions as it was beyond the scope of a suit for specific performance of contract. Apart from it, the contract, if any, can be enforced only against a person who is a party to it and not against a person who is not a party to it; but the person who is a party to the contract for sale is bound to execute the sale deed if other terms are fulfilled by the purchaser, even though the property in question might not be belonging to him, as in that case the purchaser would take the risk of purchasing from him with his open eyes. It is obvious that the person to whom the property might legally belong cannot be bound by that sale, but all the same the parties to the contract would be bound by the contract to sell and the purchaser under the contract can enforce the vendor under the contract to perform his part of the contract. In such circumstances, I leave the question of title over the suit property open to be decided in a properly framed suit.
10. In the next place, it was submitted by Mr. Prasad that the learned Subordinate Judge was unjustified in holding that the agreement to sell (Ext. 1) was a valid document. But in my opinion, the finding of the learned Subordinate Judge in this regard is unassailable. This agreement shows that defendant No. 1 as well as defendant No. 3 had written the execution portion in their own pen and had also put their left thumb impressions thereon. Defendant No. 2 Srimati Jagat Roshan Devi (mother of defendant No. 3), who is illiterate, had simply put her left thumb impression thereon. All these thumb impressions were sent for comparison to the expert of the Police Laboratory, C.I.D., Bihar, and the report (Ext. 8-A) is that those thumb marks tallied with the admitted thumb marks of these three persons. So far as the writing of the execution portion and the signature of defendant No. 1 are concerned, they have been admitted by defendant No. 1 himself. He has admitted in his evidence that the execution portion is under his pen and signature. Defendant No. 3 was not examined to deny the execution and signature purported to be in his writing thereon. The execution portion admittedly written by defendant No. 1 Diwali Lal is as follows : --
^^l% fnokyh yky olhdk csbZcksvkuk fy[kk lks lgh nq:Lr gS etewu i<dj le> fy;k 1000@&,d gtkj :i;k ik;k bteyu [kkl 29&11&94** In the face of this writing which has been admitted by defendant No. 1 it would be too much to say that the plaintiffs had got blank paper containing the signature and left thumb impressions of defendant No. 1 converted into this document. Apart from the fact that there is no evidence to substantiate this plea of the defendants, the contents of the execution portion disprove this plea entirely, as there is a clear admission that he was executing a deed of agreement to sell and further that he had received Rs. 1,000/- in cash. Then, the date 29-11-74 is also in his own pen. It is unbelievable that this defendant could give a blank paper containing these writings to his pairvikar Bhola Pd. long ago. Not only that, this document contains the full signature of this defendant No. 1 at four places in the deed where overwritings were made by the scribe. There could be no occasion for this defendant to put such signatures in the body portion unless this document was a genuine document. The execution portion said to be in the writing of defendant No. 3 Om Prakash is almost identical. As said above, he has not come to the witness box to deny this writing including his signature. On the other hand, the execution of this deed by the three executants has been duly proved by P.Ws. 2 and 3 who are attesting witnesses to the deed and have claimed to be present when the deed was scribed and earnest money of Rs. 1,000/- was paid to the defendants. Plaintiff No. 1 has also deposed in this regard as P.W.4. Then, the fact that the defendants were indebted to the plaintiffs and that the plaintiff No. 1 purchased stamps worth Rs. 4,000/- on 12-12-1974 also lend support to the case of the plaintiffs. As against these, there is the solitary testimony of defendant No. 1 (D.W.10), but, as said above, it is not possible to accept his evidence in face of the aforesaid materials and circumstances. On a consideration of all the materials on the record, I have no hesitation in agreeing with the learned Subordinate Judge that the agreement to sell (Ext. 1) was duly executed by the defendants, and the said document is a legal and valid document.
11. It was urged by Mr. Prasad that the defendants could not have agreed to sell the house worth Rupees two and a half lacs with the plaintiffs for a sum of Rs. 80,000/- only. In my opinion, this submission is not open to him, as the defendants have miserably failed to prove that the suit property was worth Rupees two and a half lacs. The defendants have examined D.Ws. 1 and 3 on the point of valuation, but they do not seem to be competent to depose on the point of valuation, as held by the learned Subordinate Judge, who has gone into the details of their evidence. Neither of them had seen any property near the suit property being sold in the near past nor had they themselves sold or purchased any property nearabout that place. The defendants did not adduce any other reliable evidence to prove the value as alleged by them. On the other hand, the plaintiffs had produced an unregistered sale deed (Ext. 1/a) executed by the son of defendant No. 1 dated 29-7-74 i.e. only a few months before the agreement (Ext. 1) was executed. This document shows that 21 Karris of land containing a double storied Khapra-Posh house near the suit house was sold for a sum of Rs. 12,000/- only by the son of defendant No. 1. In face of this document it cannot be said that the value of the suit property was rupees two and a half lacs at that time or that the consideration money of Rs. 80,000/- was a low amount for the same. In such circumstances, the learned Subordinate Judge rightly did not attach any importance to this circumstance.
12. In the next place it was submitted by Mr. Prasad that the original plaint did not contain any allegation as required by Section 16(c) of the Specific Relief Act and Form No. 47 of Appendix A of the First Schedule of the Code of Civil Procedure. According to him, such an allegation was brought in the plaint by the plaintiffs by an amendment for which a petition was filed for the first time on 3-10-81 which was allowed by the court on 16-6-82. It was submitted that the court could not allow such a vital amendment after the expiry of the period prescribed for bringing such a suit. It was stated that the suit for specific performance has to be brought within three years from the date fixed for the performance of the contract but in the present case the amendment was sought for after more than five years from the date fixed for the performance of the contract. In this view of the matter, his submission was that the learned Subordinate Judge was wrong in allowing the amendment and, if this amendment is excluded from consideration, the suit should have been dismissed for not complying with the provision of Section 16(c) of the Specific Relief Act and the requirements of Form No. 47, referred to above.
13. Section 16(c) of the Specific Relief Act is as follows : --
"16. Specific performance of a contract cannot be enforced in favour of a person --
(a), (b) ...................
(c) Who fails to aver 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 terms the performance of which has been prevented or waived by the defendant.
Explanation :-- For the purposes of Clause
(c),--
(i) Where a contract involved 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 according to its true construction."
Form No. 47 of Appendix A of the Code of Civil Procedure is also to the same effect. The mandate of Section 16(c) and Form 47 is that in a suit for specific performance of contract it must be averred in the plaint, that the plaintiff has been and is still ready and willing to perform his part of the agreement of which the defendant has had notice.
14. It is by now an established principle of law that a suit not conforming to the requirements prescribed under Form 47 and Section 16(c) of the Specific Relief Act has got to be dismissed. The final court of the land has made the position clear in the case of Prem Raj v. The D.L.F. Housing & Constructions Pvt. Ltd., AIR 1968 SC 135 by making the following observation (at p. 1357) "In the present case there is absence of an averment on the part of the plaintiff in the plaint that be was ready to perform his part of the contract. In the absence of such an averment it mutt be held that the plaintiff has no cause of action so far as the relief for specific performance is concerned."
The same view was reiterated by the Supreme Court in Ouseph Verghese v. Joseph Aleys (1969) 2 SCC 539.
15. As stated above, the plaintiffs had filed a petition on 3-10-81 for amendment of the plaint by incorporating paragraph 9Ka which undoubtedly fulfils the requirement of Form 47 and Section 16(c). The submission of the learned counsel for the appellants, however, is that this amendment should not have been allowed as this petition was filed beyond the period of limitation prescribed for a suit for specific performance and as no amendment should be allowed to bring a cause of action which is completely absent in the plaint when a valuable right had already accrued in favour of the defendants due to the lapse of time. It was submitted that by allowing this amendment the court has deprived the defendants of this valuable right. In support of this submission reliance was placed on a Division Bench decision of the Allahabad High Court in the case of Mahmood Khan v. Ayub Khan AIR 1978 All 463. The view expressed therein by the Allahabad High Court is as follows (at Pp. 468469) :--
"...............We are further of the view that the amendment in such a ease could not be allowed for two reasons; firstly, because a valuable right has accrued to the respondents and, secondly, because the amendment seeks to bring out a cause of action in the plaint, which was conspicuous by its absence in the plaint as originally filed."
16. This view is based on the decision of the Supreme Court in the case of Ganesh Trading Co. v. Moji Ram AIR 1978 SC 484. In this case the following observations were made by the final court of the land (Paras 2 and 5) :--
"Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take."
"................It is true that, if a plaintiff seeks to alter the cause of action itself and to introduce indirectly through an amendment of his pleadings, an entirely new or inconsistent cause of action, amounting virtually to the substitution of a new plaint or a new cause of action in place of what was originally there, the court will refuse to permit it if it amounts to depriving the party against which a suit is pending of any right which may be accrued in its favour due to lapse of time. But, mere failure to set out even an essential fact does not by itself constitute a new cause of action. A cause of action is constituted by the whole bundle of essential facts which the plaintiff must prove before he can succeed in his suit. It must be antecedent to the institution of the suit. If any essential fact is lacking from averments in the plaint the cause of action will be defective. In that case, an attempt to supply the omission has been and could sometime be viewed as equivalent to an introduction of a new cause of action which, cured of its short-comings, has really become a good cause of action. This, however, is not the only possible interpretation to be put on every defective state of pleadings. Defective pleadings are generally curable if the cause of action sought to be brought out was not ab initio completely absent. Even very defective pleadings may be permitted to be cured, so as to constitute a cause of action where there was none, provided necessary conditions, such as payment of either any additional court-fees, which may be payable, or, of costs of the other side are complied with. It is only if lapse of time has barred the remedy on a newly constituted cause of action that the courts should, ordinarily, refuse prayers for amendment of pleadings".
17. So what their Lordships of the Supreme Court intended to say was that defective pleading should generally be allowed to be cured if the cause of action sought to be brought out by the amendment was not ab initio completely absent. But, if the cause of action is not ab initio completely absent, defective pleadings may be permitted to be cured so as to constitute a cause of action where there was none and it is only when if lapse of time has barred the remedy on a newly constituted cause of action that the courts should, ordinarily, refuse prayer for amendment of pleadings. That being the position of law as enunciated by the Supreme Court, it has to be seen as to whether the cause of action sought to be cured was ab initio completely absent in the plaint or whether the pleading was simply defective of the type which could be cured.
18. On a perusal of the plaint it appears that the plaintiffs had made the following allegations in paragraphs Nos. 8 and 9 of the plaint : --
^^8 & ;g fd eqnb;ku us LVsEi Vsªtjh ls veksftc dgus izfroknh ua- 1 o rkjh[k 12&12&74 cjken okLrs rkfey djkus okfldk c; ds fd;k vkSj eqnkysgqe dks pUn okj okLr rkfey djus okfldk c; fuLor tk;nkn etdqj dgk vkSj e'konk oklhdk c; dk fy[kokdj gokys eqnkyg ua- 1 fd;k vkSj eqnb;ku cjkcj ceksftc 'krZ eks 10000@&:p tjsc; cs;kuk oks- eks-
34000@&:- tjs cdk;k viuk tjleu esekstjk nsdj ofd;s eks- 45000@&:i;k ccl ,djkj jftLVjh ofldk c; nk; djds jftLVjh djkus dh vkenk oks rS;kj jgs ysfdu eqnkysgqe vktdy djds fofldkc dh rkfeyh dks Vkyrs jgs vkSj ofldkc; oeksftc 'krZ egknkukecnLr eqnb;ku rgjhj oks rkfey ugh fd;k A 9 & ;g fd ckotqn xqtjrs rk-
15&12&74 ds tks ckctqn vkeknxh oks rS;kjh okLrs vnk;dkjh tjleu ceksftc 'krZ eqnb;ku ds eqnfygqe cjkcj vktdy dgdj rkfeyh ofldkO;; dks Vykrs x;s vkSj vktrd ofldk c; ceksftn 'krZ rgjhj oks rkfey ugh fd;k**
19. From these paragraphs it is apparent that the plaintiffs were always willing to perform their part of the contract and it is the defendants who had been evading the same and that the cause of action arose when the plaintiffs made a number of requests after purchasing the stamps on 12-12-74 for executing the sale deed. In fact the suit was instituted only three months after 15-12-74 which may also indicate the willingness of the plaintiffs to perform their part of the contract. So, in substance, the plaintiffs had alleged in the plaint that they were always willing to perform their part of the contract but the defendants have been evading their part of the contract. So, even if it is conceded for the sake of argument that these allegations did not fully meet the requirements of Section 16(c) of the Specific Relief Act and Form No. 47 of Appendix A of the Code of Civil Procedure, it cannot be said that the cause of action was ab initio completely absent from the plaint. If it was not ab initio completely absent from the plaint, the learned Subordinate Judge was quite justified in allowing the amendment to he made by incorporating a new paragraph No. 9Ka. Indeed, it appears to me that the amendment sought for and allowed was only by way of clarification and not that an attempt was made to introduce a new cause of action through this amendment. If this amendment did not seek to bring out a cause of action in the plaint which was conspicuous by its absence in the plaint, it cannot be said that the learned Subordinate Judge was not justified in allowing the amendment, in view of the observations of the Supreme Court, quoted above. If the amendment allowed by the learned Subordinate Judge is not illegal or improper, the said submission of the learped counsel that the suit has to fail for non-conformance with the requirement of Section 16(c) of the Specific Relief Act and Form 47 of the Code of Civil Procedure must fail.
20. Indeed, it is not open to the appellants to challenge the amendment as this amendment was allowed by the court, subject to the payment of Rs. 50/- as cost to the defendants-appellants. In fact, it appears from the endorsement made against the order dated 16-6-82 that the learned counsel for the defendants had received the said cost of Rs. 50/- from the plaintiffs and had made an endorsement to that effect on 19-6-82 on the margin. In such a situation, it would be deemed that the defendants had acquiesced to the amendment and they would be estopped from challenging the same. So, in any view of the matter, the suit of the plaintiffs would not fail on the ground of non-conformance with the requirements of Section 16(c) of the Specific Relief Act and Form 47 of Appendix A.
21. The last submission of the learned counsel deserves careful consideration and, in my opinion, it has substance and shall prevail. It has been stated in paragraph No. 8 of the plaint that the plaintiffs had offered only Rs. 45,000/- to the defendants in performance of the former's part of the contract and it was stated that they had adjusted Rs. 1,000/- towards earnest money and Rs. 34,000/- towards their dues. So, what was offered by the plaintiffs was only Rs. 45,000/- But, the learned Subordinate Judge has recorded the finding that in terms of the agreement to sell (Ext. 1) the plaintiffs could claim adjustment of only those dues which were based on handnote and, as a matter of fact, he found that only Rs. 7,000/- was due to the plaintiffs from the defendants on handnote and he, therefore, held that the plaintiffs were entitled to an adjustment of Rs. 7,000/- only on account of the dues, besides the sum of Rs. 1,000/- which they had paid as earnest money. He, accordingly, held that the plaintiffs were liable to pay Rs. 72,000/- to the defedants and as such he directed the plaintiffs to deposit Rs. 72,000/- in favour of the defendants within two months whereafter the defendants were directed to execute a sale deed in their favour. The finding of the learned Subordinate Judge in this regard has not been assailed of by the plaintiffs by filing a cross-objection. Moreover, it has been admitted by the learned counsel for the plaintiffs-respondents that the plaintiffs had already deposited Rs. 72,000/- in the lower court as directed by that court by the impugned judgment.
22. I have looked into the agreement (Ext. 1) for ascertaining as to what was the intention of the parties with regard to the adjustment of the dues of the plaintiffs, as no oral evidence can be admissible for ascertaining the terms of the written contract. No doubt, there is an allegation in the agreement that after adjusting the dues of the plaintiffs based on handnotes the plaintiffs had to pay only Rs. 45,000/- to the defendants for performing their part of the contract, but this statement is not consistent with the earlier part of the recital wherein it has been stated that only those dues had to be adjusted which were based on handnotes. The plaintiffs themselves have stated that they claimed set off of a total sum of Rs. 34,000/- on account of dues, out of which, Rs. 15,000/- was advanced on an unregistered mortgage bond (Ext. 5) and Rs. 12,000/- on two Hatchitas (Exts. 9 and 9/a), besides Rs. 7,000/- advanced on handnote (Ext.2). So, the only amount advanced on the basis of handnote was for a sum of Rs.7,000/-only. In fact the plaintiffs have instituted a suit for recovery of the mortgage money based on the unregistered mortgage bond (Ext. 5). So, evidently, they did not intend to get this sum adjusted at the time of execution of the sale deed. The amount advanced on Hatchitas also cannot be adjusted in the present case in view of the clear recital in the agreement deed that only the dues based on handnote were to be adjusted. It appears to me that there was no inconsistency in original draft, but the inconsistency has cropped up as Rs. 45,000/-has been inserted in between the two lines by way of addition, for being paid to the defendants at the time of execution of the sale deed. When the plaintiffs had made it clear in the earlier part of the deed that only the dues based on handnote were to be adjusted and only Rs. 7,000/- was advanced on the basis of handnote, there was no sense in saying that Rs. 45,000/- was to be paid at the time of execution of the sale deed. It would be significant to note that there is no recitation in the deed to the effect that a sum of Rs. 34,000/-was to be adjusted towards the dues. If really the parties intended for an adjustment of the entire sum of Rs. 34,000/-, they could have no difficulty in stating in the deed that a total sum of Rs. 34,000/- was to be adjusted out of which Rs. 15,000/- was advanced on the basis of unregistered mortgage bond and Rs. 12,000/-on two Hatchitas, besides Rs. 7,000/- on handnote. But, this was not done and, on the other hand, a specific statement has been made that only the dues based on handnote were to be adjusted. That being the position, the term regarding the payment of Rs. 45,000/-only cannot prevail over the clear stipulation made earlier that only the dues based on handnote had to be adjusted. 1 am, therefore, in agreement with the learned Subordinate Judge that only Rs. 7,000/- was to be adjusted towards the dues and the plaintiffs were to pay Rs- 72,000/- at the time of execution of the sale deed. In fact, as stated above, the plaintiffs have also deposited this sum of Rs. 72,000/- in terms of the decree passed by the learned Subordinate Judge.
23. So, the position is that the plaintiffs were required to pay Rs. 72,000/- to the defendants before asking them to perform their part of the contract by executing the sale deed but they offered only Rs. 45,000/- to the defendants which was lesser amount than that payable to them. In such a situation it cannot be said that the plaintiffs were willing to perform their part of the contract as they offered only Rs. 45,000/- as against Rs. 72,000. If the plaintiffs did not perform their part of the contract fully and did not show their willingness to do so till the filing of the suit, they could not be held entitled to a decree for specific performance of contract. The learned Subordinate Judge, it seems, has not considered this aspect of the matter and has, therefore, erred in decreeing the suit in the manner stated above. If the plaintiffs did not perform their part of the contract before the institution of the suit, the court could not grant them time to do so at the time of deciding the suit by asking them to dsposit Rs. 72,000/- within two months. For the same reason he could not ask the defendants to execute the sale deed if the plaintiffs deposited the said sum within that period. In this view of the matter, the plaintiffs' suit has got to be dismissed and the present appeal allowed.
24. In the result, the appeal is allowed and the judgment and decree appealed against are set aside. In the peculiar circumstances of the case the parties will bear their own costs throughout.
S. Ali Ahmad, J.
25. I agree.