D.B. Deshpande, J.
1. Plaintiff's suit for specific performance was dismissed by the trial Court but is decreed by the Appellate Court and that is why defendants Nos. 1 to 4 have field this second appeal which arises out of the following facts.
2. Defendants No. 1 was the owner of the suit property. He agreed to sell it to the plaintiffs, who was already in possession, on 12-7-1971 for an amount of Rs. 1,500/- and an earnest receipt, Exh. No. 34 for Rs. 250/- was executed on that day. Under the terms of the contract, an amount of Rs. 250/- was to be paid by Bhadrapad Vadya Padva and the remaining amount of Rs. 1000/- was to be paid on Diwali Padva of the same year. It was further stipulated in the earnest receipt that if the plaintiff failed to pay Rs. 250/- on Bhadrapad Vadya day, the plaintiff would forfeit his right over the suit property and would also forfeit the previous amount paid by him and there was a similar stipulation for failure to pay Rs. 1000/- on Diwali Padva day. Admittedly, amount of Rs. 250/- was not paid on Bharapad Padva day, but the plaintiff paid Rs. 550/- to defendant No. 1 on 9-10-1971, on which date defendant No. 1 executed receipt Exh. No. 35, in favour of the plaintiff. The plaintiff also further alleged that he again paid Rs. 200/- to defendant No. 1 on 15-11-1971 without any receipt. He alleged further that he requested defendant No. 1 to execute the sale deed on 25-11-1971, but the defendant No. 1 avoided to do so and later on refused to execute the sale deed on 30-11-1971. As defendant No. 1 was trying to sell the property to other persons, the plaintiff filed this suit for specific performance of the contract after accepting Rs. 500/- from him.
3. Initially, the suit was filed only against defendant No. 1, but the property was sold to defendants Nos. 2 to 4 under a registered sale deed, and hence defendants Nos. 2 to 4 were impleaded in the suit.
4. Defendant No. 1 resisted the plaintiff's claim. He denied that on 25-11-1971 he had avoided to execute the sale deed and that the plaintiff requested him to execute it. He also denied that on 30-11-1971 he refused to execute the sale deed. He contended that the amount of Rs. 800/- only was received by him and that this amount is not refundable to the plaintiff according to the terms and conditions of the contract. He contended that on 2-12-1971, he sent a notice to the plaintiff and that the plaintiff did not even care to reply the same. He contended that he sold the house to defendants Nos. 2 to 4.
5. Defendants Nos. 2 to 4 also filed separate written statement and they resisted the claim of the plaintiff. They contended that the plaintiff's suit is not maintainable. It is significant to note that they did not raise any contention to the effect that they were bona fide purchasers of the suit property.
6. Issues were framed and parties led evidence. The plaintiff examined himself and examined one attesting witness to prove the earnest receipt and defendant No. 1 examined himself only. None of the other defendants stepped in the witness box. After considering the entire evidence on record, the learned trial Judge held that the plaintiff failed to prove that he was still entitled to have specific performance of the agreement. He held that the plaintiff proved that he paid only Rs. 800/- to defendant No. 1 instead of Rs. 1,000/- as alleged by him. He held that defendant No. 1 proved that the plaintiff has committed breach of the contract. He also held that the plaintiff's claim against defendants Nos. 2 to 4 was not maintainable. Consequently, he dismissed the plaintiff's suit so far as the specific performance of the contract is concerned. However, he passed a money decree in favour of the plaintiff against defendant No. 1 for Rs. 800/- and directed the parties to bear their costs.
7. The plaintiff carried an appeal to the District Court and the learned District Judge, who heard the appeal, disagreed with the trial Court. The learned District Judge held that it was a contract for the sale of immovable property and that the time was not the essence of the contract. The learned District Judge further pointed out that inspite of the stipulation in the earnest receipt that the first payment of Rs. 250/- was to be paid on Bhadrapad Vadya Padva, defendant No. 1 accepted amount of Rs. 550/- on 9-10-1971, that is, much after Bhadrapad Vadya Padva. The learned District Judge, therefore, came to be conclusion that the original agreement was varied and the defendant No. 1 had waived the earlier stipulation regarding payment of Rs. 250/- on Bhadrapa Vadya Padva. So far as the question of notice, Exh. No. 36, is concerned, the learned District Judge observed that the notice was not for performing the contract, but was based on the assumption that the contract has failed through and by this notice defendant No. 1 asked the plaintiff to vacate the suit property as the plaintiff was in possession. Hence, the learned District Judge, held that time not being essence of the contract, defendant No. 1 is not entitled to avoid contract, and although the learned District Judge, upheld the finding of the trial Court that the plaintiff failed to prove the payment of Rs. 250/-, the learned District Judge held that the plaintiff was entitled to specific performance. But, however, he held that the plaintiff was bound to pay interest at 6 per cent per annum from 1-12-1971 till the date of the suit. Consequently, he allowed the appeal and passed a decree for specific performance as detailed in his order. Feeling aggrieved by this decision, defendants Nos. 1 to 4 have filed this second appeal.
8. Shri S.C. Bora, appearing on behalf of the appellants, urged before me that in a suit for specific performance of a contract, it is always the duty of the plaintiff to aver and prove that he was ready and willing to perform his part of the contract. There can hardly be any dispute about this proposition of law. Shri Bora placed reliance upon three rulings and they are (1) Ardeshir H. Mama v. Flora Sassoon A.I.R. 1928 P.C. 208, Head Note C, wherein it is observed as follows :
'Although, so far as the Act (that is, the Specific Relief Act, 1877) is, concerned, there is no express statement that in a suit for specific performance the averment of readiness and willingness on plaintiff's part up to the date of decree is as necessary as it was always in England, it seems invariably to have been recognized that the Indian and the English requirements in this matter are the same.'
(2) Saral Kumar Chatterjee v. Madhusudan Auddy and Anr. : AIR1964Cal556 , Head Note-A (second part), which runs as under :---
'It is well settled that in cases of specific performance of a contract it is for the plaintiff to prove readiness and willingness as a fact before he can succeed. This is condition precedent to his success and the onus is heavily upon him;'
and the last is K.S. Sundaramayyar v. K. Jagadeesan and Anr. : AIR1965Mad85 , Head Note-A (first part). Therein, it is observed as follows :--
'A plaintiff in a suit for specific performance, should always treat the contract as still subsisting; he has to prove his continuous readiness and willingness, from the date of the contract to the time of the hearing of suit, to perform his part of the contract and a failure to make good that case would undoubtedly lead to a rejection of his claim for specific performance.'
I have already pointed out that there is hardly any dispute about this proposition. It appears that no such contention was raised in the written statement and this point does not appear to have been passed in any of the courts below. But, even then I shall point out from the averments in the plaint that although the plaintiff has not stated in specific words in the plaint that he was ready and willing to perform his part of the contract, there are clear averments made by the plaintiff to the effect that he asked defendant No. 1 to execute the sale deed after accepting money. This is equivalent to his readiness and willingness to perform his part of the contract. In paragraph 5 of the plaint, the plaintiff alleged that the plaintiff requested defendant No. 1 to execute the deed on 25-11-1971, but defendant No. 1 avoided to do so. Again thereafter in the same paragraph the plaintiff averred the lastly defendant No. 1 refused to execute the sale deed by receiving amount on 30-11-1971. In paragraph 6 the plaintiff has averred that defendant No. 1 refused to execute the sale deed for the suit premises on 30-11-1971 inspite of the request to execute the sale deed in favour of the plaintiff and in the last paragraph regarding prayer, the plaintiff has averred that a decree should be passed in his favour after accepting the remaining amount of Rs. 500 from him. All these are averments of the plaintiff regarding the plaintiff's readiness and willingness to perform his part of the contract. Shri Pradip Deshmukh, appearing on behalf of the plaintiff-respondent, was right when he urged that the trial Court had made a misstatement in its judgment by stating that after defendant No. 1 sent a notice to the plaintiff, the plaintiff kept quiet. It seems to be an admitted fact that defendant No. 1 admitted that after he sent a notice to the plaintiff, the plaintiff actually personally approached him. It is but natural to infer that the plaintiff must have approached him in the matter of the agreement and hence there is a clear misstatement on the part of the trial Court in its judgment. The very fact that the plaintiff had approached defendant No. 1 after receipt of the notice goes to show that he was keen in getting the contract executed. Moreover, the learned District Judge has rightly pointed out that the notice, Exh. No. 36, was given by defendant No. 1 not for the performance of the contract, but for asking the plaintiff to vacate the suit premises on the assumption that the contract had failed through, and hence, Shri Bora, appearing for the appellant, cannot take much benefit of the fact that notice Exh. No. 36 was served upon the plaintiff by defendant No. 1.
9. Then Shri Bora contended that both the courts below have rejected the plaintiff's claim that he had paid Rs. 200/- to defendant No. 1 on 15-11-1971. That is a finding of fact and it is binding on this Court. Basing his arguments on this aspect, Shri Bora contended that as the plaintiff has made a false statement about the payment of Rs. 200/-, the plaintiff is not entitled to specific performance of the contract. For this purpose, he relied upon a decision of the Andhra Pradesh High Court in Kommisetti Venkatasubbaya v. Karamsetti Venkateswarlu and Ors. : AIR1971AP279 . No ratio whatsoever is laid down in this ruling. It appears from the facts of this ruling that the plaintiff in that case asserted that he had paid Rs. 1,500/- to the defendant and was willing to pay the balance of Rs. 272/- to the defendant. It was further found that the plaintiff had not paid the same amount of Rs. 1,500/- to the defendant and, therefore, the Court held that the plaintiff was disentitled to discretionary relief of specific performance only on the ground that he has not only set up a false plea, but also that he was not ready and willing to perform his part of the contract. These are observations made on the facts and circumstances of that case and in the instant case I have clearly pointed out that there are several averments made by the plaintiff that he had approached defendant No. 1 who first of all avoided to execute the sale deed and then ultimately refused to execute it.
10. Shri Bora then urged that although it may be assumed for a moment that the day Bhadrapad Vadya Padva for the payment of Rs. 250/- can be treated to have been waived by defendant No. 1, there is nothing to hold that there was waiver so far as the second date of Diwali Padva for the payment of remaining amount is concerned. For this purpose, the answer would be found in the cross-examination of the defendant No. 1 himself. Defendant No. 1 stated that he would have accepted the remaining amount by the end of December 1971 and would have executed the sale deed in favour of the plaintiff. This is sufficient to negative the submission made by Shri Bora in this respect. In my opinion, the learned District Judge was right in reversing the decision of the trial Court and in passing a decree for specific performance of the contract.
11. The result is that this second appeal fails and is dismissed. Looking to the peculiar facts of this case, it will be desirable to direct the parties to bear their own costs and accordingly parties to bear their own costs.