JUDGMENT : M. Venugopal, J. The appellant (plaintiff), during his life time has projected this instant Second Appeal as against the judgment and Decree dated 9.11.1999 in A.S. No. 55 of 1998 passed by the Learned Additional District Judge-cum-Chief Judicial Magistrate, Cuddalore, in reversing the judgment and Decree made dated 31.3.1998 in O.S. No. 111 of 1990 passed by the Learned Sub-Judge, Virudhachalam. 2. During the pendency of the Second Appeal, the appellant (plaintiff) has died on 17.4.2001 and later his legal representatives, appellants 2 to 5 have been brought on record as per the order passed by this Court in C.M.P. No. 15094 to 15095 of 2001 dated 22.7.2003. 3. The First Appellate Court, while passing the judgment in A.S. No. 55 of 1998 (filed by the respondent/defendant) on 9.11.1999, has inter alia observed that the plaintiff (since deceased) though alleged to have met with an accident, has not complied with the performance of Agreement of Sale and also, not established that he has been taking treatment for the accident alleged to have taken place on 4.4.1990 and further, opined that the Suit filed by the plaintiff (since deceased) is within three years from 11.4.1990, which is the time fixed for execution, which has expired on 11.4.1990 and consequently, set aside the judgment and Decree of the trial Court passed in the main suit dated 31.3.1998 and allowed the Appeal with costs. As against the alternative relief of refund of deposit of advance of Rs. 10,000/-, the First Appellate Court has given liberty to the plaintiff (since deceased) to file a separate Suit for refund of advance of Rs. 10,000/- paid by him. 4. Earlier, before the trial Court, in the main Suit, 1 to 3 issues and two additional issues have been framed for determination. On behalf of the plaintiff, witnesses P.W.1 to P.W.4 have been examined and Exhibits A-1 to A-15 have been marked. On the side of the defendant, witnesses D.W.1 and D.W.2 have been examined and Exhibit B-1 has been marked. 5. The trial Court, after analysing and scrutinising the entire oral and documentary evidence available on record has clearly come to the conclusion that as per Agreement, the plaintiff (since deceased) has been ready to perform his part of the contract and also that he has stated that he is ready to pay the balance amount of Rs. 5. The trial Court, after analysing and scrutinising the entire oral and documentary evidence available on record has clearly come to the conclusion that as per Agreement, the plaintiff (since deceased) has been ready to perform his part of the contract and also that he has stated that he is ready to pay the balance amount of Rs. 1,06,600/- and resultantly, granted the relief of specific performance by decreeing the Suit with costs. Furthermore, it also directed the respondent/defendant to receive the balance consideration oft 1,06,600/- from the plaintiff (since deceased) and after receipt of the said amount, the respondent/defendant has to execute the Sale Deed at the expense of the plaintiff and to register the document and also, further to hand over the possession, failing which, at the expense of the plaintiff, the respondent/defendant is directed to execute the Sale Deed through Court. 6. At the time of admission of the Second Appeal, this Court has framed the following substantial questions of law for consideration: 1. Is not the judgment and Decree of the Lower Appellate Court perverse in holding that the plaintiff was not ready and willing to perform his part of the contract? 2. Is the Lower Appellate Court correct in holding that the evidence of the plaintiff shall be eschewed? 3. Is the Lower Appellate Court correct in holding that the provisions of Order 18, Rule 3 are violated in this case? 4. Is the Lower Appellate Court correct in holding that time is the essence of the contract without any specific recital in Exhibit A-2 Agreement to that effect? The Contentions, Discussions and Findings on substantial questions of law 1, 2 and 4: 7. The Learned Counsel for the appellants submits that the plaintiff, later deceased, has produced Exhibits A-11 to A-15 x-rays taken during April 1990-May 1990, which clearly point out that the plaintiff (since deceased) met with an accident and the accident has taken place during April 1990. 8. The Learned Counsel for the appellants urges before this Court that the endorsement in the returned cover viz., Exhibit B-1 as 'refused' is a false one. 9. Expatiating his submissions, the Learned Counsel for the appellants project an argument that the Courts below have misconstrued Exhibit A-2 Sale Agreement dated 11.10.1989 and held incorrectly that time is the essence of contract. 9. Expatiating his submissions, the Learned Counsel for the appellants project an argument that the Courts below have misconstrued Exhibit A-2 Sale Agreement dated 11.10.1989 and held incorrectly that time is the essence of contract. According to the Learned Counsel for the appellant, the First Appellate Court has gone wrong in arriving at a conclusion that the plaintiff (since deceased) has not suffered with an accident during April 1990 and in this regard, it has failed to appreciate Exhibit AI General Power of Attorney dated 18.9.1995 and Exhibits A-11 to A-15 x-rays in real and proper perspective. 10. The plea of the appellants is that the plaintiff (since deceased) has proved his readiness and willingness from the date of Exhibit A-2 Sale Agreement dated 11.10.1989 till the date of Suit and because of the accident only, there has been a set back, which cannot be construed as the plaintiff has not been ready and willing to fulfil his part of the contract, inasmuch as, the accident that has taken place is beyond the control of the plaintiff. Lastly, it is the decision of the Learned Counsel for the appellants that the reasons ascribed by the First Appellate Court in rejecting the testimony of P.Ws. 2 and 3 are clearly unsustainable in the eye of law. 11. Conversely, it is the submission of the Learned Counsel for respondent/defendant that the First Appellate Court has traversed in detail about the entire gamut of the case, after taking note of the oral and documentary evidence projected by the parties and has come to a categorical conclusion that the plaintiff (since deceased) has not complied with the performance of Agreement of Sale and further, he has not discharged his onus that he has been taking treatment for the accident purported to have taken place as on 4.4.1990 and very rightly it allowed the First Appeal, projected by the Respondent by setting aside the judgment and Decree of the trial Court, which required no interference in the hands of this Court, sitting in Second Appeal. 12. In the plaint, the plaintiff (since deceased) has averred that the suit property absolutely belonged to the respondent/defendant, who has consented to sell the property and that the plaintiff has approached the respondent/defendant and after holding talks, it has been finally agreed by the respondent/defendant to sell the suit property for a sale consideration of Rs. 1,16,600/-. 12. In the plaint, the plaintiff (since deceased) has averred that the suit property absolutely belonged to the respondent/defendant, who has consented to sell the property and that the plaintiff has approached the respondent/defendant and after holding talks, it has been finally agreed by the respondent/defendant to sell the suit property for a sale consideration of Rs. 1,16,600/-. The respondent/defendant, on 11.10.1989 has received a sum of Rs. 10,000/- as advance and in pursuance of the same on 1 1.10.1989 itself, the plaintiff and respondent/defendant have created an Agreement of Sale and further, in order to confirm the Sale Agreement, the respondent/defendant has handed over to the plaintiff, his parent documents concerning the property. 13. In the Sale Agreement, a recital has been written to the effect that the plaintiff has to complete the sale before 11.4.1990 and also the said Agreement contained other clauses. The plaintiff in terms of the Agreement, within the time limit has been ready to execute the Sale Deed. But, he has met with an accident and because of that he has not been in a position to execute the Sale Deed before 11.4.1990, which facts, the respondent/defendant has been quite aware. After recovering from the accident treatment, the plaintiff has, on numerous occasions, informed the respondent/defendant to execute the Sale Deed in his favour after receiving the balance sale consideration of Rs. 1,06,600/-. The respondent/defendant, has deliberately procrastinated the matter and on 28.6.1990, he demanded a further sum of Rs. 50,000/- and only then, he informed that a Sale Deed will be executed and also stated that the Agreement has expired and also he will not refund the advance of Rs. 10,000/- etc. The plaintiff cannot pay a further sum of Rs. 50,000/- as demanded by the respondent/defendant. Such a claim made by the respondent/defendant is unlawful. The respondent/defendant, as per law, has to execute a Sale Deed. 14. The plaintiff has issued a Lawyer's notice dated 2.7.1990 to the respondent/defendant. However, the respondent/defendant after receipt of notice has not issued any reply and that in the notice sent by him on 9.7.1990, the plaintiff has informed that he is ready with the balance sum of Rs. The respondent/defendant, as per law, has to execute a Sale Deed. 14. The plaintiff has issued a Lawyer's notice dated 2.7.1990 to the respondent/defendant. However, the respondent/defendant after receipt of notice has not issued any reply and that in the notice sent by him on 9.7.1990, the plaintiff has informed that he is ready with the balance sum of Rs. 1,06,600/- to pay the same before the Vadalur Sub-Registrar's Office along with the witnesses and to get the Sale Deed executed in his favour and till 5 O'clock on the said day, he has been waiting along with the witness at the Vadalur Sub-Registrar's Officer. Inspite of the same, the respondent/defendant has not executed the Sale Deed. 15. Within three years from the date of execution of the Sale Agreement dated 11.10.1989 and from the expiry of the time as per Sale Agreement from 11.4.1990 within three years, the Suit has been filed in time. Under these circumstances, the plaintiff has laid the suit seeking for the relief of specific performance in directing the respondent/defendant to receive the balance sum of Rs. 1,06,600/- as per Sale Agreement dated 11.10.1989 in respect of the suit property within a time limit to be framed by this Court. 16. In the written statement, the respondent/defendant has taken the plea that the Suit is not maintainable either in law or on facts and further, it is true that a Sale Agreement has been entered into between the parties in respect of the suit property on 11.10.1989. But, the respondent/defendant has not handed over the parent document to confirm the said Sale Agreement and in the Agreement, six months time mentioned therein is the essence of the contract and this has been informed to the plaintiff by the defendant. The respondent/defendant, in regard to the purchase of six acres of land from one Arasan, has agreed to purchase three acres of land at the rate of Rs. 50,000/- per acre and the said sale has to be completed within a period of six months and also, he has paid an advance of Rs. 5,000/- on 1.10.1989.Only for purchasing the said three acres of land, the plaintiff has agreed to sell the suit property to the respondent/defendant and as such, the Suit Agreement has come into existence. 50,000/- per acre and the said sale has to be completed within a period of six months and also, he has paid an advance of Rs. 5,000/- on 1.10.1989.Only for purchasing the said three acres of land, the plaintiff has agreed to sell the suit property to the respondent/defendant and as such, the Suit Agreement has come into existence. The time of six months has been made mention of in the Sale Agreement and the plaintiff has also been informed about the act of payment of advance of Rs. 5,000/- on 1.10.1989 made by the respondent/defendant to one Arasan in regard to the purchase of property at Maruvai Village. Only after mentioning that time is the essence of contract with the consent of the plaintiff (since deceased) the Sale Agreement has been entered into. As per Agreement, the respondent/defendant on numerous occasions asked the plaintiff to complete the Sale transaction within the time limit, but he has not been ready and willing to perform his part of the contract and he has not been possessed with the requisite money so as to perform his part of the contract during the Sale Agreement period. 17. The plaintiff has not met with an accident either before 11.4.1990 or thereafter. To cover up his mistakes/latches, the factum of accident has been invented. Before 11.4.1990, on various occasions, the respondent/defendant has met the plaintiff and requested him to finish his part of the contract by paying the balance amount. But the plaintiff has not given any proper reply and has come up with false excuses, but has not been ready to fulfil his part of the contract in regard to the execution of the Sale Deed. Finally, the respondent/defendant, through his lawyer on 18.4.1990 has issued a notice to the plaintiff, which has not been received by him and the same has been returned. 18. It is wrong to state that on 9.7.1990, the plaintiff has been waiting at Vadalur Sub Registrar's Office along with witnesses and with money in regard to the execution of the Sale Deed till 5 O'clock in the evening. Since the respondent/defendant has cancelled the Sale Agreement by issuance of notice, the plaintiff cannot claim any right as per Agreement of Sale dated 11.10.1989. The respondent/defendant is reserving his right to claim damages/losses of Rs. Since the respondent/defendant has cancelled the Sale Agreement by issuance of notice, the plaintiff cannot claim any right as per Agreement of Sale dated 11.10.1989. The respondent/defendant is reserving his right to claim damages/losses of Rs. 15,000/- for the action of the plaintiff and in this regard reserves his right to proceed against the plaintiff separately for filing of a Suit. 19. P.W. 1 in his evidence has deposed that he is the Power Agent of the plaintiff and at the time of the execution of the Power Deed by the plaintiff, the plaintiff has been admitted at Jipmer Hospital and in the said Hospital, the Power Deed Exhibit A-1 has been executed and further that the suit property belongs to the respondent/defendant and the Sale consideration for the suit property has been arrived at for Rs. 1,16,000/- and an advance of Rs. 10,000/- has been paid and Exhibit A-2 is the Sale Agreement dated 11.10.1989 entered into between the plaintiff and the respondent/defendant and as per Agreement, the sale has to be completed within six months viz., before 11.4.1990 and in support of the same, Exhibit A-3 Sale Deed dated 21.3.1974 (Parent Document) has been handed over by the respondent/defendant and within the time limit specified in the Agreement, he has been ready to purchase the property. 20. It is the further evidence of P. W.1 that he along with the plaintiff has been proceeding in a motor cycle to Neyveli Township and because of the mist/fog, the motor cycle has dashed against the tyre cart, which has come in the opposite direction. As a result of which, the plaintiff has sustained injuries on left hand, leg and there has been a thigh fracture and at that time, an auto has come and he has taken the plaintiff to Mandarakuppam Sankaralingam Nursing Home, who has given the first aid to the plaintiff. Further, the plaintiff has been taken to Cuddalore O.T. where Dr. As a result of which, the plaintiff has sustained injuries on left hand, leg and there has been a thigh fracture and at that time, an auto has come and he has taken the plaintiff to Mandarakuppam Sankaralingam Nursing Home, who has given the first aid to the plaintiff. Further, the plaintiff has been taken to Cuddalore O.T. where Dr. Angamuthu Artho Specialist has seen him and admitted the plaintiff in the Sankaralingam Clinic and till 20.5.1990, the plaintiff has taken treatment with Sankaralingam and in spite of the same, the plaintiff has not recovered from his injuries and he has taken to Nagari Puthur at Andhra Pradesh where he has remained till 21.6.1990 and there to some extent he has been cured and again on 22.6.1990, they have come to Neyveli and till 27.6.1990, he has taken rest at Neyveli. 21. P.W.1 proceeds in his evidence to state that on 28.6.1990, he has met the respondent/defendant and requested him to execute the Sale Deed in his favour and for three days, the respondent/defendant has not said anything and on 1.7.1990 he demanded an additional sum of Rs. 50,000/- for which he has not agreed to and on 2.7.1990, he has issued a lawyer's notice and in the said notice, it has been made mention of that they will be ready and waiting with the money at Vadalur Sub Registrar's Office and the respondent/defendant has been asked to come over there for the execution of the Sale Deed and on 9.7.1990, from morning till evening 5.45 p.m. they remained in the Vadalur Sub Registrar's Office, but the respondent/defendant has not executed the Sale Deed. Exhibit A-4 is the lawyer's notice dated 2.7.1990 issued to the respondent/defendant and he has received the lawyer's notice on 9.7.1990. P.W.1 in his evidence has added further to the effect that at the time of the filing of the Suit, the balance sale amount has not been deposited into the Court and no x-rays, which has been taken for the plaintiff has been filed before the Court and because of the accident that has occurred to the plaintiff, the Sale Agreement has not been completed and for staying at Nagari Puthur, no receipt has been filed. 22. 22. P.W.2 in his evidence has deposed that Exhibit A-10 is the Agreement entered into by him along with his brother's wife, Azaharsamy and within six months, the sale has to be executed and that Azaharsamy, on 4.4.1990 has met with an accident and sustained injuries and he has been admitted in the Cuddalore Doctor's Hospital wherein he has taken one and a half months treatment and for the plaintiff, there has been a fracture in his hand and leg and he cannot move and later on he has been taken to Puthur for treatment and after coming from Nagari Putur, within one month, the amount has been paid and Sale Deed has been executed and after expiry of the time limit within three months he has agreed as per Agreement. 23. P.W.3 in his evidence has deposed that he has signed in Exhibit A-2 Agreement as a witness and likewise, he has also signed Exhibit A-10 Agreement as a witness and further, in between the plaintiff and the respondent/defendant, an Agreement has been written in his house and on the same day, an Agreement has been entered into between Chinnathambi, his brother's wife and one Azaharsamy and in both the Agreements, within six months, the sale has to be completed and since the plaintiff has met with an accident, he has not been in a position to execute the Sale Deed and also in Cuddalore Dr. Angamuthu Hospital, he has taken treatment for nearly one and a half months and in spite of the same, he has not got cured and subsequently, he has stayed at Nagari Puthur for one month and on 28.6.1990, he has brought the respondent/defendant to the plaintiff and the respondent/defendant has informed that he will come after two days and again he has asked the Power Agent Thandavarayan and requested him to bring the respondent/defendant, but the respondent/defendant has informed that a further sum of Rs. 50,000/- will have to be paid and then only he will execute the Sale Deed, for which, it was not agreed to by the plaintiff. At the time of demanding the respondent/defendant to come for execution of the Sale Deed, the plaintiff has been in possession of the money. 24. 50,000/- will have to be paid and then only he will execute the Sale Deed, for which, it was not agreed to by the plaintiff. At the time of demanding the respondent/defendant to come for execution of the Sale Deed, the plaintiff has been in possession of the money. 24. P.W.4 in his evidence has deposed that within six months from the date of the execution of the Sale Agreement, the Sale Agreement has not been fulfilled an on 4.4.1990, he has met with an accident and he has suffered left leg fracture, left hand fracture and that the accident has taken place at Neyveli and he has taken first aid treatment with Dr. Sankaralingam and the said Doctor has been residing at Neyveli, but employed at outstation and also he has gone to Cuddalore O.T. Dr. Angamuthu, who is serving at Cuddalore Government Hospital and he has taken treatment with him for one and a half months and his left hand has been cured, but leg has not been cured and therefore, he has gone to Nagari Puthur for further treatment where he stayed for one month and still he has not been cured fully and asked to come after two months. 25. P.W.4 continuing further in his evidence has also uttered that after coming from Nagari Puthur, he made arrangements to call for the respondent/defendant and who informed that he will come within two days and again he sent P. W.1 and P. W.3 to fetch respondent/defendant. But the respondent/defendant asked for additional sum of Rs. 50,000/- towards Sale Agreement and on the Sale Agreement date, another Sale Agreement has been entered into and the amount mentioned in the Sale Agreement therein has been paid etc. P.W.4 in his evidence has also deposed that on 5.4.1990, he has taken Exhibit A-11 X-ray for the fracture he has sustained on his hand and Exhibit A- 12 is the X-ray taken for his leg fracture and on 17.4.1990 Exhibit A-13 another X-ray has been taken for him and Exhibit A- 14 is X-ray taken on 18.4.1990 and Exhibit A-15 is the X-ray taken on 20.5.1990 for removal of the bandage etc. Moreover, P.W.4 in his evidence has stated that he has no money in the Bank for making payment to the present suit Sale Agreement and also he has not deposited money before the Court at the time of filing of the suit. 26. The main thrust of the argument projected by the Learned Counsel for the appellants is that the plaintiff (since deceased) has been ready and willing to perform his part of the contract and there has been a set back for him because of the fact that he has met with an accident on 4.4.1990 and therefore, he could not perform his part of the contract within the time stipulated in the Sale Agreement dated 11.10.1989. 27. That apart, the plaintiff (since deceased) has filed Exhibits A-11 to A-15 X-rays for the injuries sustained by the plaintiff and witnesses P.Ws.1, 2, 3 and also the plaintiff has been examined as P.W.4 before the trial Court to show that actually the plaintiff (since deceased) has met with an accident and since the unforeseen occurrence/incident has taken place on 4.4.1990, the plaintiff has not been in a position to fulfil his part of the contract and the accident that has taken place on 4.4.1990 is beyond the control of the plaintiff and that the 1st Appellate Court has committed an error in reversing the well considered judgment of the trial Court while setting aside the judgment of the trial Court in the main suit and allowing the First Appeal. 28. In the instant case on hand, Exhibit A-2 Agreement dated 11.10.1989 entered into between the plaintiff (since deceased) and the respondent/defendant has not been disputed by the parties. Equally, the factum of advance of Rs. 10,000/- paid by the plaintiff (since deceased) to the respondent/defendant is also not in dispute. At this juncture, a perusal of the plaint shows that the plaintiff (since deceased) in the plaint has only mentioned that he has met with an unfortunate accident, but has not expressly mentioned about the date of accident. Also, in the cause of action paragraph-9 of the plaint, the plaintiff (since deceased) has not mentioned about the date of accident as 4.4.1990. Further, even the factum of accident alleged to have taken place has also not been stated by the plaintiff in the cause of action paragraph. 29. Also, in the cause of action paragraph-9 of the plaint, the plaintiff (since deceased) has not mentioned about the date of accident as 4.4.1990. Further, even the factum of accident alleged to have taken place has also not been stated by the plaintiff in the cause of action paragraph. 29. It transpires from Exhibit A-4 notice dated 2.7.1990 issued by the plaintiffs (since deceased) lawyer addressed to the respondent/defendant wherein it is mentioned only that an accident has taken place and because of the said accident, the plaintiff (since deceased) has not been in a position to complete the sale before 11.4.1990 and further, it has been mentioned that these facts are known to the respondent/defendant. Even in this Exhibit A-4 notice, the date of accident has not been mentioned by the plaintiff (since deceased) and conspicuously the date of accident does not find a place in Exhibit A-4. Notice dated 2.7.1990, which has been issued by the plaintiffs (since deceased) lawyer addressed to the respondent/defendant. For the first time in I.A. No. 185 of 1997 in O.S. No. III of 1990 (filed by the Power Agent of the plaintiff (since deceased)) in paragraph-3, it is mentioned as "the plaintiff met with an accident on 4.4.1990. He was bed ridden for a long time due to the several fractures, etc." In the instant case on hand, though on the side of the plaintiff, before the trial Court Exhibits A-II to A-15 X-rays have been filed. At whose instance the X-rays have been taken and which Doctor has advised the plaintiff to take the X-rays for the accident that he has met with. All these details have not been stated. For all these, there is no cogent, coherent, convincing, plausible and acceptance of sufficient evidence produced on behalf of the plaintiff before the trial Court, which clearly create an adverse circumstance against him. If really the accident has taken place on 4.4.1990, as alleged by the plaintiff, then certainly this Court is of the considered opinion that the plaintiff, as a prudent person, in the plaint would have made mention of about the date of accident in a natural and in a proper manner. Unfortunately, the plaintiff has not mentioned the date of accident alleged as on 4.4.1990. The crucial date of accident, according to the appellant/plaintiff is 4.4.1990. Unfortunately, the plaintiff has not mentioned the date of accident alleged as on 4.4.1990. The crucial date of accident, according to the appellant/plaintiff is 4.4.1990. However, this has been repudiated vehemently on the side of the respondent/defendant and according to the respondent/defendant, the plaintiff (since deceased) met with an accident on 24.4.1995, which is nearly five years later date of 4.4.1990 as alleged by the plaintiff. 30. In a civil litigation/civil suit, it is true that the plaintiff is a DOMINUS LITUS. Equally, it is an axiomatic principle in law that the plaintiff has to stand or fall on his own legs in a civil suit. He cannot pick holes or take advantage of the defects or loop holes in the case of the defendant. Although, an endeavour has been made by the plaintiff (since deceased) viz., now on the side of the appellants to the effect that accident has really taken place only on 4.4.1990 and that for the first time it has been made mention of by the Power Agent of the plaintiff in I.A. No. 185 of 1997 in O.S. No. 111 of 1990 that the date of accident is 4.4.1990, yet this Court is of the considered opinion that when the plaintiff files the plaint, he is required to furnish the necessary details in a qualitative and quantitative manner as per Order 7 of the Civil Procedure Code and all the necessary ingredients that are required to be specified as per Order 7 of the Civil Procedure Code will have to be followed to or adhered to scrupulously and in true letter and spirit by the plaintiff in this regard. The plaintiff cannot shirk or abdicate his responsibilities and he has to necessarily specify the necessary pleadings that go to make up the filing of the plaint, which are of requisite nature, which forms a cementing platform for a litigant to project his case in an objective and integral fashion. 31. The object of Order 7 Rule 1 of the Civil Procedure Code is to enable the Defendant to ascertain from the plaint the necessary facts so that he may admit or deny them. 32. A plaintiff must furnish such details in the plaint as to enable the defendant and the Court to ascertain from the plaint whether in fact and in law, the cause of action has arisen as alleged or not. 32. A plaintiff must furnish such details in the plaint as to enable the defendant and the Court to ascertain from the plaint whether in fact and in law, the cause of action has arisen as alleged or not. The plaintiffs mere statement that the cause of action has arisen and that he has good cause of action is of little avail to achieve the desired purpose. 33. In a suit of a promissory note by an indor see he must state that notice of 'dishonour', was given to the indorser and if it was not given, he must state the facts which exempted him from issuing notice as per decision Kanhyalal and Others v. Ramakwuar and Others AIR 1956 Rajasthan 129. 34. Coming to the plea of readiness and willingness on the part of the plaintiff (since deceased) and much stress has been laid on behalf of the plaintiff that notice dated 2.7.1990 has been issued to the respondent/defendant requiring him to come to the Vadalur Sub Registrar's Office and also that the plaintiff (since deceased) has been present along with his witnesses with balance sale consideration etc., and that he has remained in person at the Sub Registrar's Office till 5.45 p.m. in the evening and only because of the inevitable accident, the plaintiff could not be able to fulfil or perform his part of the contract as per Agreement dated 11.10.1989. It is to be pertinently pointed out by this Court that Exhibit A-4 notice sent by the plaintiff's lawyer has only been received in the evening on 9.7.1990 and as such, one cannot attach or one cannot give too much weight to the plea projected by the plaintiff that he has been ready and willing to perform his part of the contract, so as to go with the ambit and purview of Section 16(c) of the Specific Relief Act, as opined by this Court. 35. In the present case on hand, it cannot be lost sight of that Exhibit B-I returned cover addressed to the plaintiff plays a significant role in the case, so as to enable this Court to arrive at a conclusion. The respondent/defendant's Advocate has issued Exhibit B-1 notice to the plaintiff (since deceased) and returned cover has been marked as Exhibit B-1 before the trial Court. The respondent/defendant's Advocate has issued Exhibit B-1 notice to the plaintiff (since deceased) and returned cover has been marked as Exhibit B-1 before the trial Court. On the reverse of Exhibit B-1 returned cover there are postal endorsements made on 20.4.1990, 21.4.1990, 23.4.1990, 24.4.1990, 25.4.1990, 26.4.1990, 28.4.1990, 1.5.1990, 3.5.1990 and finally there has been endorsement as 'refused' on 4.5.1990. Obviously, the Postal Authority/Postman has taken genuine and real efforts to serve Exhibit B-1 notice (returned cover) to the plaintiff (since deceased), but it proved futile. Also on the reverse of Exhibit B-12 returned cover above the postal stamp, an endorsement has been written by the Postman/Postal Authority as 'absent'. In this regard, the First Appellate Court has drawn an adverse inference as per Section 14 of the Indian Evidence coupled with Section 27 of the General Clauses Act. 36. The Learned Counsel for the appellants contends that Exhibit B-1 is only the returned cover and one may not know what exactly the contents are found inside Exhibit B-1 cover and in the absence of a copy of the said notice sent by the respondent/defendant being marked before the trial Court, one cannot attach due weightage/importance to Exhibit B-1 returned cover. 37. Repelling the contention of the Learned Counsel for the appellants in this regard, the Learned Counsel for the respondent/defendant strenuously contends that Exhibit B-1 notice has been sent to the plaintiff, which will exhibit clearly that the respondent/defendant has revoked the Agreement of Sale dated 11.10.1989 and only after knowing the contents of revocation of the Agreement, the plaintiff (since deceased) has thought fit not to receive the same and very aptly the First Appellate Court has drawn the presumption, required to be drawn as per Section 27 of the General Clauses Act and also, as per Section 114 of the Indian Evidence Act and in this regard, the finding or conclusion arrived at by the First Appellate Court cannot be said to be either a perverse one or illegal one, in the eye of law. No doubt, a copy of Exhibit B-1 notice revoking the Agreement of Sale has not been marked separately as an exhibit before the trial Court. No doubt, a copy of Exhibit B-1 notice revoking the Agreement of Sale has not been marked separately as an exhibit before the trial Court. The very fact that Exhibit B-1 has been returned by the plaintiff (since deceased) will unerringly point out that an adverse inference drawn by the First Appellate Court in relation to Exhibit B-1 is a correct one, which requires no interference in the hands of this Court. 38. Coming to the aspect that though on the side of the appellant it is projected that infact another Sale Agreement on the same day, the plaintiff (since deceased) has been ready and willing to perform his part of the contract etc., this Court is of the considered view that those are not germane to the present facts on hand and as such, the purported readiness and willingness of the plaintiff (since deceased) in regard to the other agreement other than the suit agreement is of little consequence in regard to the facts and circumstances of the present case, which float on the surface. 39. Merely mentioning that the plaintiff (since deceased) has been ill and has been taking treatment because of the accident that is alleged to have taken place on 4.4.1990 cannot be a factor for this Court to hold that the plaintiff (since deceased) has clearly established that the accident has infact taken place on 4.4.1990. Per contra, when the respondent/defendant has come out with a definite and categorical plea that though the accident taken place, it has taken place only on 24.4.1995 and not on 4.4.1990 as alleged by the plaintiff (since deceased), then this Court is of the considered opinion that the onus/burden of proving the factum of accident on 4.4.1990 is squarely on the plaintiff (since deceased) and only after discharging the said onus, the respondent/defendant can be required to project his version of his case. Moreover, in the present case, the burden of proof though is not static, yet when on the side of the respondent/defendant a definite stand has been taken that the accident has taken place on 24.4.1995 and not on 4.4.1990 then it is the primordial duty of the plaintiff (since deceased) to prove to the subjective satisfaction to satisfy the judicial conscience that infact the accident has taken place on 4.4.1990. Miserably in the present case, the plaintiff (since deceased) or the appellants have not established convincingly that the accident has taken place on 4.4.1990. The relief of specific performance being granted by a Court of Law is undoubtedly a discretionary and equitable remedy and the same cannot be claimed by the plaintiff (since deceased) either as a course or as a matter of routine. In the present case on hand, the suit has been filed within three years from 11.4.1990 and therefore, the suit is in time. 40. The continuous readiness and willingness on the part of the plaintiff (since deceased) is a matter to be looked into by the Court while awarding the relief of specific performance. The conduct prior to the filing of the suit and subsequent to the filing of the suit will have to be ordinarily taken into account by a Court of Law while dealing with a case of specific performance. At the risk of repetition, it is to be pointed out by this Court that though the plaintiff (since deceased) is purported to have been involved in an accident on 4.4.1990, the same has not been proved and also that the plaintiff has not fulfilled his part of the contract as per Exhibit A-2 Sale Agreement and all the more, an important factor has not been established by him that he has been taking treatment for the accident that has taken place. At least, he could have examined the Doctor, who has advised him to take X-rays in regard to the accident that is alleged to have taken place on 4.4.1990. But in the present case, the plaintiff (since deceased) has not established that the accident has taken place on that date. Looking at from any angle and also taking note of the entire conspectus, the attendant circumstances in the present case, this Court, comes to an inescapable and irresistible conclusion that the First Appellate Court has correctly held that the plaintiff (since deceased) has not been ready and willing to perform his part of the contract and there is no misreading of evidence or there is no mis-appreciation of evidence by the First Appellate Court. As a matter of fact, the First Appellate Court has rendered a pure factual finding that the plaintiff (since deceased) has not complied with the performance of the Agreement of Sale and in that view of the matter, it cannot be said that the evidence of plaintiff viz., P.W.4 has been eschewed by the First Appellate Court and also, the time, in the present case, in a Sale Agreement, is the essence of contract and the same has been understood to be so between the parties and accordingly, the substantial questions 1, 2 and 4 are answered against the appellants/plaintiffs. 41. The Contentions, Discussions and Findings on substantial question of law No. 3: Before the trial Court, the plaintiff (since deceased) has been examined as P.W.4. I.A. No. 185 of 1997 in O.S. No. III of 1990 has been filed before the trial Court by the Power Agent of P.W.4 viz., P.W. 1 praying for permission of the Court to examine the plaintiff as P.W.4. Unfortunately, no orders have been passed in the said application. However, this Court points out that it is the duty of a Court of Law to pass appropriate orders one way or the other in regard to the filing of the petition where a particular relief is sought for by a party. But unfortunately, the trial Court has not passed any orders in the said Interlocutory Application. 42. This Court worth points out that the ingredients of Order 18 Rule 3(A) of the Civil Procedure Code are not mandatory and the breach does not render such evidence as nullity as per decision MPa. Basheer Agameth and 3 Others v. Kathija Beevi and 13 Others (2008) 7 MLJ 1206 . 43. Further, the rights given to the party under Order 18 Rule 3(A) of the Civil Procedure Code is left intact despite a witness having been examined long before the commencement of recording of evidence of either party as per decision Ramasanry Gounder and Others v. Muthayammal and Another AIR 1999 Mad 363 , 364: LNIND 1998 Mad 318: (1998) 2 MLJ 591 . When the Defendant has not raised an objection at the time of recording the plaintiffs evidence, the breach of the rule will not render the evidence of plaintiff a nullity as per decision in C. Sesha Reddy v. T. Basavana AIR 2003 Kar 335 . When the Defendant has not raised an objection at the time of recording the plaintiffs evidence, the breach of the rule will not render the evidence of plaintiff a nullity as per decision in C. Sesha Reddy v. T. Basavana AIR 2003 Kar 335 . A permission to examine the plaintiff in deviation of rule is to be given for assignment of cogent reasons as per decision in Sanjay Narayanrao Barde and Another v. Sau. Vimal Keshaorao Bairam and Others AIR 2000 Bom 384 but the fact remains that the lower Court has examined the plaintiff (since deceased) as P.W.4 and no objection has been raised on behalf of the respondent/defendant at the time of the examination of the plaintiff (since deceased) as P. W.4. But, when the plaintiff has been examined as P. W.4, by implication, it is to be construed that the trial Court has impliedly permitted the plaintiff to be examined as P.W.4 and as such, the question that whether the Appellate Court is right in coming to the conclusion that the ingredients of Order 18 Rule 3 of the Civil Procedure Code are violated, is relegated to the background and in the considered opinion of this Court, this need not be gone into any further because of the simple fact that normally that even examination of other witnesses, a party may be examined to prevent an aberration of justice and to promote substantial cause of justice and accordingly, the substantial question of law 3 is so answered. 44. In regard to the finding of the First Appellate Court that the plaintiff (since deceased) has not prayed for alternate relief of refund of advance of Rs. 10,000/- as per Section 22 of the Specific Relief Act and that it has given liberty to the plaintiff (since deceased) to file a separate suit for the refund of advance of Rs. 10,000/- paid by him, this Court is of the considered opinion that the said view taken by the First Appellate Court is not correct keeping in tune with the well established principles of law. In case, a equitable remedy of specific performance is refused, then a Court of Law has wide powers to direct the Defendant to return the deposit of advance of Rs. In case, a equitable remedy of specific performance is refused, then a Court of Law has wide powers to direct the Defendant to return the deposit of advance of Rs. 10,000/- received by him from the plaintiff (since deceased) for which there is no need or necessity to file a separate suit and in this regard, the finding of the First Appellate Court is set aside by this Court in furtherance of substantial cause of justice. 45. In the result, the second appeal is dismissed leaving the parties to bear their own costs. 46. The relief of specific performance prayed for by the appellant/ plaintiff is rejected by this Court for the reasons assigned in this Appeal. It is not in dispute that as per Exhibit A-2 Sale Agreement dated 11.10.1989 entered into between the parties, that a sum of Rs. 5,000/- has been received in cash and also another sum of Rs. 5,000/- has been received through cheque, is made mention of in the Agreement and in all, a sum of Rs. 10,000/- has been paid and the balance of Rs. 1,06,600/- is to be paid within six months from the date of the Agreement (i.e.) 11.4.1990 by Azhargarsami (later deceased) to the respondent/defendant. Normally for a refund of advance, a Court of Law can award a simple interest to meet the ends of justice. However, in view of the peculiar facts of the present case, this Court directs the respondent/defendant to return the sum of Rs. 10,000/- being the advance received by him from the plaintiff (since deceased) to the appellants within a period of one month from the date of receipt of a copy of this judgment, failing which the respondent/defendant is directed to pay the interest at 6% per month till payment of the said sum of Rs. 10,000/-.