C.M. Lodha, C.J.
1. This is a plaintiff's special appeal under Section 18 of the Rajasthan High Court Ordinance from the judgment and decree dated 16-2-1972 by Kan Singh, J., whereby the learned Judge set aside the judgment and decree of the trial court and dismissed the plaintiff's suit for specific performance of the contract of sale of agricultural land and substituted a decree for Rupees 4,000/- with interest at 6% per annum from the date of suit till realisation.
2. The suit was instituted against Gujar Singh but he died during the pendency of this appeal and is now represented by his widow Shrimati Kartaro --respondent No. 1. It appears that after the decision by the learned Single Judge Guiar Singh sold away the land in question by a registered sale deed dated 31-3-1978 to Sukhmindra Singh, Balvindra Singh and Veer Singh, who have been also impleaded as respondents Nos. 2, 3 and 4 in this appeal, as transferees during the pendency of this appeal.
3. The plaintiff's case as set out in the plaint is that on 2-9-1967 the defendant agreed to sell the agricultural land in question -- measuring 10 Bighas and 10 Biswas, situated in Chak 24Z, District Ganganagar to the plaintiff at the rate of Rs. 1200/- per Bigha and executed agreement Ex. 1 in his favour. The plaintiff paid Rs. 2000/- to the defendant at the time of execution of the agreement, and agreed to pay the balance of the sale price, at the time of registration of the sale for which the date fixed was 15-1-1968. As regards delivery of possession of the land, it was agreed that possession of a portion of the land under 'kharif cultivation would be handed over to the plaintiff on 13-1-1968 and possession of the other portion under 'rabi' cultivation would be delivered to the plaintiff on 13-4-1968. The plaintiff averred that he was always ready and willing to perform his part of the contract, inasmuch as he had kept the money ready for payment towards sale price and had asked the defendant several times to execute the sale-deed and hand over the possession of the land as stipulated in the document, but the defendant went on evading the issue-The plaintiff goes on to state that he went to the office of Sub-Registrar on the appointed date, that is, 15-1-1968 to pay the price of the land, and to get the sale deed registered, but the defendant did not turn up. Consequently, the plaintiff filed the present suit in the Court ofSenior Civil Judge, Ganganagar on 22-1-1968 praying that a decree for specific performance of the contract of sale of land in question may be granted in his favour. The defendant resisted the plaintiff's suit and while admitting execution of the document Ex. 1 denied the receipt of Rs. 2000/- as part of the purchase price. He also pleaded that the agreement Ex. 1 had been interpolated and thus his plea was that the document being without consideration and forgery having been committed with respect to it the plaintiff was not entitled to any relief. The trial court framed the following issues on the pleadings of the parties:
1. Whether the agreement dated 2-9-1967 is without consideration ?
2. Whether the agreement is void and ineffective in law?
3. Whether the last three lines have been added in the agreement after execution without the knowledge of the defendant ?
4. Since the burden of all the three issues was on the defendant, he led evidence first and examined himself as D. W. 1, D .W. 2 Charandass, and D. W. 3 Shriram. He also produced a copy of the agreement alleged to have been handed over to him by the scribe Ramchander (P. W. 1), and the same has been marked as Ex A-1. In rebuttal the plaintiff examined P. W. 1 Ramchander, scribe of the document Ex. 1, P. W. 2 himself (Kirpal Singh -- plaintiff) and also got exhibited the copy of the agreement contained in the register of the scribe P. W. 1 Ramchander, which is marked as Ex. 2. The learned Additional District Judge, Ganganagar before whom the suit came up for decision, by his judgment dated 27-2-1969 decreed the plaintiff's suit for specific performance. He held that the agreement Ex. 1 was with consideration and Rs. 2000/- had been paid to the defendant as part of the purchase price at the time of execution of the document. He also decided Issue No. 2 against the defendant in light of his finding on Issue No. 1. As regards Issue No. 3 he held that the suit document Ex. 1 had not been tampered with in any manner after execution.
5. Aggrieved by the judgment and decree of the trial court the defendant filed appeal and, as already slated above, the learned Single Judge allowed the appeal, set aside the decree for specific per-formance and awarded a decree for damages instead for Rs. 4000/-. The learned Single Judge held that the plaintiff had averred and proved that he was always ready and willing to perform his part of the contract. However, he came to the conclusion that an alternative obligation was also created by the suit document by which the seller had the option either to fulfil the primary obligation of executing the sale deed and getting it registered on receiving the balance of price or to refund Rs. 2000/- paid to him at the time of execution of the agreement and Rs. 2000/- in addition to that by way of compensation. In this view of the matter, the learned Judge hold that the proper exercise of discretion, in the facts and circumstances of the case, would be to refuse specific performance of the contract and award a decree for Rs. 4000/-.
6. Dissatisfied with the judgment and decree of the learned Single Judge the plaintiff has filed this special appeal.
7. Mr. Rajendra Mehta learned counsel for the appellant, has urged that the learned Judge has not correctly construed the agreement Ex. 1. He has argued that there is no alternative contract contained in the document. It is contended that though a sum has been named in the agreement as the amount to be paid in case of its breach, yet it was only for the purpose of securing performance of the contract and not for the purpose of giving to the party in default an option of paying the money in lieu of specific performance. On the other hand, Mr. Hastimal, learned counsel for the respondents Nos. 2 to 4, has not only supported the finding of the learned Judge on the question of the defendant having an option of paying the money in lieu of specific performance, but has also assailed the other finding by the learned Single Judge on the question of plaintiff's readiness and willingness to perform the essential terms of the contract. He has tried to support the judgment and decree of the learned Judge by arguing that the plaintiff had failed to aver and prove that he was at all material times ready and willing to perform the essential terms of the contract.
8. It is true that the learned Single Judge has decided the question of the plaintiff's being ready and willing to perform his part of the contract in his favour yet it is open to the defendant to assail that finding and support the iudg-ment and decree of the learned Single Judge even on a ground decided against him by the learned Single Judge. We, therefore, think it proper to first deal with the question whether the plaintiff has succeeded in proving that he was ready and willing to perform the essential terms of the contract, which he was required to perform.
9. It is well established that in a suit for specific performance of the contract it is the duty of the plaintiff to aver and prove that he was and is ready and willing to perform the essential terms of the contract. In this connection reference may be made to Section 16(c) of the Specific Relief Act, 1963 (which will hereinafter be referred to as 'the Act'), which provides that specific performance of a contract cannot be enforced in favour of a person who fails to aver and prove that he was 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. An explanation has further been appended to Sub-section (c) which reads as under:--
'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.'
10. Clause (c) is a new one. It lays down a condition precedent to the enforcement of specific performance of a contract. It is based on the maxim 'he who seeks equity, must do equity' and more so in the cases of specific performance. We have, therefore, to see whether the plaintiff has complied with this essential requirement of law for seeking specific performance. In para No. 1 3 of the plaint it has been alleged that the plaintiff paid to the defendant Rupees 2000/- as earnest money or a part of the purchase price on 2-9-1967 and demanded the possession of a part of the land as stipulated on 13-1-1968, but the defendant did not hand over the possession of the same. It is also alleged that in accordance with the terms of the agreement the plaintiff was always ready andwilling to get the sale deed registered on payment of Rs. 10,960/-, balance of the sale price and called upon the defendant several times to accept the money and execute the sale deed and get it registered but the defendant went on evading. It is further stated, that on 13-1-1968 he asked the defendant to execute the sale deed, but the defendant did not comply, nor got the sale deed registered on 15-1-1968 as agreed between the parties, and that on 15-1-1968 he went to the office of the Registrar or Sub-Registrar, Ganganagar, by whatever designation he may be called, with the sale money, but the defendant did not turn up, and thus the defendant neither executed the sale deed nor got it registered. He has also alleged that he has been always ready and will-ins to perform his part of the contract, and is even now ready and willing to do so, but the defendant has committed breach of agreement. In the written statement the defendant, in the first instance, took the plea that he had not received Rs. 2000/- at the time of execution of the document, a plea which was negatived by the trial court and not argued either before the learned Single Judge or before us and then while replying to para No. 3 it was pleaded as below:--
'Para No. 3 of the plaint is denied. The plaintiff did not pay any amount and hence no question arises of delivering possession of the land to him. The defendant is in possession of his land in dispute as usual. All the allegations contained in para No. 3 of the plaint are denied.'
11. It may be noticed that the defendant has not specifically denied the various allegations made by the plaintiff in para No. 3 of the plaint. On the other hand a general denial has been made. Order 8, Rule 3, Code of Civil Procedure lays down that it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff but the defendant must deal specifically with each allegation of fact of which he does not admit the truth except damages. Rule 5 further provides that every allegation of fact in the plaint if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant shall be taken to be admitted except as against a person under disability. Now, in the present case, no doubt, there is a general denial of the allegations contained inpara 3 of the plaint. But there is a specific denial only with respect to receiving Rs. 2000/- at the time of execution of the document. A number of other material allegations contained in that para have not been specifically denied. It is also significant that no issue has been struck on the question whether the plaintiff was ready and willing to perform his part of the contract. However, since in the eye of law the plaintiff is bound to aver and prove the same we must look into the evidence to find out whether the allegation made by the plaintiff as to his readiness and willingness to perform hia part of the contract has been proved. But while doing so. we cannot lose sight of the fact that the defendant's denial in this respect is evasive. P. W. 2 plaintiff Kirpal Singh has stated that he was ready and willing to get the sale deed registered in accordance with the terms of the agreement but the defendant did not comply. He further states that he went to the Registrar's office on the appointed date for getting the sale deed registered, but the defendant did nol turn up. He also states that he took the money with him, but the defendant was trying to back out of the agreement as the prices of the land had gone up. However, he wants the land. In the course of cross-examination he has stated that he had not given any written notice to the defendant for getting the sale deed registered but he did go to the defendant's house many a times. On the other hand, D. W. 1 Gujar Singh defendant has not said a word in this respect.
12. Mr. Hastimal has strenuously urged that the plaintiff has not supported in his statement the various allegations contained in para 3 of the plaint, and that there is nothing to show that he had purchased the stamps for execution of the sale deed and had also got prepared a draft of the sale deed. His contention is that these are the essential terms of the contract which the plaintiff was required to perform, and since he did not do so, he is not entitled to enforce specific performance. We are, however, unable to accept this contention. In order to find out whether the plaintiff was ready and willing to perform the essential terms of the contract which he was required to perform, we have to take into consideration the entirety of circumstances, the conduct of the parties, and the essential terms of the contract.
13. Now, in the first place, the sale deed was to be got registered on 15-1-1968 and the plaintiff lost no time in bringing the suit when he found that the defendant was not willing to execute tha sale deed in his favour. He instituted tha suit promptly on 22-1-1968. Then again the defendant has not said a word that the plaintiff was not ready and willing to perform his part of the contract. On the other hand, the plaintiff has averred as well as stated in no uncertain terms that he had money ready with him, that he had asked the defendant several times to execute the sale deed, in his favour, and accept the money and that ultimately he went to the Registrar's office on the appointed date to pay the amount and obtain the sale deed from the defendant, but the defendant did not turn up. Tha defendant had not the courage to deny these allegations when he came in the witness-box. We further find that his statement has been disbelieved on a very material point viz. payment of Rupees 2,000/- at the time of execution of the agreement, which he has very conveniently denied. It is not the defendant's case nor there is any suggestion that the plaintiff had no funds available with him or was not in a position to arrange for the sale price. In fact, no circumstances have been brought on the record nor any has been pointed out to us as to why the plaintiff would back out and would not be willing to perform his part of the contract, Rather it seems to us that the prices of the land having gone up the defendant wanted to back out of the contract. Thus so far as the conduct of the parties is concerned, we are inclined to think that the defendant is in the wrong box.
14. Coming to the essential terms of the contract, Mr. Hastimal placed great reliance on two decisions of this Court: Mst. Suraj Bai v. Nawab Mohammad Mukarram Ali Khan, ILR (.1969) 19 Raj 508 and Dhanbai v. Pherozshah, 1970 Raj LW 594 in support of his contention that the defendant should have purchased the stamps for execution of the sale deed and should have also got prepared a draft of sale deed. It is important to note that in the agreement Ex. 1 it is nowhere provided that the plaintiff would purchase the stamps and would also get prepared a draft of the sale deed. Thus these are not the essential terms of the contract. It is true that under the T. P. Act unless there is a contract to the contrary it is the duty of the buyer to pay for the stamps as wellas to get a draft of the sale deed prepared. But in the facts and circumstances of the case, we are of the opinion that this was not the essential term of the contract. But apart from that the stage for purchasing the stamps and getting a draft prepared was not at all arrived at in this case, inasmuch as it is not the defendant's case that he wanted to execute the sale deed but was prevented from doing so on account of the omission on the part of the plaintiff to provide money for purchasing stamps and getting! a draft of the sale deed prepared. In this' view of the matter the rationale of the decision in Mst. Suraj Bai v. Nawab Mohammad Mukarram Ali Khan has no application to the facts of this case. So also in Dhanbai v. Pherozshah, there was no allegation contained in the plaint that the plaintiff was always ready and willing to perform his part of the contract. Learned counsel also relied upon Ardeshir v. Flora Sassoon, AIR 1928 PC 208; Gomathinayagam Pillai v. Palaniswami Nadar AIR 1967 SC 868, as also a few cases of other High Courts: Bishwanath v. Janki Devi, AIR 1978 Pat 190, G. Shivayya v. Shivappa Basappa, AIR 1978 Kant 98, Mahmood Khan v. Ayub Khan, AIR 1978 All 463 and Andhra Paper Mills v. State of Andhra, AIR 1961 Andh Pra 57. But we do not consider it necessary to discuss these cases, as, in our opinion, the law is well settled that the plaintiff must aver and prove that he was ready and willing to perform the essential terms of the contract which he was required to perform. However, it depends upon the facts and circumstances of each case whether the plaintiff has averred and proved this essential requirement of law. In this connection we may refer to Ramesh Chandra v. Chuni Lal, AIR 1971 SC 1238 wherein their Lordships were pleased to observe as follows :--
'Our attention has been invited to a statement in Halsbury's Laws of England, Vol. 34, Third Edn. at page 338 that in the absence of agreement to the contrary it is the purchaser who has to prepare the draft conveyance and submit it to the vendor for approval. No such point was raised at any prior stage and in any case we do not consider that after the cancellation of the agreement by the respondents it was necessary or incumbent on the appellants to send any draft conveyance. The very fact that they promptly filed the suit shows their keenness and readiness in the matter of acquiring theplot by purchase..... Readiness andwillingness cannot be treated as a strait-jacket formula. These have to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned. In our judgment there was nothing to indicate that the appellants at any stage were not ready and willing to perform their part of the contract.'
15. As discussed above, we are clearly of the opinion that the plaintiff had averred and proved that he was always ready and willing to perform the essential terms of the contract which he was required to perform. We may here add that the learned Single Judge after discussion of the relevant evidence has come to a firm finding that the plaintiff was ready and willing to perform his part of the contract. This finding is essentially a finding of fact. No doubt, it is open to us in a special appeal to examine even findings of fact but unless there are glaring circumstances to warrant an interference with a finding of fact arrived at by the learned Single Judge, we would ordinarily be not justified sitting as a court of special appeal under Section 18 of the High Court Ordinance to reappreciate the evidence. But that question, however, does not arise in this case, as, we have ourselves discussed threadbare the evidence produced by the parties and concur in the finding arrived at by the learned Single Judge in this respect.
16. This brings us to the only other point which has been a subject of debate before us viz. whether the learned Single Judge was justified in recording a finding in favour of the defendant that the document Ex, 1 contained an alternative contract on account of which the plaintiff cannot claim enforcement of specific performance. In this connection attention may be drawn to Section 23 of the Act which reads as under:--
'23. Liquidation of damages not a bar to specific performance.
(1) A contract, otherwise proper to be specifically enforced, may be so enforced, though a sum be named in it as the amount to be paid in case of its breach and the party in default is willing to pay the same, if the court, having regard to the terms of the contract and other attending circumstances, is satisfied that the sum was named only for the purpose of securing performance of the contract and not for the purpose of giving to theparty in default an option of paying money in lieu of specific performance.
(2) When enforcing specific performance under this section, the court shall not also decree payment of the sum so named in the contract.'
17. We have, therefore, to see whether the sum named in the contract as the amount to be paid in case of breach ol the contract is only for the purpose ol securing performance of the contract or it gives an option to the party in default of paying money in lieu of specific permormance. In this connection the learned Single Judge has pressed into service two circumstances. He has observed, in the first instance, that the contract provides that besides refunding the amount of Rs. 2000/- paid to the defendant at the time of execution of Ex 1. an equivalent sum would be paid to the plaintiff in case of breach by the defendant by way of compensation. So far as this circumstance is concerned, it is trite that a condition in the agreement to pay a sum by way of compensation cannot be considered as an alternative contract. Reference in this connection may be made to Explanation to Section 10 of the Act, which provides that unless and until the contrary is proved, the court shall presume that the breach of a contract to transfer immoveable property cannot be adequately relieved by compensation in money. It is not refuted even by Mr. Hastimal, learned counsel for the respondents that such a condition by itself cannot be construed as an alternative contract. But, he argues that in case of default by the defendant the defendant would not only pay Rs. 2000/- in addition to the earnest money but would further get back the possession of a part of the land agreed to be handed over to the plaintiff on 13-1-1968. This condition has also been relied upon by the learned single Judge for coming to the conclusion that it was an alternative contract.
18. Now, we have something Interesting about this condition. The original agreement Ex. 1 has been produced by the plaintiff and proved by the scribe D. W. 1 Ramchander and attesting witnesses D. W. 2 and D. W. 3 Charandass and Shriram respectively. Ex. 1 does not contain any clause that the possession of a part of the land which was to be delivered to the plaintiff on 13-1-1968 would be handed over back to the defendant in case of default by the defendant to execute the sale deed. However, sucha condition is contained in Ex. 2,, copy of the agreement contained in the register of P. W. 1 Ramchander -- scribe. P.W. 1 Ramchander states that the defendants was known to him from before but not the plaintiff, and that Ex. 1 was scribed by him at the instance of the defendant and that the defendant had put his signatures on it in his presence and had admitted the contents of the same. Then, he states that there is a copy of Ex. 1 contained in his register. It may be noted that he is not a petition-writer maintaining a regular register of the petitions scribed by him. All that he says is that Ex. 2 is not a copy of Ex. 1. He does not say that Ex. 2 was prepared from or compared with the original Ex. 1. A document is required to be proved by primary evidence and only under certain circumstances when primary evidence is not available, then the contents of the document may be proved by secondary evidence. In order that an uncertified copy of the document may be admitted in evidence, it is necessary that the copy must be prepared from or compared with the original. But in the present case Ramchander P. W. 1 nowhere states that he prepared Ex. 2 from Ex. 1 or compared it with Ex. 1. In this view of the matter, the primary evidence having been let in, secondary evidence of the same, according to us, was inadmissible in evidence more particularly when it does not satisfy the requirements of being a copy from or compared with the original. Mr. Hastimal, however, strongly urged that it is a document produced by the plaintiff's witness at the instance of the plaintiff, and, therefore, the plaintiff is bound by the same. We regret, we cannot accept this contention. When the primary evidence is on the record, no credence whatever can be given to Ex. 2 even though it has been produced by the plaintiff's witness. We are, therefore, of opinion that the learned Single Judge was not justified in pressing into service the contents of Ex. 2 which did not exist in the primary document Ex. 1. Apart from that, in our opinion nothing turns upon the condition that the pssession of the land would be handed over back to the defendant in case of breach of contract by the defendant. If the transaction of sale was not put through then, by no stretch of imagination, the plaintiff could have retained any portion of the land. The whole question is whether the defendant had the option to perform the main contract or to abandon or repudiateit and perform an alternative contract. In this connection we cannot do better than refer to certain relevant observations from M.L. Devender Singh v. Syed Khaja AIR 1973 SC 2457. The following passage from Sir Edward Fry's 'Treatise on the Specific Performance of Contracts' (Sixth Edn. at p. 65) was relied upon by their Lordships and we may conveniently reproduce the same here for readv reference:
'From what has been said it will be gathered that contracts of the kind now under discussion are divisible into three classes:
(i) Where the sum mentioned is strictly a penalty -- a sum named by way of securing the performance of the contract, as the penalty is a bond:
(ii) Where the sum named is to be paid as liquidated damages for a breach of the contract:
(ii) Where the sum named is an amount the payment of which may be substituted for the performance of the act at the election of the person by whom the money is to be paid or the act done.
Where the stipulated payment comes under either of the two first mentioned heads, the Court will enforce the contract, if in other respects it can and ought to be enforced, just in the same way as a contract not to do a particular act, with a penalty added to secure its performance or a sum named as liquidated damages, may be specifically on-forced by means of an injunction against breaking it. On the other hand, where the contract comes under the third head, it is satisfied by the payment of the money, and there is no ground for the Court to compel the specific performance of the other alternative of the contract.'
19. As observed above, it is only under the third head that there is no ground for the court to compel the specific performance, that is, where the sum named is an amount the payment of which may be substituted for the performance of the act at the election of the person by whom the money is to be paid or the act done. (The underlining is ours). The fact that the parties themselves have provided a sum to be paid by the party breaking the contract does not by itself, remove the strong presumption contemplated by the use of the words 'unless and until the contrary is proved'. As observed by their Lordships in para 9 of the judgment, so also here, there is nomention anywhere in the contract that a party to it will have the option to either fulfil the contract to buy or sell or to pay the liquidated damages or penalty stipulated for a breach, as an alternative to the performance of the contract to buy or to sell. The Supreme Court further observed in M.L. Devender Singh's case (supra) that the effect of the presumption is that the party coming to Court for specific performance of a contract for sale of immoveable property need not prove anything until the other side has removed the presumption. In such cases equity helps honest plaintiff against the defendant who breaks solemnly given undertakings.
20. Thus having regard to the terms of the contract Ex. 1 and other attending circumstances we are satisfied that the sum was named in the contract as the amount to be paid in case of its breach only for the purpose of securing performance of the contract and not for the purpose of giving to the party in default an option of paying money in lieu of specific performance. In this view of the matter we have no alternative but to set aside the finding of the learned Single Judge on the question of alternative obligation.
21. Lastly, Mr. Hastimal submitted that his clients purchased the property during the pendency of this appeal in ignorance of the fact that the matter was sub judice in appeal. He has also submitted that his clients have paid Rupees 60,000/- for this property. He submits that specific performance is an equitable relief which is in the discretion of the court, and it would be proper exercise of jurisdiction if specific performance is refused in the present case. In this connection he also invited our attention to Section 20 of the Act, which provides that jurisdiction to decree specific performance is discretionary and the court is not bound to grant such relief merely because it is lawful to do so. The discretion of the Court, it may be noted, is to be exercised on sound reasonable principles. In the present case, the plaintiff has not been shown to be guilty of any fraud on his part. Besides that, the property has been purchased by the respondents Nos. 2 to 4 during the pendency of this appeal and consequently the transfer in their favour is hit by the doctrine of lis pendens. The mere fact that the respondents Nos. 2 to 4 have parted with a big sum for purchasing the land is noground for refusing the relief of specific performance to which the plaintiff is legally and justly entitled. At this stage we may also point out that the plaintiff had deposited the balance of the sale price, that is, Rs. 10960/- within one month from the date of trial court's decree as directed in the judgment of the trial court. Thus there are no equities in favour of the respondents Nos. 2 to 4.1 The only remedy left to them is to re-, cover the money paid by them from tha defendant.
22. Accordingly, we allow this appeal, set aside the judgment and decree by the learned Single Judge dated 16-2-1972 and restore those of the trial court dated 27-2-1969. and decree the plaintiff's suit for specific performance in the terms contained in the judgment and decree of the trial court. The respondent No. 1 will pay the costs of the plaintiff-appellant throughout.
23. Mr. Hastimal, learned counsel for the respondents Nos. 2 to 4 prays for certifying the case for appeal to the Supreme Court. We are, however, of opinion that no substantial question of law of general importance which needs to be decided by the Supreme Court is involved in the Case. The prayer is refused.