R.N. Misra, J.
1. The plaintiffs are in appeal against a reversing judgment of the lower appellate court in a suit for specific performance of a contract of sale. Defendant No. 1 was the original owner of the Ka and Kha Schedule lands, and for legal necessity, the plaintiffs allege, she entered into an agreement to sell the properties in dispute on 27-8-57 for a total consideration of Rs. 400/-. Rs. 200/-as a part consideration was paid that day to defendant No. 1 and it is claimed that she put the plaintiffs in possession. The agreement is marked as Ext. 2. It is asserted by the plaintiffs that in spite of repeated demands by them defendant No. 1 postponed the execution of the document and ultimately on 29-11-57 she executed a sale deed in respect of the Kha schedule land of the plaint, which was a part of the contract, under Ext. 2 for Rs. 275/-in favour of defendant No. 2, The sale deed is marked as Ext. A.
2. On the footing that defendant No. 2 had notice of the contract between the plaintiffs and defendant No, 1 the suit for specific performance was filed on 5-1-59. Defendant No. 1 filed a written statement denying the suit contract, but did not contest the litigation at the trial. Defendant No. 2 denied the agreement, delivery of possession, passing of part consideration and took the stand that he was a bona fide purchaser for value without notice.
3. The learned Munsif discussed the evidence at length, but did not record any categorical finding on the question of delivery of possession or passing of consideration. He held, 'I come to the conclusion that the defendant No. 1 definitely entered into a contract to sell the suit land to the plaintiffs as alleged and the deed of contract is genuine and for consideration'. The treatment of the issues in the hands of the trial Court under issue Nos. 3 and 4 shows that they have been very perfunctorily decided though therewas certain evidence on either side. Apart from making a running statement what each of the witnesses had deposed, conclusions were not drawn from such evidence. The trial Court, however, gave a decree to the plaintiffs.
4. Thereupon defendant No. 2 appealed to the lower appellate court. The learned Additional Subordinate Judge reassessed the evidence and took into account the various documents that were placed before him and came to hold that the plaintiffs had failed to prove due execution of the suit agreement and as such the said document cannot be the basis for a suit for specific performance. He negatived the claim of defendant No. 2 under the sale deeds, the first sale deed being a fraud on registration, and the second sale deed being pendente lite. It is against the reversing judgment of the lower appellate Court that this Second Appeal has been filed by the plaintiffs.
5. It is unfortunate that even the lower appellate Court did not examine the evidence with a view to recording positive findings on material aspects that arose for determination in a suit for specific performance. In the facts of the present case, it becomes necessary to find whether there was a valid agreement, whether part performance had been done by the plaintiffs as alleged, and whether in terms of the contract the plaintiffs had been put into possession. Many other aspects which were not very material engaged the attention of the lower appellate Court and, therefore, it lost sight of the real aspects and ultimately disposed of the appeal by holding that the plaintiffs were not entitled to relief.
6. I was myself thinking of going into the matter to reassess the evidence and record findings in exercise of powers under Section 107, C.P.C. But I find, as Mr. Patnaik for the respondents, rightly indicates, that there is want of a basic assertion in the plaint and there does not appear to be evidence to support the stand that the plaintiffs were always ready and willing to perform their part of the contract. It is one of the fundamental requirements in a suit for specific performance that the plaintiffs must assert their such readiness and in case that fact is controverted by the defendants, to prove at the trial that they are ready to perform their pa'rt of the contract, Mr. Patnaik placed before me a decision in AIR 1967 SC 868, Gomathinayagam Pillai v. Palaniswami Nadar. Mr. Justice Shah, speaking for the Court, stated,
'But the respondent has claimed a decree for specific performance and it is for him to establish that he was, since the date of the contract, continuously ready and willing to perform his part of the contract. If he fails to do so, his claim for specific performance must fail'
A decision of the Judicial Committee reported in AIR 1928 PC 208. Ardeshir v. Flora Sassoon was quoted with approval in the said decision. A portion of the view expressed by their Lordships of the Judicial Committee may also be indicated below:--
'In a suit for specific performance, on the other hand, he treated and was required by the Court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed he was required to prove a continuous readiness and willingness, from the date of the contract to the time of the hearing, to perform the contract on his part Failure to make good that averment brought with it the inevitable dismissal of his suit'
In view of what has been indicated by the Judicial Committee in the portion extracted above, it becomes mandatory that not only it should be averred in the plaint, but also it should be stated in Court during trial, otherwise readiness until the end of the trial cannot be indicated at the time of filing of the suit. Keeping this aspect in view. I looked into the plaint and deposition of P. W. 5, one of the plaintiffs, I find that there is clear absence of such an averment in the plaint. P. W. 5 Is also silent about this aspect of the matter. In the circumstances, it is difficult for me to hold with Mr. Mohanty on the basis of the statement in para. 3 of the plaint that the plaintiffs had demanded performance of the contract and defendant No. 1 on some plea or other had postponed the performance and, therefore, it is sufficient to hold that there was readiness on the part of the plaintiffs to perform their part of the contract. On the aforesaid finding, that there is no assertion in the pleadings nor evidence in Court that there was readiness from the date of contract until the date of decree to be passed, the suit is bound to fail. I, therefore, do not propose to go into the assessment of the evidence or record findings which Courts below have failed to do.
7. One aspect, however, remains to be answered. There seems to have been a positive finding by the trial Court that consideration had passed in part to the extent of Rs. 200. The lower appellate Court has not vacated the finding. I also looked into the evidence and I am prepared to hold that the finding of the trial Court must be accepted as being based on evidence. P. Ws. 2 and 3 have clearly deposed about passing of consideration of Rs. 200 on the date of the contract On this basis once specific performance is refused, the part payment which had been made by the plaintiffs to defendant No. 1 must be ordered to be refunded. I would, therefore, give a direction that defendant No. 1 must refund Rs. 200 together with interest at the rate of 6 per cent perannum to the plaintiffs from the date of the breach.
8. The Second Appeal fails and is dismissed. Parties will bear their own costs Of this litigation throughout.