JUDGMENT K.S. Chauhan, J. 1. This appeal has been preferred being aggrieved by the judgment and decree dated 28-3-2002 passed by Sixth Additional District Judge, Jabalpur in Civil Suit No. 31 A/2000 whereby the suit of specific performance of agreement of the appellant has been dismissed. 2. The appellant's case in short was that on 7-8-1998 the respondent No. 1 agreed to sell the land bearing Khasra No. 28/15 area 0.053 hectare and the house constructed thereon measuring 23 x 45 ft. in consideration of Rs. 4 lacs situated at village Kheri (Shahpura), Tehsil Patan, District Jabalpur. The respondent No. 1 received Rs. 50,000/- as an earnest money, executed the agreement embodying the condition therein to sell the disputed property in a year on payment of balance amount of consideration. He was having the money all the times and was ready and willing to perform his part of contract but respondent No. 1 avoided and did not execute the registered sale deed and ultimately on 18-6-1999 he denied. In the meantime, the appellant came to know that respondent No. 1 is trying to sell the disputed property to respondents No. 8 and 9, therefore, he gave the notice through his counsel to respondents No. 1, 8 and 9 on 23-6-1999. The notice was received by them. He also came to know that respondents No. 1 to 3 executed the sale deed in favour of respondent No. 8 of the disputed property on 17-6-1999. The respondents No. 4 to 7 also gave the consent for execution of this sale deed. Since the respondent No. 1 has already entered the agreement of the disputed property in favour of the appellant, therefore, the sale deed ought not to have been executed in favour of the respondent No. 8. On 5-8-1999 the appellant again gave the legal notice to respondent Nos. 1, 8 and 9 through his counsel but no reply was sent by the respondents. Therefore, the suit was filed to pass the decree directing the respondent No. 1 to execute and register the sale deed after receiving the balance amount of consideration as per agreement dated 7-8-1998 and to handover the vacant possession of the disputed property to him or in the alternative the prayer was made to direct the respondent No. 1 to return the earnest money of Rs. 50,000/- along with interest and cost thereon amounting to Rs. 3,50,000/-. 50,000/- along with interest and cost thereon amounting to Rs. 3,50,000/-. The further relief was sought to declare the sale deed executed in favour of the respondent Nos. 8 and 9 to null and void and also the decree of permanent injunction directing the respondents not to alienate the disputed property to anybody else. 3. The respondent No. 1 separately and respondents No. 8 and 9 jointly submitted the written statement denying the most of the averments made in the plaint mainly contending that respondent No. 1 has not agreed to sell the disputed property to appellant in consideration of Rs. 4 lacs. He did not receive Rs. 50,000/- as earnest money. No execution of agreement was done by him. The agreement is forged and fabricated one. It was also averred that respondent No. 1 has executed the sale deed in favour of respondents No. 8 and 9 and other legal heirs have given consent thereto, therefore, the sale deed is valid. The possession of the disputed property has already been given to respondents No. 8 and 9. Now they are the owner and possession holder of the disputed property, therefore, the suit be dismissed. 4. Both the parties adduced the evidence before the trial Court and after appreciating the evidence the trial Court found that the appellant has not established his case and hence dismissed the suit. 5. Being aggrieved by the judgment and decree of the trial Court the appellant has preferred this appeal under section 96 of the Code of Civil Procedure on the various grounds mentioned in the memo of appeal. 6. We have heard Shri Vijay Pandey, learned counsel for the appellant and Shri S.P. Agnihotri, learned counsel for the respondents No. 8 and 9. 7. The learned counsel for the appellant has submitted that the trial Court has not properly appreciated the evidence. It was clearly established that the respondent No. 1 executed the agreement (Ex.P/1), received Rs. 50,000/- as earnest money. The appellant was having the sufficient money to get the sale deed registered within the stipulated time as per the terms of the contract by providing the balance amount of consideration. He tried several times to get the sale deed executed and registered in his favour but the respondent No. 1 always avoided and ultimately refused. 50,000/- as earnest money. The appellant was having the sufficient money to get the sale deed registered within the stipulated time as per the terms of the contract by providing the balance amount of consideration. He tried several times to get the sale deed executed and registered in his favour but the respondent No. 1 always avoided and ultimately refused. He has further submitted that notice (Ex.P/13) given to respondents and its reply (Ex.P/25) was sent through his counsel by respondent No. 1, therefore, in the light of the reply it should have been accepted that the respondent No. 1 signed on the agreement. It is further submitted that to deprive the appellant of his rights the same property has been sold to respondents No. 8 and 9 which is illegal and not binding on the appellant. The respondent No. 1 ought to have executed the sale deed in favour of appellant for due performance of agreement dated 7-8-1998 and for any reason if it was not possible then the earnest money with interest and cost ought to have been returned to the appellant. It is further submitted that the suit was instituted within the period of limitation. There was no any delay in prosecuting the matter hence the suit ought to have been decreed. The trial Court has committed an illegality in dismissing the suit. 8. On the other hand, the learned counsel for the respondents has supported the judgment and decree of the trial Court and submitted that respondent No. 1 has not executed any agreement in favour of the appellant. He has not received any amount of earnest money. When the agreement was not executed by him, there was no question to execute and register the sale deed of the disputed property in favour of appellant. It is further submitted that the document is spurious one. No scriber and notary were examined. Interpolation is made on the document. It is further submitted that when the appellant came to know that the land has been sold to respondents No. 8 and 9 why the appellant did not mention this fact in notice (Ex.P/13). The disputed property has already been sold to respondents No. 8 and 9 by the registered sale deed and possession has already been handed over to them. The trial Court has rightly dismissed the suit and, therefore, it does not call for any interference. 9. The disputed property has already been sold to respondents No. 8 and 9 by the registered sale deed and possession has already been handed over to them. The trial Court has rightly dismissed the suit and, therefore, it does not call for any interference. 9. The main point for consideration in this appeal is that whether the trial Court has committed any illegality in dismissing the suit of the appellant? 10. We have perused the entire record and evidence adduced in the case. 11. Atul Kumar Jain (PW-1), Raghunath Prasad (PW-2) and Govind Singh (PW-3) have deposed that respondent No. 1 agreed to sell the disputed property in consideration of Rs. 4 lacs out of which Rs. 50,000/- were received as earnest money and agreement Ex.P/1 was executed on 7-8-1998. According to the terms of the agreement the sale deed was to be executed and registered within one year after receiving the balance amount of consideration. This agreement (Ex.P/1) contains the signature of respondent No. 1 and also the signature of attesting witnesses Raghunath Prasad and Govind Singh Rajput. The document was notarized by Shri M.K. Nayak, Notary Patan and the signature of respondent No. 1 was taken in the register kept for the purpose. 12. Atul Kumar Jain (PW-1) has further deposed that after 4-5 months of this agreement he told to respondent No. 1 that the money is with him and, therefore, the sale deed be executed but he did not adhere to it, avoided the same, did not execute the sale deed and ultimately on 18-6-1999 he declined to execute and register the sale deed in favour of the appellant, therefore, he sent the notice (Ex.P/3) on 23-6-1999. In the mean time, he came to know that the respondent No. 1 has executed registered sale deed Ex.P/10 and P/11 on 17-6-1999 of the disputed property in favour of the respondents No. 8 and 9. 13. Atul Kumar Jain (PW-1) has further deposed that respondent No. 9 came to his house in March-April, 1999 and apprised to his father that has he got any objection if the disputed property is purchased by him. His father showed the agreement (Ex.P/1) and stated not to interfere in the matter. He has further deposed that respondent No. 8 is the daughter-in-law of respondent No. 9, therefore, it is presumed that she was also having the knowledge of execution of agreement (Ex.P/1). His father showed the agreement (Ex.P/1) and stated not to interfere in the matter. He has further deposed that respondent No. 8 is the daughter-in-law of respondent No. 9, therefore, it is presumed that she was also having the knowledge of execution of agreement (Ex.P/1). He has further deposed that when there was the agreement (Ex.P/1) to sell this property to the appellant then the respondent No. 1 have no right to execute the sale deed in favour of the respondents No. 8 and 9. 14. By this evidence the appellant tried to establish that the respondent No. 1 entered into agreement to sell the disputed property to him, received the earnest money and executed the agreement (Ex.P/1). He was willing and ready to perform his part but respondent No. 1 denied to execute the sale deed and ultimately sold the disputed property to respondents No. 8 and 9. 15. Shriram @ Radheshyam (DW-2) has denied the execution of agreement (Ex.P/1) stating that it does not contain his signature. The appellant has never given Rs. 50,000/- as earnest money. The agreement (Ex.P/1) is forged and fabricated. The disputed property has already been sold to respondents No. 8 and 9 and the vacant possession of the property has already been given to them. 16. Since there is rival contentions regarding the execution of agreement (Ex.P/1), therefore, the main point for consideration is that whether such document was executed by respondent No. 1 and then not acted upon? 17. The place of writing the agreement (Ex.P/1) is not mentioned in it. There is no signature of scriber of the document. The word attested is written on both the sides of document but it is not clear who has written the word attested. The Bandobast No. 382 of the disputed land is mentioned in the document whereas from evidence it is clear that the Bandobast number of this land is 282. The Khasra number of the land is mentioned 28/15 area 0.053 hectare and the house is said to be constructed on 23 x 45 ft. on this land whereas from the evidence it is clear that the house is constructed on Khasra No. 28/17. The word has been added in the document which is indicated by F to F words. The appellant himself has admitted that he has added the words but it does not contain his initial or signature. on this land whereas from the evidence it is clear that the house is constructed on Khasra No. 28/17. The word has been added in the document which is indicated by F to F words. The appellant himself has admitted that he has added the words but it does not contain his initial or signature. No initial or signature was obtained of respondent No. 1 on this interpolation. Thus, it appears that by doing the interpolation the appellant tried to include the land apart from the house in this agreement and thus the conduct of the appellant does not appear to be bona fide. 18. The appellant has given the notice (Ex.P/3) to respondents No. 1, 8 and 9 but in this notice on 23-6-1999 it is not mentioned that agreement was also of the land Khasra No. 28/15. If there has been agreement to sale the land also then this fact ought to have been mentioned in notice (Ex.P/3) which was given after 9-10 months of the alleged agreement. In Ex.P/2 also it is not mentioned that the house is constructed on Khasra No. 28/15. 19. This document is said to be written by Munnalal Sahu but the appellant has not examined him likewise this document is said to be notarized by M.K. Nayak, Notary Patan but he has also not been examined. The examination of notary was essential to prove the fact that respondent No. 1 executed the document and signed before him and his signatures were obtained in the register kept for the purpose because the respondent No. 1 was denying the fact of receiving the amount of Rs. 50,000/- as earnest money. 20. The learned counsel for the appellant has submitted in Ex.P/25 that respondent No. 1 has stated that his signatures were taken on blank stamp paper, therefore, on this basis it should be accepted that he has signed over this document but he has clearly stated that has not sent the reply (Ex.P/25) through his counsel Shri R.P. Khare, therefore, it can be said that he is denying to send such reply in pursuance to the notice (Ex.P/13) alleged to be sent by appellant. In such situation, the evidence of Shri R.P. Khare, Advocate, Jabalpur was essential to prove the fact that he has given the reply (Ex.P/25) on the instructions of respondent No. 1. In such situation, the evidence of Shri R.P. Khare, Advocate, Jabalpur was essential to prove the fact that he has given the reply (Ex.P/25) on the instructions of respondent No. 1. In absence of it, the contents of reply cannot be accepted as proved. When the respondent No. 1 was denying his signature on agreement (Ex.P/1) then the appellant was required to get the signature examined by handwriting expert but the same has not been done. However, the Court itself compared the signature of respondent No. 1 under section 73 of Indian Evidence Act and came to the conclusion that there is difference in between the admitted and disputed signatures of the respondent No. 1. 21. In Ajit Savant Majagavi vs. State of Karnataka, AIR 1997 SC 3255 , State of Maharashtra vs. Sukhdeo, AIR 1990 SC 2100, and Kuber Prasad s/o Lok Nath Ram vs. Mst. Sukharajua wd/o Gulab Singh, 2000 (3) MPLJ 108 the Court has laid down that the Court should not act as an expert, but, at the same time it does not mean that the Court has no power to compare the disputed signatures with admitted signatures. This power is clearly available under section 73 of the Evidence Act. Though it is hazardous to compare the signatures and act solely on that basis. 22. As stated earlier the place of execution of agreement (Ex.P/1) is not mentioned in it. The attesting witnesses of this document belongs to Shahpura. One witness Raghunath Prasad is typist in Shahpura Bhitoni and another Govind Singh, Stamp Vendor at Shahpura whereas the notary functions at Patan. The attesting witnesses have got the good relations with the appellant, therefore, they were made as attesting witness and brought from Shahpur to Patan. 23. From the aforesaid discussion it can be said that there are several discrepancies found with regard to execution of agreement (Ex.P/1), which makes it doubtful. 24. Section 16(c) runs as follows: Specific performance of a contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. 25. 25. The appellant has stated that he was having the sufficient money to perform his part but the respondent No. 1 did not execute the sale deed but he could not point out the day, date and time when he stated about it to respondent No. 1 but he has given the bald statement that after 4-5 months of agreement he stated to respondent No. 1 to execute the sale deed, it shows that he was not vigilant from the very beginning. From the plaintiff's evidence it is borne out that the respondent No. 9 visited his house and apprised that he is going to purchase the disputed property in March-April, 1999 in spite of the appellant did not take any appropriate steps by filing the suit at that time to prevent him from purchasing the disputed property. It is also borne out from his evidence that he came to know in between 17-6-1999 to 23-6-1999 that the defendant No. 1 is selling the disputed property to respondents No. 8 and 9 in spite of he did not take any step to prevent him from doing so. For the first time he gave the notice Ex.P/3 on 23-6-1999 when the sale deed Ex.P/10 and P/l 1 were already executed in favour of the respondents No. 8 and 9 on 17-6-1999. It appears that the appellant was sitting idle and as and when he came to know the fact the disputed property has been sold to respondents No. 8 and 9, he became alert and then he started the process. It again goes to show that he was not diligent from the very beginning. 26. The appellant filed the instant suit on 19-10-2000 after near about 16 months after the execution of sale deed by respondent No. 1 in favour of the respondents No. 8 and 9. It again goes to show that he was not vigilant and diligent about his rights. It is not sufficient that he filed the suit within limitation but what was required that he should have been diligent from the very beginning when the so called agreement was executed. 27. It again goes to show that he was not vigilant and diligent about his rights. It is not sufficient that he filed the suit within limitation but what was required that he should have been diligent from the very beginning when the so called agreement was executed. 27. In the case of Sandhyarani vs. Sudharani, AIR 1978 SC 537 it has been held that in the plaint the plaintiff must allege that he was ready and willing to perform his part of contract from the date of agreement till the date of institution of the suit. 28. In the case of Mademsetty Satyanarayana vs. G. Yellogi Rao, (1965) 2 SCR 221 it has been held that the relief of specific performance is discretionary and it is not given merely because it is lawful to do so but it is governed by the sound judicial principles. 29. In the case of Bishwanath Prasad Verma vs. Bhagwat Pandey, AIR 1982 Pat. 219 it has been held that the grant of this relief is the discretion of the Court and cannot be claimed as a matter of right. 30. The Court should take into consideration the circumstances of the case, the conduct of parties and their respective interest under the contract. 31. So far as the present case is concerned, the appellant has not come with the clean hands. The interpolation has been done in the agreement (Ex.P/1) by appellant himself with the avowed purpose to include the land also in the agreement. The several discrepancies have been found in this document as stated earlier. The sufficient evidence has not been produced to prove the case. He has not been prompt, active, vigilant and diligent from the very beginning to get the sale deed registered. He remained sleeping for the considerable time over his rights and does not prosecute the matter at the earliest opportunity available to him. If actually his rights were being infringed then he should have immediately rushed in the Court to prevent the respondent No. 1 to execute the sale deed of the disputed property in favour of the respondents No. 8 and 9. Thus, the trial Court has rightly not exercised the discretionary power in favour of the plaintiff and dismissed the suit. We also affirm the finding of the trial Court. Therefore, this appeal deserves to be dismissed. 32. Thus, the trial Court has rightly not exercised the discretionary power in favour of the plaintiff and dismissed the suit. We also affirm the finding of the trial Court. Therefore, this appeal deserves to be dismissed. 32. Consequently, the appeal fails and is hereby dismissed accordingly. The impugned judgment and decree passed by the trial Court is hereby confirmed. The appellant shall bear his own cost as well as the cost of the respondents. Counsel's fee as per schedule if pre-certified. Appeal dismissed