22.04.2025 1. 2. 3. 4. 5. 6. Ramesh Kumar Jain, S/o Late Hiralal v. Ashish S/o Mohan Lal Sharma, Aged About 40 Years, R/o Gaya Nagar , Near
Case Details
1 2025:CGHC:18100-D NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 89 of 2020 Judgment Reserved on : 05.03.2025 Judgment Delivered on : 22.04.2025 1. 2. 3. 4. 5. 6. Ramesh Kumar Jain, S/o Late Hiralal Jain, Aged About 58 Years, R/o Navkar Parisar, Near Pulgaon Naka, Durg, Station, Tehsil And District Durg Chhattisgarh….(Plaintiff), ... Appellant versus Ashish S/o Mohan Lal Sharma, Aged About 40 Years, R/o Gaya Nagar , Near Rajput Kirana Stores , Station Durg, Tehsil And District Durg Chhattisgarh. Abhishek, S/o Mohan Lal Sharma (Deleted as Per Hon'ble Court’s Order Dated 09-03-2022 And 05-04-2022) Savitri, D/o Mohan Lal Sharma, Aged About 55 Years, R/o Gaya Nagar, Near Rajput Kirana Stores, Station Durg, Tehsil And District Durg Chhattisgarh. Karuna, D/o Mohan Lal Sharma, Aged About 43 Years, R/o Gaya Nagar, Near Rajput Kirana Stores, Station Durg, Tehsil And District Durg Chhattisgarh. Smt. Gitabai, W/o Mohan Lal Sharma, Aged About 75 Years, R/o Gaya Nagar, Near Rajput Kirana Stores, Station Durg, Tehsil And District Durg Chhattisgarh. Bholanath, S/o Loknath Sharma, Aged About 55 Years, R/o Brahmin Para, Station Durg, Tehsil And District Durg Chhattisgarh. 7. Champa Bai, W/o Ramsnehi Sharma, Aged About 60 Years, 2 8. 9. Through Power Of Attorney Holder Bholanath, S/o Loknath Sharma, Aged About 55 Years, R/o Brahmin Para, Station Durg, Tehsil And District Durg Chhattisgarh. Kashinath, S/o Loknath Sharma, Aged About 51 Years, R/o Brahmin Para, Station Durg, Tehsil And District Durg Chhattisgarh. Vardhaman Builders And Developers, Station Road Durg, Through Its Partner Uttam Chand Surana, Aged About 45 Years , R/o Navkar Katpis Farishta Complex, Station Road Durg, Tehsil And Police Station Durg., District : Durg, Chhattisgarh 10. State of Chhattisgarh Through Collector, Collectorate, Durg , Tehsil And District Durg, Chhattisgarh ... Respondents For Appellant For Res. No.9 For Res. No.10. : : : Mr. Manoj Paranjape, Advocate with Mr. Sandeep Patel, Advocate. Mr. B.P. Sharma, Advocate with Mr. M.L. Sakat, Advocate. Ms. Nand Kumari Kashyap, P.L. Hon'ble Smt Justice Rajani Dubey & Hon’ble Shri Justice Sachin Singh Rajput C A V Judgment Per Rajani Dubey, J 1. The Plaintiff/appellant herein has preferred this first appeal being aggrieved by the judgment and decree dated 09.08.2019 passed by Vith Additional District Judge, Durg, District Durg (C.G.), in Civil Suit No.19-A/2014, whereby the
Facts
suit filed by the plaintiff/appellant for specific performance of oral contract dated 05.12.2013, possession and for declaration of sale deed dated 03.02.2014 executed by defendant Nos. 1 to 8/respondent Nos. 1 to 8 herein in 3 favour of defendant No.9/respondent No.9 herein null and void, was dismissed. The parties to this appeal shall be referred herein as per their description before the learned trial Court. 2. Brief facts of the case, as per the plaint averments, plaintiff Ramesh Kumar Jain had entered into an oral agreement to purchase the lands of joint ownership of defendant Nos. 1 to 8 situated in village Kasaridih, P.H.No.-18/25, Tehsil & District - Durg, Kha.No.-293/1, 346/1, area 0.154, 0.162 hectare, total area 0.316 hectare, for Rs. 29,00,000/- (Rs. Twenty Nine Lakh) and the suit property bearing Kha.No.- 264, area 0.146 hectare, whose four side boundaries are Kha.No.-269 in the north, 270 in the south, 258/3 and 258/5 in the east and the adjoining land of the plaintiff, and Kha.No. 265 on west for Rs. 45,00,000/- (Rs. Forty Five Lakh) in the presence of plaintiff witness No.-01-Ramdin Yadav and No. 03 - Pramod Kumar Patwa, in compliance of which, defendant Nos. 1 to 8 executed a sale deed (Ex.P-1) of Khas No. 293/1, 346/1 on 24.01.2014 in favour of plaintiff and handed over its possession to him and partially performed the contract dated 05.12.2013. It was also pleaded in the plaint that On the assurance given by defendants No. 1 to 8 that they would obtain B-1 from the Patwari and execute the sale deed on 01.02.2014, the plaintiff in pursuant of the same purchased stamp paper 4 Ex.P.-20 and got draft of sale deed Ex.P.-21 prepared for executing the sale deed of the disputed land, and informed defendant No.8-Kashinath Sharma to come to the Registration Office and receive the consideration amount of Rs. 45,00,000/- and execute the sale deed, upon which defendant No.6-Bholanathn & defendant No.08-Kashinath Sharma came to Registration Office, Durg at about 12:00 pm, and told the plaintiff that they would come with remaining defendants for executing sale deed with Khasra B-1, map and rin pustika and did not return. It was also pleaded that the plaintiff waited for the defendants till 5:00 p.m in the registrar office, but when the defendants did not come, he returned with his witnesses. On 02.02.2014, the plaintiff went out for his urgent work. On 05.02.2014, he returned and sent a Notice (Ex.P.-05) through his advocate to the defendants No. 1 to 8 for specific performance of the contract of the suit property and published the public notice (ExP-6) of the oral contract dated 05.12.2013 on 09.02.2014 in Patrika Newspaper (Ex.P.-07) and Navbharat Newspaper (Ex.P.-08). 3. The defendants replied to the notice through their advocate denying that there was any contract of sale of the suit property with the plaintiff, and stating that the sale deed of the suit property had been done with defendant No.9 on 13.01.2014 and in compliance thereof, defendant Nos. 1 to 5 8 executed a registered sale deed of the suit property on 03.02.2014 in favour of defendant No.9 and handed over possession thereof, upon which the suit was filed by the plaintiff against the defendants for specific performance of the contract and to declaration of the sale deed as null and void. 4. In written statement, defendants No. 1 to 8 stated that they did not make any oral contract to sell the suit property Kh. No. 264, area 0.146 hectare situated in village Kasaridih, P.H.No.-18/25, Tehsil and District Durg with plaintiff on 05.12.2013 for consideration of Rs. 45,00,000/-, as such, the question of their appearance at the Registrar office on 01.02.2014 for executing the sale deed of the suit property does not arise, and only oral agreement to sale of Kha.No.- 293/1 and Kha.No.345/1 was done on 05.12.2013 and on 13.01.2013, deal for sale of suit property of Khasra No.264, area 0.164 hectare was made with defendant No.9, in compliance of which, sale deed of suit property was done on 03.02.2014 and handed over the possession to defendant No.9. It was averred in the written statement that due to business competition, there is enmity between the plaintiff and defendant No.9, the plaintiff has filed a false and fabricated suit against defendant Nos. 1 to 8 with an intention to harass them and prayed that the suit filed by the plaintiff may be dismissed. 5. In written statement, the defendant No.9 has also submitted 6 that the plaintiff's suit may be dismissed with cost stating that the defendant Nos. 1 to 8 did not enter into an agreement to sell of suit property bearing Kha.No.-264, measuring 0.136 hectares to the plaintiff on 05.12.2013, whereas on 13.01.2012, the defendants entered into a sale agreement with themselves for the suit land and in compliance of the said agreement, on 03.02.2014, executed the sale deed in his favour and possession of the suit land was given stating that the plaintiff was not the first purchaser of the suit land and denied that the plaintiff was entitled to enforce the defendant's oral contract dated 05.12.2013 of the suit land. It has been also averred that a multi-storey building has been constructed on the suit land at present and thus the suit of the plaintiff is liable to be dismissed with cost. 6. The learned trial Court, after appreciating the oral and documentary evidence, dismissed the suit of the plaintiff holding that the plaintiff has failed to prove his case against defendants. Hence, this first appeal filed by the plaintiff/appellant. 7. Learned counsel for the appellant/defendant submits that the impugned judgment and decree is illegal, erroneous and contrary to law. The learned trial Court while passing the impugned judgment and decree did not consider the oral 7 and documentary evidence available on record in its true prospective, which has resulted into erroneous findings. Learned counsel further submits that the learned Trial Court did not consider that the plaintiff has adduced the evidence to establish the fact that the defendant Nos. 1 to 8 entered into an oral agreement to sale of the suit land. The learned Trial Court also did not consider that on 24.01.2014 the plaintiff came to the office of Registrar, Durg, along with the amount of sale consideration to the tune of Rs. 74,00,000/- but the defendant No. 8 had requested that he would execute the sale deed on 01.02.2014, as such, the sale deed could not be executed on 24.01.2014. The learned Trial Court has failed to appreciate the evidence of DW-6 and DW-8 & also failed to appreciate the averments made in the plaint with regard to the preparation and with regard to the availability of the fund to execute the sale deed. Learned counsel also submits that the learned Trial Court did not consider that it is the defendants Nos. 1 to 8 who were not willing and ready to perform their part of the contract and no evidence was adduced by the them to show their readiness and willingness or the efforts taken by them for due performance of the contract. The learned Trial Court ought to have appreciated that the plaintiff has even got drafted the proforma of the sale deed and had also purchased the stamp papers. The learned Trial Court also 8 did not consider that on 05.02.2014, the notice was also sent to the defendant Nos. 1 to 8, and in reply to the said notice, the defendant Nos. 1 to 8 never denied the oral agreement. The plaintiff has taken all the steps for due performance of contract and has successfully proved his readiness and willingness to perform his part of the oral agreement in respect of the suit land. 8.
Legal Reasoning
failed to prove his pleading and it is well settled principle of law that the plaintiff has to prove his case on his own evidence and document & he cannot take the advantage of lapses on the part of the defendant. Learned counsel further submits that the learned trial Court not framed issue regarding readiness and willingness, as such, in view of the 12 guidelines of Hon’ble Apex Court, the matter is liable to be remanded to the trial Court with a direction to frame specific issue regarding readiness and willingness on the part of the plaintiff to perform his part of contract and pass the judgment accordingly. In support of his submission, learned counsel placed reliance on the decisions of Hon’ble Apex Court in the matter of K. Nanjappa (Dead) by Legal Representatives V. R.A. Hameed alias Ameersab (Dead) by legal Representatives and Another reported in (2016) 1 SCC 762, Shenbagam and Others Vs. K.K. Rathinavel reported in 2022 SCC OnLine SC 71, decision of High Court of Delhi at New Delhi reported in 2025 SCC OnLine Del 998, decision of this High Court in the matter of Manish Bajpai Vs. Alkesh Lakde [F.A. No.155/2019, judgment date 03.09.2024] 12. Learned counsel for the State/respondent No.10 submits that the State is a formal party in the suit. 13. We have heard learned counsel for the parties and perused the material available on record. 14. It is apparent from the record of the learned trial Court that the plaintiff filed a suit for specific performance of contract against defendants. The learned trial Court, on the basis of pleadings of the parties, framed six issues, which are as under :- 13 dz- 1- 2- 3- 4- 5- 6- okn&iz’u D;k oknh] izfroknh dz-&01 ls 08 ls oknHkwfe xzke & dlkjhMhg] iVokjh gYdk uacj & 18@25 x`g fuekZ.k eaMy] nqxZ esa & 01 Cykd o rglhy o ftyk & nqXkZ esa fLFkr [kljk uacj&264 dk dqy jdck 0-146 gsDVs;j dks vius i{k esa iathd`r fodz; i= fu”ikfnr djkus dk vf/kdkjh gS \ D;k oknh] fodz; i= fnukad 03@02@2014 dks ‘kwU; ?kksf”kr djkus dk vf/kdkjh gS \ D;k oknh] izfroknh dza- &09 ds fo#) LFkk;h fu”ks/kkKk dh lgk;rk izkIr djus dk vf/kdkjh gS \ D;k oknh us nkos dk mfpr #i ls ewY;kadu dj mfpr #i ls U;k;’kqYd vnk fd;k gS \ D;k oknh dk nkok izpyu ;ksX; gS \ lgk;rk ,oa okn O;; \ fu”d”kZ ugha ugha ugha ugha ugha gka 15. The main objection of plaintiff and defendants is that while adjudicating the suit for specific performance of contract, no specific issue with regard to the readiness and willingness on the part of the plaintiff was framed by the learned trial Court. 16. Both the parties have relied upon the decision of this Court in the matter of Manish (supra), wherein this Court observed in paras 16, 17, 18 and 19 as under :- 16. While dealing with the issue of readiness and willingness in performance of contract, Hon’ble Apex Court in the matter of Kamal Kumar (supra) held in para 7 as under :- “7. It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief. The material questions, which are required to be gone into for grant of relief of specific performance, are : 14 7.1 First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property. 7.2 Second, whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract. 7.3 Third, whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract; 7.4 Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff; Lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money, etc. and, if so, on what grounds. 17. Further, in the matter of Shenbagam (supra), it was held in para 27, 28, 29, 33 and 35 as under :- “27. The trial court decreed the suit for specific performance in favour of the respondent. The trial court only framed the following two issues: "1. Whether the plaintiff [is entitled] for the relief of specific performance? 2. To what other reliefs?" 28. No issue on readiness and 15 willingness was framed by the trial court. The trial court analysed the notice issued by the appellants and held that the appellants made no demand from the respondent to discharge the mortgage liability. Thus, the appellants' plea that the respondent-plaintiff had to pay the loan and only thereafter, could the appellants execute the sale deed was rejected. The court also accepted the respondent's argument that the advance amount of Rs. 10,000 was paid to discharge the mortgage. Further, the trial court observed that the documents submitted by the respondent indicate that he had sufficient means to purchase the suit property. The judgment of the trial court was upheld by the first appellate court and, in a second appeal, by the High Court. 29. All the three courts, including the High Court, grossly erred in the manner in which they have adjudicated upon this dispute in a suit for specific performance. In the first instance, the trial court failed to frame an issue on whether the respondent- plaintiff was ready and willing to perform his obligations under the contract and instead assessed whether he is entitled to the relief of specific performance. In doing so, the trial court viewed the legal issue from an incorrect lens. The foundation of a suit for specific performance lies in ascertaining whether the plaintiff has come to the court with clean hands and has, through his conduct, demonstrated that he has always been willing to perform the contract. There is a conspicuous absence in judgment of the trial court of any reference to evidence led by the respondent to indicate his willingness to perform the contract. The trial court merely adverted to "document produced on behalf of the plaintiff and concluded that he had sufficient means to purchase the suit property. Apart from this observation, the judgment fails 16 to analyse the terms of the agreement, the obligations of the parties and the conduct of the respondent or the appellant. 30. XXXX 31. XXXX 32. XXXX 33. We shall now advert to the respondent's conduct throughout the sale transaction. The respondent has failed to provide any documents or communication which would indicate that he called upon the appellants to perform their obligations or discharge the mortgage within the time period stipulated in the contract. Even after the expiry of the six months, the respondent did not reach out to the appellants. It is only in response to the appellants' legal notice that the respondent demanded performance of their obligations. Merely averring that he was waiting with the balance consideration and believed that the appellants would clear the encumbrance is insufficient to prove that the respondent- plaintiff was willing to perform his obligations under the contract. 34. XXXX 35. The 'readiness' of the respondent to perform his obligations refers to whether he was financially capable of paying the balance consideration. Both the trial court and the first appellate court have observed that the respondent was ready to pay the balance consideration as (1) he was paying income tax since 1988 and (ii) his bank passbooks indicate that he had sufficient funds. The payment of income tax by itself does not show that the respondent had sufficient resources to pay for the suit property. Moreover, the bank passbooks submitted in evidence by the respondent were for accounts opened on 11 March 1992 and July 1994, that is, after the expiry of the period written in the contract. The 17 first appellate court despite noting this, has chosen to hold that the respondent was ready and willing to perform the agreement. The respondent however did not lead any evidence to indicate that in the year 1990 he had the money to pay the balance consideration. The first appellate court shifted the burden on the appellants to prove that the respondent-plaintiff was incapable of paying the balance consideration. It is an established principle of law that the plaintiff must prove that he is ready and willing to perform the contract. The burden lies on the plaintiff. The respondent has not led any evidence that he was ready or willing to perform his obligations under the agreement. “ 18. Again in the matter of V.S. Ramakrishnan (supra), it was held in para 8, which reads thus :- “8. Now the findings and the reasoning given by the learned Trial Court refusing to pass a decree for specific performance is concerned it appears that though there was no specific issue framed by the learned Trial Court on readiness and willingness on the part of the plaintiff, the Trial Court has given the findings on the same and has non- suited the plaintiff by observing that the plaintiff was not having sufficient funds to make the full balance consideration on or before 12.01.2006. Such a finding could not have been given by the learned Trial Court without putting the plaintiff to notice and without framing a specific issue on the readiness and willingness on the part of the plaintiff. There must be a specific issue framed on readiness and willingness on the part of the plaintiff in a suit for specific performance and before 18 giving any specific finding, the parties must be put to notice. The object and purpose of framing the issue is so that the parties to the suit can lead the specific evidence on the same. On the aforesaid ground the judgment and order passed by the learned Trial Court dismissing the suit and refusing to pass the decree for specific performance of the agreement to sell confirmed by the High Court deserves to be quashed and set aside and the matter is to be remanded to the learned Trial Court to frame the specific issue with respect to the readiness and willingness on the part of the plaintiff. On remand the parties be permitted to lead the evidence on the readiness and willingness on the part of the plaintiff to perform his part of the contract, more particularly, whether the plaintiff was ready and willing to pay the full consideration and whether the plaintiff was having sufficient funds and/or could have managed the balance sale consideration.” 19. Very recently, Hon’ble Supreme Court in the matter of Pydi Ramana (supra) held in para 14 as under :- 14. There is a distinction between the terms 'readiness' and 'willingness'. 'Readiness' is the capacity of the plaintiff to perform the contract which includes his financial position to pay the sale consideration. 'Willingness' is the conduct of the party. In the instant case, even according to the concurrent findings recorded by the courts below, it would emerge that the plaintiff had been 19 able to successfully prove the sale agreement dated 07.06.1993 Ex.A1 on which date Rs. 2,005/- was paid by the plaintiff to the defendant. The evidence on record tendered by plaintiff came to be accepted by all the courts and judgments of courts below would also indicate that further amount towards sales consideration in a sum of Rs. 17,000/- was paid by plaintiff to defendant on 23.06.1993 and same-was- endorsed by him. As per the recital in the agreements, the defendant was required to get the suit land surveyed and as such the total consideration was agreed to be settled after such survey. On the one hand, the plaintiff contends that defendant never got surveyed the suit land. On the other hand pleadings and evidence of plaintiff is silent on steps taken by the plaintiff as expected of a reasonable person which has not been taken in the instant case namely the plaintiff has not produced any evidence either oral or documentary to establish that there was any demand made by him for the land being surveyed by defendant. No witnesses have been examined on behalf of the plaintiff to establish that at any point of time there has been demand made by the plaintiff with the defendant by calling upon him to get the suit land surveyed as agreed under the agreement of sale Ex.A1. It is for the first time after a period of 3 years from the date of agreement Ex.A.1 namely on 30.05.1996 legal notice (Ex.A3) was got issued or in other words plaintiff was silent for a period of 3 years in enforcing of the agreement of sale. It is for this specific reason the trial court while rejecting the 20 prayer for decree of specific performance has recorded a categorical finding to the following effect: 21. The terms of the agreement xxx the period of one year. The plaintiff got issued a legal notice on 30.05.1996 ΕΧ.Α.3 expressing his readiness to go ahead with the transaction and calling upon the vendors to execute the sale deed. That means nearly for two years after the expiry of one year period. The plaintiff vendee did nothing to act in furtherance of the agreement. Excepting a bald and vague assertion that he was contacting the vendors but they were dodging nothing more is brought on record to satisfy the court that the plaintiff was at all material times interested in finalizing the deal and showing his readiness and willingness to perform the essential terms of the agreement. Though the suit was filed within the period of limitation, it is not sufficient. In assessing the question of readiness and willingness of the party to perform his part of the contract. It is highly essential to take into account the long unexplained silence and inaction on the part of the plaintiff. 22. Plaintiff must perform his part of the contract within reasonable time. There was total inaction on the part of the plaintiff for 2 12 years which was not consistent with the terms of agreement. From 6.6.94 to 30.5.96 i.e., for a period of 23 months, plaintiff sat quiet without taking any steps to perform his part of the contract under the agreement though the 21 agreement specified a period of one year, within which he was expected to urge the defendant- vendor to get measurements of land and fix the sale price and to tender the balance amount and call upon the defendants to execute sale deed and deliver possession of the property. As rightly pointed out by the trial court, the respondent-plaintiff has not produced any satisfactory evidence to prove his readiness and willingness. As regards 'willingness' of the plaintiff to perform his part of the contract, the conduct of the plaintiff warranting the performance has to be looked into. The following conduct of the plaintiff warrants consideration: a. Plaintiff got issued legal notice nearly after two years after the expiry of one year period as prescribed in the agreement. b. Plaintiff has not brought anything on record to prove that he contacted the Defendant after the expiry of one year period and was interested in finalising the deed. c. There was total inaction of the Plaintiff from 06/06/1994 (expiry of one year period) to 30/05/1996 (Date of issuance of legal notice) d. Suit was filed on 09/06/1997 i.e. after a period of more than one year from the date of issuing of legal notice. Sald delay has not been sufficiently explained by the Plaintiff. The continuous readiness and willingness is a condition precedent to grant the relief of specific performance. The trial Court has rightly held that plaintiff has not sufficiently explained and proved 22 that he was always ready and willing to perform his part of the contract. As such the High Court and the First Appellate Court had erred in holding that plaintiff had proved his readiness and willingness. 17. In the light of aforesaid guidelines, it is clear that, the learned trial Court while adjudicating the suit of plaintiff for specific performance of contract, did not frame issue regarding readiness and willingness and appreciated oral and documentary evidence in issue No.1. The learned trial Court recorded its finding that the plaintiff has failed to prove any agreement of sale dated 05.12.2013 between the plaintiff and defendant Nos. 1 to 8, but it is apparent from the statement of both the parties that there was some agreement between the parties and sale deed was also executed for some piece of land and according to the aforesaid guidelines of Hon’ble Apex Court, the object and purpose of framing issue is so that the parties to the suit can lead the specific evidence on the same but the learned trial Court without framing specific issue dismissed the suit of the plaintiff, and the learned trial Court also did not appreciate whether the plaintiff is entitled for any return of earnest/advance money or not. Thus, the issues framed in the suit filed by the plaintiff for specific performance of contract by the learned trial Court, are not in accordance with the guidelines of Hon’ble Apex Court and not in 23 accordance with the opinion of this Court & not according to the facts and circumstances of the present case. 18. In view of the aforesaid discussion and in the light of guidelines of Hon’ble Apex Court in the matter of Kamal Kumar Vs. Premlata Joshi & Ors. reported in (2019) 3 SCC 704, the impugned judgment and decree dated 09.08.2019 are set aside. The matter is remitted back to the trial Court concerned to decide and dispose of the suit in accordance with law on merits after framing a specific issue on the readiness and willingness on the part of the plaintiff to perform his part of contract and allowing the parties to lead evidence on this issue. Needless to mention that the parties may amend their pleadings, if they so desire. 19. Considering the facts and circumstances of the case, in particular the fact that the parties are contesting for the last more than 10 years, the learned trial Court is directed to decide the proceedings expeditiously by recording plaintiff’s evidence within three months and defendants’ evidence in next three months and thereafter dispose of the suit in next two months. 20. Both the parties are directed to appear before the trial Court concerned on 17.06.2025. 21. This Court has not expressed anything on merit and the trial Court shall decide the suit in accordance with the provision 24 of specific performance of contract without being influenced by the observation made by this Court. 22. The appeal is accordingly allowed to the aforesaid extent.
Arguments
Learned counsel also submits that the findings recorded by the learned trial Court in respect of the payment of the earnest money are perverse and contrary to the evidence on record. It has not considered that the defendant Nos. 1 to 8 failed to prove that the plaintiff has not paid full amount of consideration towards the property sold to him vide sale deed dated 24.01.2014 but for recovery of the said amount neither any suit was filed nor any counter case was instituted, therefore, the defense of the defendant Nos. 1 to 8 does not appears to be probable. Learned counsel also submits that to show the prior contract with defendant No.9 for sale of suit property, no document was filed by the defendants, which itself shows that there was no prior contract with defendant No. 9 for sale of the suit land. The learned Trial Court did not consider the evidence of Ramesh Kumar, Ramadin Yadav and Pramod Kumar Patwa. The learned trial Court ought to have drawn the adverse inference against the defendant Nos. 1 to 7 who did not 9 grace the witness box. Learned counsel also submits that the learned trial Court ought to have appreciated that the oral contract was entered into for sale of the land in respect of the khasra No. 293/1, 246/1 and 264 and out of these 3 properties khasra no. 293/1 and 346/1 have already been sold to the plaintiff on the same date i.e. on 24.01.2014, which itself shows that there was an oral contract between the plaintiff and defendant No. 1 to 7. The learned trail Court has completely ignored stamp paper (Ex.P-20) for due execution of the agreement obtained by the plaintiff to execute the sale deed. The learned trial Court has also failed to appreciate Ex.P-2 to P-8 and Ex.D-1 i.e. the reply to the notice of the plaintiff. Learned counsel also submits that the learned trial Court has also failed to appreciate paragraph No. 15 of the cross examination of defendant No. 8 who himself had admitted the oral contract. 9. Learned counsel further submits that the learned trial Court did not consider the evidence of Kashinath Sharma (DW-8) in particular para 7, 8, 9, 13 and 14. The learned trail Court has also failed to appreciate that the evidence of the defendant does not appears to be probable. The learned trial Court did not consider the evidence adduced by the plaintiff to show his readiness and willingness specially the evidence of Ramadin Yadav. The learned trail Court has failed to consider that despite payment of the earnest 10 money, the property was sold to the defendant No. 9 though the plaintiff was always ready and willing to perform his part of the contract, even the learned trial Court has failed to appreciate that the plaintiff has the right of preemption. It has been also argued by learned counsel that it is well settled that if the party admits the due execution of the contract then the party is bound by the contents of the said contract. No evidence was adduced by the defendant No. 9 to show his bonafide or to show that he is a bonafide purchaser. Neither any notice was published nor any steps were taken to ascertain the existence of the previous contract. Thus, in absence of the evidence, no findings can be recorded in respect of the construction over the property in question. The admission of the defendant No. 8 is the best piece of evidence to grant the decree of specific performance of contract. It has been also submitted that the learned trail Court has failed to appreciate Section 10 of the Contract Act in its correct perspective, which has resulted in erroneous findings. The learned trail Court has failed to appreciate Section 16 and 20 of the Specific Relief Act. So, the impugned judgment and decree are liable to be set aside. 10. In alternative, learned counsel submits that the learned trial Court did not frame any issue with regard to the readiness and willingness, as such, the matter may be remanded to 11 the learned trial Court for framing the specific issue of readiness and willingness and decide the suit of the plaintiff accordingly. In support of his submission, learned counsel placed reliance on the decisions of this Court in the matter of Manish Bajpai Vs. Alkesh Lakde [F.A.No. 155/2019, judgment date 03.09.2024], M/s Gautamchand Tikam Chand Vs. Shri Sampatlal Jain [F.A. No.126/2018, judgment date 02.12.2022], decision of High Court of Allahabad in the matter of Chandra Prakash Mishra and Ors. Vs. State of U.P. and Other reported in 2024 SCC OnLine All 7686 and the decision of High Court of Madhya Pradesh in the matter of Fatechand Vs. The Land Acquisition & Rehabilitation Officer & Ors. reported in I.L.R. [2011] M.P. 2020. 11. On the other hand, learned counsel for respondent No.9 supporting the impugned judgment and decree submits that the learned trial Court minutely appreciated the oral and documentary evidence and has rightly dismissed the suit of the plaintiff. He further submits that the plaintiff has utterly
Decision
There shall be no order as to costs. Sd/- (Rajani Dubey) Judge Sd/- (Sachin Singh Rajput) Judge pekde Digitally signed by VIJAY BHARATRAO PEKDE