A.L. Bahri, J.
1. This Regular second Appeal has been filed by Jaswant Singh, a defendant, against the judgment and decree of Additional District Judge, Kapurthala, dated April 30, 1984, whereby the judgment and decree dated December 17,1981, passed by the Sub Judge 1st Class was reversed and the suit filed by Karam Singh for specific performance of the contract was decreed. Karara Singh claimed specific performance of an agreement dated December 8, ,977, vide which he had agreed to purchase the land in dispute for a sum of Rs. 24,000/-. A sum of Rs. 1,000/- was paid as earnest money The next instalment was to be paid of Rs. 12,000/- and another instalment of Rs. 11,000/- thereafter. The amount was offered and the defendants were called upon to sell the land. The agreement was entered into by attorney of the defendants, who refused to accept the money on the pretext that he would do so after informing the defendants Karam Singh also claimed to be in possession of the suit land as a tenant even prior to the execution of the alleged agreement. He further alleged that the suit land was sold to Jaswant Singh defendant for a sum of Rs. 40,000/- subsequently, who had prior knowledge of the agreement in favour of the plaintiff.
2. The suit, was contested by the defendants. Jaswant Singh claimed to be bonafide purchaser of the land in dispute, having no knowledge of the agreement of sale in favour of the plaintiff.
3. Another suit was filed by Jaswant Singh that he was a tenant in the land in dispute under the original owner since Khariff 1976 and he purchased the land on August (sic)0,1979. Karam Singh had illegally dispossessed him. Previously he filed a suit for injunction against Karam Singh and others, not to interfere in his possession. Since possession of Karam Singh was illegal, therefore, he (Jaswant Singh) had a right to recover the same.
4. Both these suits were tried together. The trial Court disposed of the same on December 17, 1981, dismissing both the suits. It was Karam Singh, who had filed an appeal in his suit, which was allowed by the lower appellate Court. Hence, the present appeal has been filed by Jaswant Singh-defendant in the suit filed by Karam Singh.
5. Shri H. L. Sarin, Senior Advocate, appearing on behalf of the appellant, has argued that as provided under section 16(c) of the Specific Relief Act, it was required of Karam Singh plaintiff to plead in the plaint and then subsequently prove by producing evidence that he was ready and willing to perform his part of the contract, not only on the relevant dates when under the contract he was to fulfil the conditions of the contract but he was also ready and willing to perform the same at the time of filing of the suit. Section 16 of the Act reads as under :-
'16. Personel bars to relief'-Specific performance of a contract cannot be enformced in favour of a person :-
(a) who would not be entitled to recover compensation for its breach ; or
(b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the Contract ; or
(c) who fails to aver and prove that he has 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 involves 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.'
Learned counsel for the appellant has referred to the decision of this Court on the subject in Dhanna Singh and Anr. v. Malkiat Singh, (1983) 85 P. L. R. 275, wherein it was observed : -
'The words 'ready' and 'willing' have been defined in the Act. However, according, to the Shorter Oxford English Dictionary, Third Edition, the word 'ready' has been defined as 'prepared, or having all preparations made, to do something', and the word 'willing' as 'having a ready will;......... ....... Therefore, the word 'ready' implies that the plaintiff had money at his disposal to pay the sale consideration and the word 'willing' implies that he was inclined to do what was required.'
Reliance was placed on the judgment of the Delhi High Court in Smt. Raj Rani Bhasin and Ors. v. S. Kartar Singh Mehta, A. I. R. 1975 Delhi 137, wherein . clear cut distinction was drawn between readiness to perform the contract and willingness to perform the contract. By readiness, it meant the capacity of the plaintiff to perform the contract, which included his financial ability to pay the purchase price. Further reliance was placed on the decision of Bombay High Court in Abdul Kayum Ahmad v. Damodhar Paikaji Kinhekar, A. I. R. 1964 Bom. 46, and it was observed in Dhanna Singh's ease, referred to above, as under :-
'The plaintiff is required to plead that he tendered the money to the defendant on a particular date and demanded transfer of the property by an instrument. Therefore, if the plaintiff fails to aver and prove the aforesaid ingredients, his suit is liable to be dismissed. In this situation, it cannot be said that the subsequent purchasers cannot raise the above said plea.'
The other decision relied upon by learned counsel for the appellant in Om Parkash v. Sharma Electric Company, (1985-1) 87 P. L. r. 198. In that case the defendant had taken the plea of part performance of the contract. It was observed as under :-
'In the written statement the defendant never pleaded that he had performed or was willing to perform his part of the contract. Unless this case was pleaded the provisions of section 53A of the Act were; not attracted. Admittedly, the defendant never filed any suit for the specific performance of the agreement on the basis of the agreement. Exhibit D-l. Under the circumstances, the amount of Rs. 1250/- paid as earnest money will, stand forfeited.'
The ratio of decisions aforesaid cannot be applied since Specific Relief Act was amended in 1963 and section 16, reproduced above, does not require that the plaintiff must plead that he lad tendered the amount to the defendant and called upon him to perform his part of the contract. What he is required to plead and prove, is only that he had been and was willing to perform his part of the contract i. e. ready and willing to purchase the land under the agreement. On perusal of the plaint, I find that Karam Singh plaintiff had pleaded the requisite ingredients of section 16 of the Act. The Supreme Court in Ramesh Chandra Chandiok and Anr. v. Chuni Lal Sabharwal, A. I. R. 1971 S. C. 1238, observed while interpretting words 'readiness' and willingness in the context of specific performance of contracts, as under :-
'Readiness and willingness cannot be treated as a strait jacket formula. These have to be determined from the entirely of facts and circumstances relevant to the intention and conduct of the party concerned.'
It may be observed that it is from the evidence produced in the case that it is to be determined that the plaintiff was ready and willing to perform his part of the contract at the relevant times i. e. as contemplated under the contract as well as at the time of filing of the suit. It has not been demonstrated that the filing recorded by the lower appellate Court in this respect is vitiated. It was entriely for the lower appellate Court to accept the oral evidence produced by Karam Singh plaintiff on these facts.
6. Shri H. L. Sarin, learned counsel appearing for the appellant, has argued that in view of the provisions of order 41 Rule 33 of the Code of Civil Procedure, a decree may be passed in favour of the appellant against defendant No, 2 for recovery of the money, which the appellant was made to pay while purchasing the land from defendant No. 2. In support of this contention, reliance has been placed upon the decision of Supreme Court in Panna Lal v. State of Bombay and Ors., A. I. R. 1963 S. C. 1516, wherein it was observed as under :-
'The wide wording of Order 41 Rule 33 was intended to empower the appellate Court to make whatever order it thinks fit, not only as between the appellant and the respondent but also as between a respondent and a respondent. It empowers the appellate Court not only to give or refuse relief to the appellant by allowing or dismissing the appeal but also to give such other relief to any of the respondents as 'the case may require.' If there was no impendiment in law the High Court in appeal could, therefore, though allowing the appeal of the defendant-appeallant by dismissing the plainfiff's suit against any or all the other defendants, who were parties to the appeal as respondents.'
No doubt, the provisions contained in Order 41 Rule 33 of the Code of Civil Procedure empower the appellant Court to grant appropriate relief not only to the appellant but also to one of the respondents against another respondent. However, in the facts of the present case, it is not considered appropriate to have resort to this provision, as no body has appeared on behalf of the respondents in this appeal and no counter claim was made by Jaswant Singh in the written statement. It is left to Jaswant Singh to seek his remedy with respect to the sale in his favour in a separate lis. Learned counsel for the appellant also relied upon the decision of this Court in Ajit Singh v. Sham Lal, (1984) 86 P. L. R. 314, wherein in a claim petition under section 110B of the Motor Vehicles Act, it was held that the appellate Court could grant the relief against a respondent, on the basis of joint and severe liability. The ratio of this decision cannot be applied to the case in hand.
7. Finding no merit in this appeal, the same is dismissed. However, there will be no order as to costs.