R. Bhattacharya, J.
1. The defendants are the appellants before this Court. The plaintiff's suit was dismissed in the Court of the Munsif but in appeal in the Court of the Additional District Judge, 24-Parganas, the plaintiff K.P. Chowdhury was successful and his suit was decreed.
2. The plaintiff started the action against the two defendants, Maniklal Seal, the defendant No. 1 and his son Nemai Chand Seal, the defendant No. 2 for specific performance of an agreement for execution of a lease for 21 years by the defendant No. 2 in respect of the suit premises being a portion on the ground floor in the premises No. 2-B. Palit Street, Calcutta. To be very brief, the plaintiff's case in the plaint is that he was a sub-tenant under one Hemendra Nath Chowdhury, a tenant under the defendant No. 1, Manik and served a notice under Section 16 (2) of the West Bengal Premises Tenancy Act, 1956 upon Manik for being recorded as a direct tenant and that it was agreed by and between the parties that (i) the plaintiff would be a direct tenant under the defendant No. 2, (ii) the defendant No. 2 would execute a lease for 21 years relating to the suit premises with effect from 1st August, 1956 and (iii) the rent would be Rs. 125/-per month subject to enhancement of the same by Rs. 25/- every five years during the term of lease. The plaintiff also alleges in the plaint that in pursuance of the said agreement, he became a tenant from the 1st of August, 1956 on payment of Rs. 125/- per month. A draft of the lease was prepared and approved of by the defendant No. 2 with some additions and alterations and the same was returned to the plaintiff for finalising the same. According to the plaintiff, the deed was written on a stamp paper and sent to the defendant No. 2 for execution but the latter postponed the execution and registration on frivolous pretexts. The plaintiff asserts in his plaint that he has performed his part of the contract by payment of rent at the contractual rent of Rs. 125/- per month. The grievance of the plaintiff is that in spite of repeated requests, the defendant No. 2 failed to execute the lease but on the contrary the defendant No. 2 filed an ejectment suit against him and obtained a decree. The plaintiff filled an appeal but it was dismissed for non-payment of sufficient court-fees. The plaintiff started the present action after giving a letter to the defendant No. 2 on 25th August, 1961 for execution of the lease but the demand was unheeded. Briefly stated the case of the defendants is that there was a talk of lease but the proposal was abandoned as the plaintiff failed to pay Rupees 1000/- as selami. The plaintiff was, however, a monthly tenant at a rental of Rs 125/- according to English Calendar month from August, 1956. The defendant No. 2 filed a suit for eviction against the plaintiff for default in payment of rent and a decree was passed in Title Suit No. 15 of 1960. The plaintiff filed a petition under Sections 7 and 10 of the West Bengal Premises Tenancy Act for refund of excess rent and for fixation of standard rent before the Rent Controller. He also prayed for adjustment against rent paid in excess of Rs. 79/- in Title Suit No. 15 of 1960 in the Court of the 6th Munsif at Alipore. The contract for lease set up by the plaintiff has been denied the plaintiff's suit is described as frivolous meant to defeat the decree passed against him. Besides denying all material allegations of the plaint, the defendants have set up the ground of limitation. It has also been stated that the suit is barred by the principles of waiver, estoppel and acquiescence.
3. The trial court found on evidence that the talk of lease continued till December, 1956. It was also held that the plaintiff was an ordinary monthly tenant in the suit premises when he began possessing the suit property in August, 1956. On the point of limitation it was held that on the evidence of the plaintiff, the repudiation of the contract was clear from December, 1956 or in any view from early part of 1957 or soon thereafter when the defendant in spite of demand through the defendants' durwan, failed, neglected and refused to execute and register the lease. Moreover, the trial court was of the view that as discretion lay with the court to grant or not to grant decree for specific performance of contract, due to the conduct of the plaintiff, no decree could be passed. After the dismissal of the suit, the plaintiff appealed to the District Judge and the said appeal was allowed by an Additional District Judge. The learned Judge below was troubled by some delay in not getting the deed of lease executed. According to him, the date when the ejectment notice was served on the plaintiff before the institution of the suit by the landlord-defendant was the starting point of limitation. The learned Judge says in his judgment that if a suit is filed within the period of limitation as prescribed by Article 113 of old Limitation Act of 1908 as applicable in the present case, the plaintiff shall be entitled to have a decree for specific performance of contract. The suit is held to be within time. The learned Additional District Judge is of the opinion that the plaintiff was not guilty of any laches on his part and that he performed his part of the contract. In his view the prayer for specific performance of contract is not inequitable. In this view of the matter, the appeal was allowed and the plaintiff's suit was decreed.
4. I have heard Mr. Mitter, the learned Advocate General for the appellants and Mr. Lahiri, the learned Advocate appearing on behalf of the respondent. It has been first argued by the learned Advocate General that the learned court below ought to have held that the suit was barred by limitation and that it mis-read Article 113 of the old Limitation Act, Admittedly, the present suit is governed by the old Limitation Act of 1908. The relevant provision is Article 113 which says that for specific performance of contract, the period for limitation is for 3 years from the date fixed for the performance or if no such date is fixed, when the plaintiff has noticed that performance is refused. The learned trial court on the point of limitation held that according to the evidence of the plaintiff, the talk of lease was finalised in December, 1956 and that after approval by the defendant No. 2, the lease was written on a stamp paper which was delivered to the defendant No. 2 for execution and registration. Of course, the learned trial court felt it difficult to accept the story of delivering the written out document on the stamp paper to the defendant No. 2 in the absence of any corroborating evidence. Whatever the fact may be, according to the learned Munsif, if the evidence of the plaintiff is accepted that he made repeated demands through the defendants' durwan for execution and registration of the document and that there was no response from the other side, the reasonable inference would have been that in early part of 1957 or soon thereafter, the plaintiff had notice that the defendant was neglecting and practically refused to execute the lease. In this case the admitted fact is that a notice to quit was duly served by the defendant No. 2 upon the plaintiff terminating the tenancy of the plaintiff on the expiry of the month of October, 1959 and that the ejectment suit was filed by the defendant No. 2 on or about 14th of November, 1959. The respondent's contention before me is that the plaintiff demanded execution and registration of the document through the durwan of the defendant No. 2 without any answer from the other side. According to Mr. Lahiri the plaintiff came to know about the refusal when the ejectment notice was received by the plaintiff in or about September, 1959 if not when the suit was filed in November, 1959. The instant suit being filed on 13-12-1961 within 3 years from the date of receipt of the ejectment notice by the plaintiff, the suit is within time and therefore, the plaintiff is entitled to get relief. In the instant case the plaintiff has stated in paragraph 8 of his plaint that he repeatedly asked the defendant to execute and register a deed of lease but the defendant No. 2 failed on various pretexts and that on the other hand the defendant No. 2 filed a suit for ejectment against him. It has not been stated in the plaint when or in what manner the demands were made by the plaintiff for execution and registration of the deed, In a specific performance of contract, the plaintiff is to prove that he wants to rely upon the contract and that for the performance of the contract, he made a demand for such performance by the defendant. The plaintiff himself gave evidence and his only evidence of demand during examination-in chief is, 'I made repeated demands for execution and registration of the lease to the durwan of the defendant who came to collect the rent.' Nowhere does he say when or at what point of time he made the demand. Moreover, mere demand, for execution and registration of the lease made to the durwan of the defendant cannot in law be a demand from the defendant himself. I do not find any evidence given by the plaintiff which shows that he personally demanded of any of the defendants the execution and registration of the lease in question, although from the reading of paragraph 8 it appears that the case of the plaintiff was that he made personal demands for execution and registration. In any view of the matter and in spite of vague evidence, even if it is assumed that there was a demand for execution and registration of the document to be made by the defendant No. 2 in December, 1956 or even in 1957, the question arises whether the plaintiff came to know about the refusal by the defendant No. 2 to comply with demand for the execution and registration on receipt of the latter's notice to quit served upon the plaintiff in or about September, 1959. Admittedly, according to the plaintiff, there was no fixed date within which the lease in question was to be executed or registered. According to the argument of Mr. Lahiri if the demand is made by the plaintiff for performance of the contract and the defendant does not give any reply but keeps silent for any indefinite period, there would be no refusal by the defendant to execute or register the document and therefore, the plaintiff cannot know that his demand has been refused. I am afraid this proposition is too wide and impracticable to be accepted. According to Article 113 of the old Limitation Act, the limitation for specific performance of contract starts when the plaintiff has notice that performance is refused. The word 'Notice' means intimation, information, cognizance, or observance. 'Notice' implies knowledge and this knowledge comes from direct perception or from inference reasonably arising out of several facts and circumstances. According to the plaintiff, as I have already stated, the written out document was handed over to the defendant No. 2, in or about December, 1956 and if the vague evidence of the plaintiff about the demand made to the durwan for execution of the deed is assumed to be acceptable and when the plaintiff did not get any reply or response from the defendant No. 2 in that respect, what would be the feeling or natural inference in the mind of an ordinary prudent man of the world? In my view, the only inference that a man can have would be that the man asked to do the thing and giving no answer for a long period, say a year or more, was unwilling to do that act or refused to comply with the demand. It is absurd in the present case for the plaintiff not to infer or to take notice to the effect that in spite of his supplying written up document in December, 1956 and in spite of demands made thereafter for execution of the document and in the absence of any response from the side of the defendant for a period of one year and more, the defendant was not willing to execute the deed or that he refused to execute the deed. Whether a party got notice of refusal or not depends upon the substantive evidence to that effect or inference from the surrounding facts and circumstances. 1 think, the learned appellate court below failed to consider the material evidence on record and also the relevant and important facts and circumstances for ascertaining the starting point of limitation based upon the refusal of the execution of the document by the defendant. Article 113 of the old Limitation Act has not been properly applied in the facts and circumstances. The finding of the court below that the plaintiff came to know about the refusal by the defendant to execute the document only on the receipt of the ejectment notice which was received before the filing of the ejectment suit in 1959 is without evidence and unsustainable. The plaintiff nowhere in evidence says when he for the first time had noticed or realised that the defendant No. 2 was not willing to execute and register the lease or refused to do the same. The evidence of the plaintiff about demand made to the durwan of the defendant is not consistent with the case pleaded in paragraph 8 of the plaint which speaks about personal demand made to the defendant. The facts and circumstances may at best suggest that the plaintiff had notice about refusal by the defendant to execute the tease at the end of 1957 about a year after the alleged handing over of the written up document to the defendant in the absence of any response whatsoever from the latter. In the plaint, it has been alleged that the defendants avoided execution on frivolous pleas and ultimately refused, but during evidence it has not been stated that the defendants set up any false pleas or any excuses for not executing the deed. I should hold that the learned Additional District Judge failed to read the material and substantive evidence in the facts and circumstances of this case and to apply the correct principles laid down in Article 113 of the old Limitation Act. He ought to have held that the instant suit was barred by limitation.
5. The next point that has been urged by the learned Advocate General on behalf of the appellant is that the learned Additional District Judge failed to appreciate the correct principles regarding the use of the discretionary power of the Court in the matter of granting decree for specific performance of a contract as mentioned in Section 22 of the Specific Relief Act, 1877. On this question, both the parties have relied upon the decision in Mademsetty Satyanarayana v. Yellojirao, reported in : 2SCR221 . Mr. Lahiri has also in particular relied upon the decision in the case of Dr. Jiwanlal v. Brijmohan Mehra, appearing in : 2SCR230 . Assuming that the suit was not barred by limitation and that the plaintiff got notice about the refusal of the defendant to execute and register the lease in question on receipt of the ejectment notice served upon him before October, 1959, we get certain admitted facts. In November, 1959, the defendant No. 2 filed a suit for eviction against the plaintiff on the allegation that the latter was a monthly tenant-at-will and that he was entitled to get a decree for eviction. The defendant appeared in the suit and pleaded that there was a contract between the parties and according to the contract the plaintiff in that suit was bound to execute a lease for 21 years and that he was occupying the suit premises as a tenant on the basis of the said agreement. Of course, the defendant of that suit pleaded that he was not a defaulter. In that suit, the issues were framed and although there was the counter allegation about the contract to execute the lease for 21 years, no such issue was pressed by the defendant and no issue was struck on that point as would be evident from Ext. A, the certified copy of the judgment passed in that suit. In a suit for eviction against a tenant in a case like this any counter claim by the defendant for specific performance of contract to execute a lease against the plaintiff cannot be maintained. The suit was ultimately decreed on 28-6-1961. The memorandum of appeal was rejected on 30-9-1961 for non-payment of requisite court-fees. In spite of the suit being filed by the defendant, Nemai Seal, the present plaintiff, K.P. Chowdhury did not take any step whatsoever for filing a separate suit for specific performance of contract against Nemai Seal for execution of a lease for 21 years, though he knew that in that suit he would not get any relief in the form of a decree in his favour to get the lease executed.
K.P. Chowdhury did not even take any step to stay further proceedings of the title suit brought by Nemai Seal by starting a separate action for specific performance of contract On the other hand, he allowed the suit to proceed for about two years, Nemai Seal obtained a decree. An attempt was made to prefer an appeal but as K.P. Chowdhury did not pay requisite court-fees, the memorandum of appeal was rejected, He filed an application thereafter under Section 151, Civil P. C. but the attempt was unsuccessful. The petition was rejected. Thereafter, on 13-12-1961 the present suit was filed by the plaintiff on the allegations I have previously noted. The learned trial court on consideration of the facts of this case, came to the finding that the present plaintiff was guilty of laches in not bringing the suit earlier and due to the inordinate delay in filing the suit and finding mala fide motive, the learned Munsif used his discretion and refused to allow any relief in this suit.
6. The learned Additional District Judge is of the view that if the plaintiff is well within time and if the agreement is valid and binding upon the defendant, then the plaintiff is entitled to get the relief for specific performance of contract; no matter whether he has come with the suit early or there was delay. He has stated that there is no exact rule as to when laches will or will not bar a claim. The learned Judge is aware that the delay from the date of decree of the suit to the institution of the present suit has not been explained. According to him, the plaintiff was under the impression that he would get adequate relief in the previous suit which was contested by him, but having failed to obtain the desired relief, he came up with the present suit. The learned Judge, however, did not find any laches on the part of the plaintiff to bring the present action after so long a period from the time when he had received the ejectment notice from his landlord. The learned Additional District Judge says that as the plaintiff performed his part of the contract, it cannot be said that the relief to be granted in this suit is inequitable.
7. The case of Mademsetty Satyanarayana : 2SCR221 , already referred to was decided by the Supreme Court and in that case the discretionary power of the Court as provided in Section 22 of the Specific Relief Act, 1877 was considered. Several cases, both Indian and English, were discussed. Ultimately, the following decision was arrived at;
'While in England mere delay or laches may be a ground for refusing to give a relief of specific performance, in India mere delay without such conduct on the part of the plaintiff as would cause prejudice to the defendant does not empower a Court to refuse such a relief. But as in England so in India, proof of abandonment or waiver of a right is not a pre-condition necessary to disentitle the plaintiff to the said relief, for if abandonment or waiver is established, no question of discretion on the part of the Court would arise. We have used the expression 'waiver' in its legally accepted sense, namely, 'waiver is contractual, and may constitute a cause of action: it is an agreement to release or not to assert a right'; see Dawson's Bank Ltd. v. Nippon Menkwa Kabushiki Kaisha, 62 Ind App 100 at p. 108 = (AIR 1935 PC 79 at p. 82). Jt is not possible or desirable to lay down the circumstances under which a Court can exercise its discretion against the plaintiff. But they must be such that the representation by or the conduct or neglect of the plaintiff is directly responsible in inducing the defendant to change his position to his prejudice or such as to bring about a situation when it would be inequitable to give him such a relief.'
8. The other case of Jiwanlal, : 2SCR230 relied upon by Mr. Lahiri relates to a question of long delay in filing the suit for specific performance of contract. The Supreme Court went on to see whether the delay was such as would disentitle the plaintiff to the relief of specific performance of the contract. In that connexion the Supreme Court referred to a passage from the judgment of the Privy Council in Lindsay Petroleum Co. v. Hurd, (1874 LR 5 PC 221 at p. 239) which is quoted below:
The doctrine of laches in Courts of equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy either because the party has by his conduct done that which might fairly be regarded as an equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases lapse of time and delay are most material.'
Ultimately in the case under consideration, the Supreme Court held that in the facts and circumstances of that case it could not be said that the specific performance of the agreement was likely to cause any prejudice to the defendant on the date of the institution of the suit and accordingly the suit was found not liable to be dismissed on account of delay. Mr. Lahiri has argued that in the written statement the defendants did not plead any case of prejudice. In the long written statement stating all facts elaborately, principles of estoppel, waiver and acquiescence were pleaded. It was also stated that the suit was mala fide and frivolous. It was also stated in paragraph 21 of the written statement that the proposal for a lease had been abandoned by the plaintiff. It was farther stated that the story of lease was created for avoiding fee decree for ejectment passed against him. In paragraph 22 the defendants stated that the grant of the injunction in the suit as prayed for by way of decree was to undo the effect of the decree passed against the plaintiff. We also get the defence that the plaintiff is not entitled to any decree for permanent injunction from executing the decree obtained by the defendant No. 2 as mentioned in paragraph 24 of the written statement. Considering the statements made, there can be no doubt that the defence of prejudice to the interest and right of the defendants created by the decree passed in the previous title suit was set up, the substantial defence was there. Now, in view of the decisions of the Supreme Court already referred to, the Court is entitled to exercise its judicial discretion in the matter of passing a decree for specific performance against the Pendant. This discretion should be used with reference to the facts and circumstances in each case. If there was any delay on the part of the plaintiff to bring an action for specific performance of contract, and if it appears that the delay was unreasonable and that due to such delay, the defendant was put into some advantageous position or has acquired some right which would be frustrated or of which the defendant would be deprived if any decree for specific performance of contract is passed, in that case due to the delay of the plaintiff in filing the suit for his negligence, fault or carelessness or for some mala fide motive, the Court for ends of justice would be justified in refusing the relief in the form of specific performance of contract by using its judicial discretion so as not to disturb the circumstances created by such delay of the plaintiff or to deprive the defendant of the benefit which he has acquired in the meantime due to such delay. In the present case if it is assumed that the plaintiff had the notice that the defendant refused to execute the lease and register the same on the receipt of the ejectment notice by the middle of 1959 we find that in spite of institution of an ejectment suit by the defendant No. 2 against the plaintiff at that time, no action whatsoever was taken by the plaintiff K.P. Chowdhury to file any suit for obtaining a decree for specific performance of the agreement he wants to rely upon. On the other hand he approached the Rent Controller for standardisation of the rent by reducing it. This conduct shows that he approached the Rent Controller as an ordinary monthly tenant giving up his story of occupation of the suit premises on the basis of a lease for 21 years at a rental of Rs. 125/- per month increaseable by Rs. 25/- every five years. He abandoned that case of lease and took up the position of a monthly tenant occupying the suit premises at an exorbitant and unreasonable rate of rent which required to be reduced and that is why he filed the application for standardisation of his rent. By the middle of 1961, the suit was decreed and the memorandum of appeal was rejected thereafter and in December, 1961 his attempt to revive the appeal under Section 151, Civil P. C. failed. Subsequently, the plaintiff filed the instant case for specific performance of contract. From the facts and circumstances ft is very reasonable to hold that till the rejection of the memorandum of appeal, the plaintiff was speculating upon the result of that suit. The plaintiff was watching the result of the suit to see if he could succeed in that suit. When he found that the decree was passed against him and there was no chance to prevent the execution of the decree, the present suit was filed on the allegation of a lease for 21 years. In the meantime the plaintiff had already obtained a decree against the defendant and acquired a valuable right against the defendant, The plaintiff had ample opportunity after the institution of the previous suit by the defendant No. 2 to start an action for specific performance of contract to compel the defendant No. 2 to execute and register the lease. That the plaintiff did not do and the defendant No. 2 got the decree against the plaintiff. In this view of the matter, it is quite evident that due to the negligence, fault and mala fide motive of the plaintiff, he did not contemplate any legal action for the relief he is now claiming. When in the meantime the plaintiff had obtained a right to evict the plaintiff on the finding that he was a tenant-at-will to occupy the suit premises, the trial court in the facts and circumstances rightly exercised judicial discretion in refusing any decree in the present suit. The learned Additional District Judge, however, failed to notice that due to the passing of the decree in the present case, in spite of long delay which is unreasonable in the present case, caused serious prejudice to the defendant. He ought not to have in the facts and circumstances allowed the appeal and decreed the suit. The learned Judge was not quite correct when he said that the plaintiff was entitled to the relief, no matter whether he had come early or late with the suit. It appears that the Supreme Court cases referred to in this judgment were not brought to the notice of the learned Judge. The question of prejudice to the defendant in a case of long delay in a suit for specific performance of contract is relevant and important question to be considered.
9. The last point canvassed by the learned Advocate General in this appeal is that the suit ought to have been dismissed on the ground that in the plaint it was not pleaded that the plaintiff had been always ready and willing to perform his part of his contract and in fact he was fulfilling his duty in terms of the contract. In this connexion my attention has been brought to the case of Ardeshir H. Mama v. Flora Sasoon decided by the Privy Council reported in AIR 1928 PC 208 - (32 Cal WN 953). That was a suit for specific performance of contract and compensation. In that case the provision of the Specific Relief Act, 1877 was being considered. Speaking about the plaintiff bringing an action for specific performance of contract, Lord Blanesburgh on behalf of the Judicial Committee held:
'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.'
Further it has been held:
'Although so far as the Act is concerned, there is no express statement that the averment of readiness and willingness is in an Indian suit for specific performance as necessary as it always was in England (Section 24 (b) is the nearest), it seems invariably to have been recognised, and, on principle their Lordships think rightly, that the Indian and English requirements in this matter are the same.'
The learned Advocate General has submitted that as there is no such averment in the plaint, that the plaintiff had always been ready and willing and was still willing at the time of the institution of the suit to perform his part of the contract, the suit should have been dismissed. Mr. Lahiri in course of his argument has submitted that in evidence the plaintiff stated that he was willing to act his part of the contract and on a day subsequent to the argument of the learned Advocate General, a petition for amendment was filed for adding the averment in the plaint that the plaintiff has performed and has always been and is still ready and willing to perform his part of the contract. During evidence the plaintiff stated that he was always willing to perform the part of his contract and that the defendants backed out. That application for amendment of plaint was considered at the time of argument of the appeal. In the present case although in the evidence the plaintiff said, 'I was always willing to perform the part of my contract. The defendants, however, backed out', he did not say that he had been always ready and willing to perform his part of the duty according to the contract or that he had been performing his part of the contract as far as possible. His evidence was in the past tense and he referred to his past willingness. He did not 'say anywhere that even at the time of hearing, he was willing and ready or had been performing his part of the duty according to the contract. Had there been such statement, there would have been reasons for this Court to allow a prayer for such amendment. This amendment cannot be allowed in the facts and circumstances of this case. According to the plaintiff, the contract was finalised at the end of 1956. According to the plaint, he started occupying the suit premises as a tenant under the proposed lease for 21 years on payment of Rs. 125/- per month. It appears that in the mean time he approached the Rent Controller for standardisation of rent giving a go-bye to the terms of the contract as pleaded in the plaint for 21 years. The term of contract regarding the rate of rent is that the plaintiff is to occupy the suit premises at a rental of Rupees 125/- per month and at an interval of five years, the rate of rent would be enhanced by Rs. 25/-. The plaintiff gave evidence in 1967. By that time the rate of rent would have been Rs. 150/- per month according to the term of contract. I asked Mr. Lahiri whether his client paid rent at an enhanced rate after five years and the answer is 'No'. Even during evidence in 1967 he did not say that in the mean time, he had according to the terms of the contract, paid rent at the rate of Rs. 150/- or at any rate he was willing or ready to pay rent at the rate stipulated in the contract. On the contrary, as I have already stated, he approached the Rent Con-droller for reduction of the rent as an ordinary monthly tenant by standardisation, The conduct of the plaintiff clearly shows, and, there can be no doubt, that he abandoned his initial story of lease for 21 years. However, these facts were not considered by the court below, though the case of abandonment is clearly pleaded in the written statement. This fact was very material for the court to consider. This aspect was not considered. Of course if abandonment is proved, then the question of court's discretion does not arise. The suit should fail on that account alone. Abandonment of the case of contract is no consideration for using discretion by the Court for refusing decree as it is by itself a ground for dismissal of the suit. Mr. Lahiri has argued that the question of pleading pointing out to the absence of the statement of the plaintiff's readiness and willingness to do his part of the contract at the time of filing the suit in the plaint was not raised before the lower court. But, this being a question of law can be urged even in the second appeal. It does not require any fresh evidence either for the plaintiff or the defendants to adduce. The third point also goes in favour of the appellants and in the absence of pleading as indicated above and specially in the absence of proof on the side of the plaintiff that upto the time of hearing and even at the time of hearing, he was continuously willing and ready to perform his part of the contract and that he was in fact complying with the terms of the contract to be performed by him, the suit is liable to be dismissed. The third point urged also succeeds. In view of my findings above, the petition of the plaintiff-respondent for amendment of the plaint is liable to be rejected. Even if that application is allowed, due to the findings on the other two points already decided against the appellants, the amendment will be of no avail to the plaintiff-respondent.
10. In the result, the appeal is allowed with costs against the contesting respondent. The judgment and the decree passed by the lower appellate court arc hereby set aside and the decision and the decree of the trial court shall stand. The application for amendment filed by the plaintiff is rejected. The appellant shall be entitled to costs in this appeal and in the appeal below.
11. The verbal prayer of Mr. Lahiri, the learned Advocate for the respondent for leave to appeal under Clause 15 of the Letters Patent is refused.