Judgment ( 1. ) THIS appeal is directed by the appellants/defendants being aggrieved by the judgment and decree dated 8-8-1996 passed by llth additional District Judge, Jabalpur in C. O. S. No. 414-A/94 decreeing the suit of the respondent No. 1 for specific performance of the contract. ( 2. ) THE facts giving rise to this appeal in short are that the respondent No. 1 filed a suit for specific performance against the appellants and respondent No. 2 contending that the appellant No. 1 for himself and on behalf of appellant No. 2 as her attorney entered in an agreement in his favour on 25-10-1986 whereby they agreed to sale their house No. 921 situated at 19th row Cantt, Jabalpur in consideration of Rs. 25,500/- and also received Rs. 5,000/- as part of consideration. As per terms on payment of the remaining sum by the respondent no. 1 on or before 22-1-1987 the appellants had to execute the registered sale deed. As per further averments the appellant No. 1 received Rs. 5,000/- out of remaining consideration on 19-3-1987 subsequent to the aforesaid date agreed for performance of the contract and extended the period up to April, 1988. Such house was in possession of respondent No. 1 as tenant since 1908 from the time of his forefathers. The endorsement for receiving the sum of Rs. 5,000/- on 19-3-1987 was also made by appellant No. 1 with his own signature. The respondent no. 1 with remaining sum went to appellant No. 1 in April, 1988 and requested him to execute the sale deed, on which instead to receive the payment and execute the sale deed appellant assured him saying that he will execute the same after some days along with some other sale deeds. Accordingly, the respondent no. 1 remained ready and willing to perform his part of the contract but the appellants did not perform their part and contrary to it without any intimation to the respondent No. 1 sold such house to respondent No. 2 and executed registered sale deed on 2-5-1988. The respondent No. 2 purchased the same having knowledge of said earlier transaction of respondent No. 1. The respondent No. 2 purchased the same having knowledge of said earlier transaction of respondent No. 1. Subsequent to it respondent No. 1 gave a notice dated 21-10-1989 to the appellant No. 1 calling him to perform their part of contract by executing the sale deed after taking remaining consideration and shown his readiness and willingness to perform his part of contract. It is also pleaded that respondent No. 1 being tenant in such house had a right of pre-emption to purchase the same. The sale deed executed by the appellants in favour of the respondent No. 2 is void. With these pleadings the prayer for specific performance is made. ( 3. ) IN common written statement of the appellants the execution of the aforesaid agreement and receiving the part consideration of Rs. 5,000/- on such date and Rs. 5,000/- on 19-3-1987 are accepted but it is denied that the agreed time to perform the contract was extended. They remained ready and willing to execute he sale deed on payment of remaining sum by the respondent No. 1 within the itipulated period. As per terms of the agreement the respondent No. 1 was also gound to pay the rent of accommodation. The respondent No. 1 in order to perform his part did not turn up with the remaining sum within the aforesaid period then the same was sold to respondent No. 2 by registered sale deed dated 2-5-1988. As the respondent No. 1 was also the tenant of appellants in some other premises, which had already, sold to some other person. As per further averments the appellants repeatedly asked the respondent No. 1 to get executed the sale deed by performing his part of contract but he failed in it. Accordingly they did not commit any breach on their part. With these pleadings the prayer for dismissal of the suit is made. ( 4. ) THE respondent No. 2 being defendant No. 3 in the trial Court remained ex parte. ( 5. ) IN view of the pleadings of the parties after framing the issues evidence was recorded. On appreciation of the same the suit of the respondent No. 1 was decreed for specific performance against the appellants and respondent No. 2. On which the defendant Nos. 1 and 2 the vendors have come to this Court with this appeal. ( 6. ) SMT. On appreciation of the same the suit of the respondent No. 1 was decreed for specific performance against the appellants and respondent No. 2. On which the defendant Nos. 1 and 2 the vendors have come to this Court with this appeal. ( 6. ) SMT. Amrit Ruprah, learned counsel for the appellants assailed the impugned judgment and decree saying that the time fixed in the agreement was essence of the contract and the same was never extended at any point of time by any of the appellants and it is undisputed fact on record that remaining consideration was not paid by the respondent No. 1 within the stipulated period upto 22-1-1987 in such premises the respondent No. 1 failed to perform his part of contract and from such date the suit was filed barred by time, So, firstly suit was liable to be dismissed on this count and secondly in available circumstance it could not be decreed for specific performance. She accepted that subsequent to the date fixed for execution of the sale deed the appellants accepted the payment of rs. 5,000/- on 19-3-1987 but the same was received on account of rent and not as part of consideration. In alternative she said that even on assuming that such sum was received as part consideration and the period was extended upto April, 1988 as pleaded by the respondent No. 1 even then in the available circumstance the respondent No. 1 did not perform his part of the contract within aforesaid extended period. She further argued that even after executing the sale deed by the appellants flevour of the respondent No. 2 on 2-5-1988 the respondent No. 1 did not take any step immediately showing his readiness and willingness to perform his part of contract and after more than one year and five months he gave a notice dated 21-10-1989 to appellant No. 1 calling them to execute the sale deed in his favour after receiving the remaining sum. The same was replied stating that respondent no. 1 failed to perform his part of the contract even after extending the period, in view of such conduct of the respondent No. 1 the decree of specific performance could not be passed against the appellants. But without considering all such aspects under wrong premises the suit has been decreed by the trial Court. Such decree is not sustainable. 1 failed to perform his part of the contract even after extending the period, in view of such conduct of the respondent No. 1 the decree of specific performance could not be passed against the appellants. But without considering all such aspects under wrong premises the suit has been decreed by the trial Court. Such decree is not sustainable. With these submissions she prayed for setting aside the impugned decree and dismissal of the suit by allowing this appeal. ( 7. ) IN contra Shri Mukhtar Ahmad, learned counsel for respondent No. 1 by justifying the findings of the trial Court, said that in the matter of transaction of immovable property the time fixed between the parties for performing the contract could not be treated as essence of the contract unless the specific circumstance in this regard is available on record. The same is not proved by the appellants. He further said that in the present case the time was not the essence of the contract. In any case by receiving the part payment on 19-3-1987 subsequent to the stipulated period appellants themselves waived such term of the contract and the same did not remain the essence of it. There is sufficient evidence that on receiving such part payment the time for performance was extended by the appellants. Although as per contention of the respondent the time was extended up to April, 1988 but in view of endorsement at the backside of the agreement the same was extended without mentioning any period. In such premises the contract was extended for the period prescribed under the law. In any case before transferring the property to respondent no. 2 or any other person the appellants were bound to inform the respondent No. 1 regarding cancellation of his agreement. Admittedly no such intimation was given to respondent No. 1. According to him the suit was filed within the limitation from the date of the execution of the sale deed by the appellants in favour of the respondent No. 2 under violation of the alleged contract. He also argued that the endorsement regarding acceptance of part payment of Rs. 5,000/- on 19-3-1987 by the appellant No. 1 with his signature is sufficient circumstance to draw inference that by virtue of section 18 of the Limitation Act the time was extended to perform the contract and fresh limitation was started. He also argued that the endorsement regarding acceptance of part payment of Rs. 5,000/- on 19-3-1987 by the appellant No. 1 with his signature is sufficient circumstance to draw inference that by virtue of section 18 of the Limitation Act the time was extended to perform the contract and fresh limitation was started. Therefore, it could not be inferred that respondent No. 1 did not perform his part within the stipulated time. Besides this he said that in the extended period as pleaded in plaint, on 25th April, 1988 and 30th April, 1988 respondent No. 1 approached to the appellant No. 1 with remaining sum and requested him to receive the remaining sum and to executethe sale deed. The same has been proved by the reliable evidence. According to him the findings of the trial Court are based on proper appreciation of evidence and also is in conformity of law. The same do not require any interference at this stage. With these submissions he prayed for dismissal of this appeal. ( 8. ) HAVING heard the learned counsel I have carefully examined the record and also perused the impugned judgment. The following questions require consideration in this appeal. (a) Whether the time was essence of the contract and what is the effect of receiving the part payment by the appellants after stipulated period mentioned in the agreement. (b) Whether respondent No. I/plaintiff was ready and willing to perform his part of the contract within stipulated period or/and within the extended period. (c) Whether the sale deed executed by the appellant in favour of the respondent No. 2 on 2-5-1988 is ab initio void or he is also bound to perform the alleged contract in favour of the respondent No. 1. ( 9. ) COMING to the question whether the time was the essence of the contract is concerned, as per agreement dated 25-10-1986 (Ex. P. l) the appellants agreed to sale the disputed house to the respondent No. 1 in consideration of Rs. 25,500/- out of which Rs. 5,000/- was taken on the date of the agreement and as per further terms, on payment of remaining sum by the respondent on or before 22-1-1987 the sale deed was to be executed by the appellants in favour of respondent No. 1. It is undisputed fact on record that out of remaining sum nothing was paid on or before such stipulated date. It is undisputed fact on record that out of remaining sum nothing was paid on or before such stipulated date. But subsequent to such date the appellant No. 1 who was also the power of attorney holder of appellant No. 2 received the sum of Rs. 5,000/- by endorsing the same with his signature at the back side, of the agreement on 19-3-1987. Such admission is sufficient circumstance to draw an inference that such payment was received in connection with transaction mentioned in the agreement and by virtue of section 18 of the limitation Act, it is not only the acknowledgment of the payment but also the extention of fresh limitation to perform the contract. It is noted that such endorsement was made in writing without fixing any date or period. Therefore in any case it can be inferred that by receiving such payment the appellants waived the right to say that the time was the essence of the contract. Although learned counsel for the appellant have cited, various decisions in support of her contention. The same are taken into consideration one by one. ( 10. ) IN the matter of Chandrani (Smt.) (Dead) by LRs. vs. Kamal Rani (Smt.) (Dead) by LRs. , reported in (1993) 1 SCC 519 ten days time stipulated in the agreement was held to be essence of the contract in certain circumstances. In cited case subsequent to the stipulated time the payment of remaining sum was not received by the vendor and such essential terms of limitation was not waived but here by accepting the part payment subsequent to the stipulated date the appellants waived their rights. Hence, such citation is not helping to the appellant. ( 11. ) IN the matter of K. S. Vidhyanadam and others vs. Vairavan, reported in 1997 (2) MPLJ (SC) 84 = (1997) 3 SCC 1 the period of six months was agreed between the parties for performance of the contract and such period was extended. The alleged agreement was executed on receiving some small amount out of settled consideration and suit was filed after two and half years and the defence of the vendor was the enhancement of the prices of the property. Such peculiar facts are not available in the case at hand either in the pleadings or in the evidence. Hence, it being distinguishable on facts is not helping to the appellants. ( 12. Such peculiar facts are not available in the case at hand either in the pleadings or in the evidence. Hence, it being distinguishable on facts is not helping to the appellants. ( 12. ) ON the other hand the following decisions of the Apex Court answered that the time is not always the essence of the contract in the sale of immovable property : (A) In the matter of Gomathinayagam Filial and others vs. Palaniswami nadar, reported in AIR 1967 SC 868 it was held as under : 4. . . . . . . . . It is not merely because of specification of time at or before which the thing to be done under the contract is promised to be done and default in compliance therewith, that the other party may avoid the contract. Such an option arises only if it is intended by the parties that time is of the essence of the contract. Intention to make time of the essence, if expressed in writing, must be in language which is unmistakable : it may also be inferred from the nature of the property agreed to be sold, conduct of the parties and the surrounding circumstances at or before the contract. Specific performance of a contract will ordinarily be granted, notwithstanding default in carrying out the contract within the specified period, if having regard to the express stipulations of the parties, nature of the property and the surrounding circumstances, it is not inequitable to grant the relief. If the contract relates to sale of immovable property, it would normally be presumed that time was not the essence of the contract. Mere incorporation in the written agreement of a clause imposing penalty in case of default does not by itself evidence an intention to make time of the essence. 5. . . . . . Fixation of the period within which the contract is to be performed does not make the stipulation as to time of the essence of the contract. It is true that appellants 1 and 2 were badly in need of money, but they had secured Rs. 3006 from the respondent and had presumably tide over their difficulties at least temporarily. There is no evidence that when the respondent did not advance the full consideration they made other arrangements, for securing funds for their immediate needs. It is true that appellants 1 and 2 were badly in need of money, but they had secured Rs. 3006 from the respondent and had presumably tide over their difficulties at least temporarily. There is no evidence that when the respondent did not advance the full consideration they made other arrangements, for securing funds for their immediate needs. Intention to make time of the essence of the contract may be evidenced by either express stipulations or by circumstances which are sufficiently strong to displace the ordinary presumption that in a contract of sale of land stipulations as to time are not of the essence. In the present case there is no express situation, and the circumstances are not such as to indicate that it was the intention of the parties that time was intended to be of the essence of the contract. It is true that even if time was not originally of the essence, the appellants could by notice served upon the respondent call upon him to take the conveyance within the time fixed and intimate that in default of compliance with the requisition the contract will be treated as cancelled. (B) In the matter of M/s Arosan Enterprises Ltd. vs. Union of India and another, reported in AIR 1999 SC 3804 , it was held as under : "21. . . . . . . . . . . . . . . . The contract itself provides reciprocal obligations and in the event of non-fulfilment of some such obligations and which have a direct bearing onto them - strict adherence of the time schedule or question of continuing with the notion of the time being the essence of the contract would not arise. The obligations are mutual and the terms of the agreement are inter-dependent on each other. " 24. Mere Fixation of a period of delivery or a time in regard thereto does not by itself make the time as the essence of the contract, but the agreement shall have to be considered in its entirety and on proper appreciation of the intent and purport of the clauses incorporated therein. The state of facts and the relevant terms of the Agreement ought to be noticed in its proper perspective so as to assess the intent of the parties. The state of facts and the relevant terms of the Agreement ought to be noticed in its proper perspective so as to assess the intent of the parties. The agreement must be read as a whole with corresponding obligations of the parties, so as to ascertain the true intent of the parties. In the instant case, the Port of Discharge has not been named neither the surveyor is appointed - without whose certificate, question of any payment would not arise - can it still be said that time was the essence of the contract, in our view the answer cannot but be a positive no. (C) In the matter of Amteshwar Anand vs. Virender Mohan Singh and others, reported in AIR 2006 SC 151 , it was held as under : "36. The Final submission of the appellants was that time for payments under the agreements was of the essence. But the appellants themselves had never understood the agreements in that manner. They had asked for payment much after the dates had expired. As far as KK and Guneeta were concerned, in their application made in 1995 what they had asked for was for payments due in 1993. It was only as alternative that they had pleaded for the decree to be set aside that too on the ground of alleged contempt having been committed by VMS. ( 13. ) THE aforesaid dictums are applicable to the circumstances for holding that the time was not the essence of the contract between the parties. ( 14. ) IN view of the aforesaid discussion and in the lack of any averments in the agreement regarding dire need of money to the appellants and in view of the accepting the part payment by the appellant No. 1 after the due date, it is held that the stipulated time in the agreement was not the essence of the contract between the parties. Thus the findings of the trial Court in this regard are hereby affirmed. ( 15. Thus the findings of the trial Court in this regard are hereby affirmed. ( 15. ) COMING to the question regarding readiness and willingness of respondent No. 1 to perform his part of the contract is concerned on perusing the evidence it appears that during subsisting of the contract in the extended period the respondent No. 1 was ready and willing to perform his part of the contract to get the sale deed executed in his favour by paying the remaining sum of consideration to the appellants. Plaintiff Tarachand Kulparia (P. W. 1) categorically deposed that on 25-4-1988, he accompanied with Jagmohan, Gopal Vyas and Veerendra Pille along with the remaining sum went to the appellant No. 1 and requested him to receive the remaining consideration and execute the sale deed, on which he was told by the appellant No. 1 that there is time to 30th April, 1988 and he has to execute sale deeds of other houses also. Hence, he will execute the same along with such sale deeds. He further stated that on 30-4-1988 again accompanied with jagmohan and Gopal Vyas he went to the appellant No. 1 and made him a request to receive the remaining sum and execute the sale deed on which the appellant told him to wait for a week and assured him to execute the sale deed along with the sale deeds of the other houses. Such version of in-chief is remained intact in his entire cross-examination. His version is further supported by the abovenamed witnesses jagmohan (P. W. 2) in paragraphs 3, 5, 8, 9 and 10 of his deposition and Virendra kumar Pilley (P. W. 3) in paragraph 1, 2 in his chief and the same is remained intact in his cross-examination. It is further supported by Gopal Vyas (P. W. 4) in paragraph 1 and 2 in his chief, which is not destroyed in cross-examination. ( 16. ) ON the other hand appellant No. 1 Shankar Lal Pandey (D. W. 1) by admitting the execution of aforesaid agreement (Ex. P. 1) deposed that respondent no. 1 did not make the payment of remaining sum up to 22-1-1987 and he never extended the time for performance of the contract. He also stated that plaintiffs witnesses Veerendra Pillai and Gopal Vyas never came to his shop. P. 1) deposed that respondent no. 1 did not make the payment of remaining sum up to 22-1-1987 and he never extended the time for performance of the contract. He also stated that plaintiffs witnesses Veerendra Pillai and Gopal Vyas never came to his shop. In cross-examination he categorically stated that respondent No. 1 is residing in such premises from the time of his forefathers. He did not give any notice to the respondent No. 1 regarding cancellation of his alleged agreement. In paragraphs 3 and 4 he admitted that he received Rs. 5000/-from respondent No. 1 on 19-3-1987 but without disclosing any amount of arrears towards the rent of the accommodation said that the same was received in connection of rent but no separate receipt was given to the respondent No. 1. In paragraph 5 he admitted that aforesaid witnesses Veerendra Pillai and Jagmohan are the residents of same vicinity where the appellants and respondent No. 1 are residing. He also admitted that the sum taken by him from respondent No. 1 Rs. 10,000/- are still with him and the same was never returned. It was also admitted by him that the house in dispute was sold to respondent No. 2 in the month of May, 1988. Besides this he stated that he could not say whether the respondent No. 1 had sum or not with him while in the written statement it was stated that respondent No. 1 did not have the requisite sum to perform his part of the contract. This material inconsistency has come on record between the pleadings and the deposition of appellant No. 1. He could not state regarding any inimical relation with the witnesses examined by the respondent No. 1 in support of his case. ( 17. ) IN view of the aforesaid evidence and admission of the appellant No. 1 that he received the payment of Rs. 5000/- after the stipulated time on 19-3-1987 gives the sufficient circumstance to draw the inference that appellant No. 1 acknowledged the contract as fresh by making endorsement at the back side of the agreement with his signature on 19-3-1987. ) IN view of the aforesaid evidence and admission of the appellant No. 1 that he received the payment of Rs. 5000/- after the stipulated time on 19-3-1987 gives the sufficient circumstance to draw the inference that appellant No. 1 acknowledged the contract as fresh by making endorsement at the back side of the agreement with his signature on 19-3-1987. Although as per pleadings of the parties and the oral evidence available on the record time for performing the contract was extended up to 30-4-1988 and the findings of the trial Court in this regard is also based on such evidence, the same do not require any interference at this stage. ( 18. ) ALTHOUGH it is undisputed fact on record that the respondent No. 1 did not give any notice to the appellant before 30-4-1988 and for more than one and half year after executing the sale deed by the appellants in favour of the respondent No. 2. The same was given round about after one and half year on 21-10-1989 (Ex. P. 2) to appellant No. 1 calling him to perform his part of the contract. The same was replied by Ex. P. 3 stating that no time was extended for performance of the contract in spite of it after waiting up to the end of April, 1988 when respondent No. 1 did not turn up to perform his part of contract he executed the sale deed in favour of respondent No. 2 on 2-5-1988. Such reply reflects that time was extended for performance of the contract. Considering the circumstance that abovementioned witnesses having no ill-will with the appellants stated on oath that they went to the appellant No. 1 with the respondent No. 1 where respondent No. 1 made him request to receive the remaining part of consideration and to execute the sale deed in his favour, not only once but twice on 25-4-1988 and 30-4-1988, their version could not be discarded on the ground that immediately after 30-4-1988 the notice was not given by the respondent no. 1 to the appellants. In the facts and circumstances of the case the version stated by such witnesses appears to be reliable and findings of the trial Court in this regard appears to be on sound appreciation of evidence. ( 19. 1 to the appellants. In the facts and circumstances of the case the version stated by such witnesses appears to be reliable and findings of the trial Court in this regard appears to be on sound appreciation of evidence. ( 19. ) THE aforesaid circumstances are sufficient to draw the inference that respondent No. 1 was ready and willing to perform his part of the contract but his efforts were failed by the appellants. Although in order to show to have the sufficient fund with the respondent No. 1 no documentary evidence is put forth on the record but in view of the aforesaid available and reliable oral evidence mere in the lack of any documentary evidence it could not be inferred that respondent No. 1 was not ready and willing to perform his part of the contract. Long back such question was considered and answered by the Apex Court in the matter of Nathulal vs. Phoolchand, reported in AIR 1970 SC 546 in which it was held as under : 6. Phoolchand could be called upon to pay the balance of the price only after Nathulal performed his part of the contract. Phoolchand had an outstanding arrangement with his Banker to enable him to draw the amount needed by him for payment to Nathulal. To prove himself ready and willing a purchaser has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction: Bank of India ltd. vs. Jamsetji A. H. Chinoy and Messrs, Chinoy and Co. 77 Ind App 76 at p. 91 = (AIR 1950 PC 90 at p. 96 ). ( 20. ) IT is settled proposition of law that the findings of the trial Court, which are based on the proper appreciation of the recorded evidence available on the record could not be interfered at to the stage of the appeal in routine manner, unless the same appears to be contrary to the available evidence. Such proposition is laid by the Apex Court in the matter of Madhusudan Das vs. Smt. Narayani Bai and others, reported in 1983 MPLJ (SC) 313 = AIR 1983 SC 114 in which it was held as under : 8. Such proposition is laid by the Apex Court in the matter of Madhusudan Das vs. Smt. Narayani Bai and others, reported in 1983 MPLJ (SC) 313 = AIR 1983 SC 114 in which it was held as under : 8. The question whether the appellant was in fact adopted by jagannathdas and Premwati has been determined essentially on the basis of oral testimony, and reference has been made to a few documents only in supplementation of the oral evidence. At this stage, it would be right to refer to the general principle that, in an appeal against a trial Court decree, when the Appellate Court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial Court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the Appellate Court should permit the findings of fact rendered by the trial Court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial Court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies. In this connection, reference may usefully be made to W. C. Macdonald vs. Fred Latimer, AIR 1929 PC 15, 18 where the Privy council laid down that when there is a direct conflict between the oral evidence of the parties, and there is no documentary evidence that clearly affirms one view or contradicts the other, and there is no sufficient balance of improbability to displace the trial Courts findings as to the truth of the oral evidence, the appellate Court can interfere only on very clear proof of mistake by the trial Court. In Watt v. Thomas, 1947 AC 484, 486 it was observed: ". . . . . . . . . . . it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to Courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given". . . . . . . . . . . it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to Courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given". This was adverted to with approval by the Privy Council in sara Veeraswami vs. Talluri Narayya (deceased), AIR 1949 PC 32 and found favour with this- Court in Sarju Parshad vs. Raja Jwaleshwari pratap Narain Singh, 1950 SCR 781 , 783 : AIR 1951 SC 120 at p. 121. lt seems to us that this approach should be placed in the forefront in considering whether the High Court proceeded correctly in the evaluation of evidence before it when deciding to reverse the findings of the trial Court. The principle is one of practice and governs the weight to be given to a finding of fact by the trial Court. There is, of course, no doubt that as a matter of law if the appraisal of the evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or on a misreading of the evidence or on conjectures and surmises the appellate Court is entitled to interfere with the finding of fact. Our attention has been drawn by the respondents to The Asiatic steam Navigation Co. Ltd. . vs. Sub-Lt. Arbinda Chakravarti, (1959)Supp I SCR 979: ( AIR 1959 SC 597 ) but nothing said therein detracts, in our opinion, from the validity of the proposition enunciated here. ( 21. ) ALTHOUGH on behalf of the appellants different decisions of the Apex court and of this Court are cited in support of the contention that respondent No. 1 was neither willing nor ready to perform his part of the contract the same are taken into consideration in following paragraphs. ( 22. ) IN the matter of His Holiness Acharya Swami Ganesh Dasji vs. Sitaram thapar, reported in (1996)4 SCC 526 , the Apex Court decided such matter considering the dire need of money of vendor for the marriage of his daughter held that time was essence of the contract and in such circumstances it was held that vendee was not ready and willing to perform his part. But in the present matter either in the agreement or in the pleadings of the appellant neither such need is pleaded nor any evidence was led in this regard. Hence, the cited case is not helping to the appellants. ( 23. ) IN the matter of Mohini and others vs. Vidhyawati Rathore and others, reported in 2004 (2) MPLJ 169 the decree for specific performance was set aside considering the principle laid down by the Apex Court in the matters of S. Rangaraju Naidu vs. S. Thiruvarakkarasu, 1995 Supp (2) SCC 680, and in the matter of His Holiness Acharya Swami Ganesh Dasji (supra ). In the case of S. Rangaraju Naidu the Apex Court while considering the case of the alleged agreement to sale the immovable property executed between the parties, held that the relief of specific performance is discretionary one. So far this principle is concerned this Court does not have any dispute but as per settled proposition such discretion should be exercised in judicial manner and not in arbitrary manner as held by this Court in the aforesaid "mohini and others" (supra) case in paragraph 14. Hence, the same is also not helping to the appellants. ( 24. ) THEREFORE, it is held that the trial Court has not committed any perversity, infirmity or irregularity in holding that the respondent No. 1 was ready and willing to perform his part of the contract. Such findings are hereby affirmed and the question is answered accordingly in favour of respondent No. 1. ( 25. ) COMING to consider the third question regarding the validity of the sale deed executed by the appellants in favour of respondent No. 2 during subsisting the aforesaid contract of respondent No. 1 is concerned. It is apparent fact on record that respondent No. 2 being resident of same vicinity is residing in the house situated nearby the disputed house in which the appellant is residing and he was tenant of the appellant in such house, the same was sold to some other person and respondent No. 2 probably became the tenant of the purchaser of such house and as per un-rebutted deposition of respondent No. 1 in spite having the knowledge of his agreement the respondent No. 2 got executed the sale deed of disputed house in his favour from the appellants. Accordingly, such sale deed is executed during subsisting the agreement (Ex. Accordingly, such sale deed is executed during subsisting the agreement (Ex. P. 1) of the appellant. Therefore, by virtue of section 48 of the Transfer of the Property Act the same does not give any right to the respondent No. 2 over the respondent No. 1. As such on decreeing the suit of respondent No. 1 for specific performance the respondent No. 2 being subsequent purchaser is also bound to perform the contract by executing the sale deed in favour of the respondent No. 1 along with the appellants. In such premises the findings of the trial Court in this regard are also affirmed. ( 26. ) IN view of the aforesaid discussion, I have not found any substance in this appeal. Resultantly by affirming the impugned judgment and decree this appeal is hereby dismissed. The appellants shall bear their own costs of this appeal along with the cost of the respondents. The Counsel Fee Rs. 2,500/- is quantified. ( 27. ) DECREE be drawn up accordingly. Appeal is dismissed as indicated above. Appeal dismissed.