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2013 DIGILAW 2212 (RAJ)

Karan Singh v. Ram Lal

2013-12-06

ALOK SHARMA

body2013
Hon'ble SHARMA, J.—This defendant's first appeal under section 96 CPC has been filed against the judgment and decree dated 4.6.1993 passed by learned Addl. District Judge, Bayana District Bharatpur (hereinafter `the trial court') decreeing the plaintiff's suit for specific performance and permanent injunction. 2. The facts of the case are that the plaintiff-respondent (hereinafter `the plaintiff') Ram Lal filed a suit for specific performance on 14.2.1991 based on an agreement to sell stated to have been executed on 18.7.1989 in respect of agricultural lands ad-measuring 4 bigha 3 biswa (1 bigha 12 biswa in khasra No. 340; 1 bigha 4 biswa in Khasra No. 377 and 1 bigha 7 biswa in khasra No. 379) situate at Ataripur Tehsil Weir District Bharatpur (hereinafter `the suit land') of which the defendant appellant (hereinafter `the defendant') was the recorded khatedar. It was stated that the defendant had agreed to sell the suit land for a sum of Rs. 56,000/- of which Rs. 30,000/- was alleged to have been paid to the defendant on the same day and the remaining Rs. 26,000/- was payable before the Registrar at the time of execution of the sale deed to be executed within six months. The plaintiff stated that the agreement to sell dated 18.7.1989 had been scribed by one Kishan Jatav and transaction witnessed by one Supariya and another Sonya Mali. The plaintiff averred that he was continuously ready and willing to perform his part of the contract yet the defendant refused to abide by his obligations under the agreement to sell dated 18.7.1989. Oral reminders by the plaintiff being of no avail a registered notice was sent on 26.12.1990 requiring the defendant to execute a sale-deed in terms of the agreement to sell dated 18.7.1989. The registered notice was received by the defendant on 27.12.1990 who yet continued to be in breach. Consequently the suit for specific performance of agreement to sell dated 18.7.1989 was filed praying for a decree that the sale deed be executed in favour of the plaintiff, the possession of the suit land be handed over to him and that the defendant be directed not to thereafter interfere therewith. 3. On service of notice of the suit, the defendant filed a reply of denial. The execution of agreement to sell dated 18.7.1989 was specifically denied and the purported agreement was alleged to be forged. 3. On service of notice of the suit, the defendant filed a reply of denial. The execution of agreement to sell dated 18.7.1989 was specifically denied and the purported agreement was alleged to be forged. The defendant's case in-stead was that he had borrowed Rs. 10,000/- from the plaintiff in July 1989 on the guarantee of Sonya Mali and in respect of the said transaction the plaintiff Ram Lal had obtained his signatures on a Bahi and also on a blank stamp paper of Rs. 5/-. It was stated that thereafter when a sum of Rs. 9062/- was available with the defendant on 5.7.1990, he sought to partly discharge his liability towards the loan repayable to the plaintiff Ram Lal. But Sonya Mali had taken the said amount with an assurance to deliver the same to Ram Lal. Villagers Ajmat, Brijendra, Papiya etc. were witnesses to Sonya Mali being paid Rs. 9062/- by the defendant for and on behalf of the plaintiff. It was submitted that Sonya Mali however turned dishonest and in breach of faith, misappropriated the said amount to himself. Subsequently, the plaintiff and Sonya Mali had accosted the plaintiff in his house on or about 8.10.1990 and demanded the return of the whole of Rs. 10,000/- loan with interest from the defendant. The defendant was then forcibly taken to the plaintiff Ram Lal's house where he was tied up and beaten. According to the plaintiff subsequently a Panchayat was convened at the request of the defendant to resolve the dispute. Sonya Mali and the plaintiff Ram Lal absented themselves and were found guilty of wrong doing in the meeting of the Panchayat. The plaintiff also stated that two FIRs were lodged by him with regard to the incidents. A complaint was also lodged on 26.11.1990 for the offences under Sections 420, 406 and 120B IPC against the plaintiff and others. It was stated that aside of being forged, the agreement to sell dated 18.7.1989, was also under stamped and un-registered and therefore not admissible in evidence. In these circumstances it was prayed that the suit be dismissed. 4. A complaint was also lodged on 26.11.1990 for the offences under Sections 420, 406 and 120B IPC against the plaintiff and others. It was stated that aside of being forged, the agreement to sell dated 18.7.1989, was also under stamped and un-registered and therefore not admissible in evidence. In these circumstances it was prayed that the suit be dismissed. 4. From the pleadings of the parties the trial court framed four issues which are as under: ^^1- D;k izfroknh us oknh ls 10]000@- :i;k nl gtkj izkIr lksU;k ekyh dh tekur ij izkIr fd;s ftlds lEcU/k esa tqykbZ 89 esa 5@- :i;s ds dksjs LVkEi ij izfroknh ds txg txg gLrk{kj djok fy;s x;s\ 2- D;k vuqca/k fnukad 18-7-89 QthZ gksdj mfpr LVkEi ij ugha gS\ 3- D;k izfroknh oknh ls gtkZ [kkl ds 4]000@- :i;s oknh ls izkIr djus dk vf/kdkjh gS\ 4- vuqrks"k\ 5. The plaintiff in-support of his case exhibited five documents which were; a receipt as Ex.1, a copy of the notice dated 26.12.1990 as Ex. 2, a copy of the draft sale deed as Ex. 3, proof of receipt of notice by the defendant as Ex. 4 and copy of the khasras in issue as Ex. 5. The plaintiff examined himself as PW.1, Deed writer Kishna Jatav as PW.2 and the witnesses of the deed Sonya as PW.4 and another witness Supariya as PW.4. 6. The defendant on his part exhibited the agreement as Ex. D-1, copy of the FIR No. 91/90 as D-2, FIR No. 122/90 as D-3 and complaint as Ex. D-4. He examined himself as DW-1, Papaiya as DW-2, as DW-3 and Ajmat as DW.4. 7. On consideration of the matter the learned trial court only failed to frame issues as would be warranted in a suit for specific performance i.e. (1) whether the plaintiff and the defendant were ad-idem in executing the agreement to sell dated 18.7.1989 in respect of the suit land and (2) whether the plaintiff was at all times ready and willing to perform his obligations under the agreement to sell dated 18.7.1989. Instead the trial court framed issues as above in a manner in which the burden was not on the plaintiff at all but on the defendant. It then proceeded to decree the plaintiff's suit vide its judgment and decree dated 4.6.1993. Hence this first appeal. 8. Instead the trial court framed issues as above in a manner in which the burden was not on the plaintiff at all but on the defendant. It then proceeded to decree the plaintiff's suit vide its judgment and decree dated 4.6.1993. Hence this first appeal. 8. Counsel for the defendant has submitted that the judgment and decree dated 4.6.1993 passed by the trial Court be quashed and set aside on the ground that the approach of the trial Court to the suit before it was absolutely erroneous and prejudicial to the defendant. It was submitted that the CPC is a complete Code with regard to the manner of adjudication of civil disputes by the Civil Courts and the procedure to be adopted by them. In the present case no issue of fact relevant to the suit for specific performance was framed to determine two questions necessarily to be addressed namely; (1) whether the agreement to sell was executed between the parties being ad-idem and (2) whether the plaintiff was continuously ready and willing to perform his part of the contract. The plaintiff's evidence before the trial court on his readiness and willingness was devoid of any overt acts or any material with regard to his financial capacity to discharge his obligation under the alleged agreement to sell dated 18.7.1989. Further the trial court failed even to consider and arrive at any finding on the issue of the readiness and willingness of the plaintiff to perform his obligations under the agreement to sell dated 18.7.1989 continuously from the date of the purported agreement to sell till the date of hearing by the trial court. It has been submitted that on this count alone the judgment of the trial court is vitiated and liable to be quashed and set aside. 9. Counsel has further submitted that the Indian Evidence Act, 1872 (hereinafter `the Act of 1872') provides for the manner in which burden of proof is to be discharged in any trial before the courts. Section 101 of the Indian Evidence Act, 1872 lays the burden of proof- on whoever is desirous to obtain any judgment from a Court as to her legal rights dependent on the existence of the facts which are asserted and therefore has the duty to prove that the facts asserted existed. Section 101 of the Indian Evidence Act, 1872 lays the burden of proof- on whoever is desirous to obtain any judgment from a Court as to her legal rights dependent on the existence of the facts which are asserted and therefore has the duty to prove that the facts asserted existed. It has been submitted that in the present case the assertion of facts in the suit for specific performance was to be proved by the plaintiff but no burden of proof was placed on the plaintiff to prove the existence of the essential facts for a decree of specific performance. Contrarily the trial Court adopted a perverse approach and conducted itself as if the facts set up in the plaintiff's case were a given, the gospel truth and the defendant was from the very inception under an obligation to displace them. All the four issues therefore, framed before the trial court were framed in the manner where the burden of proof was on the defendant to disprove the plaintiff's case. It was submitted that the judgment and decree of the trial court is thus vitiated for known procedure having been turned on its head, the burden of proof having been wrongly placed and presumptions of fact drawn without legal sanctity and in-fact contrary thereto. And even then the trial court had failed to hold in its impugned judgment that the plaintiff was continuously ready and willing to perform his part of the contract for sale in issue. But yet shockingly decreed the plaintiff's suit. It was also submitted that the trial court's focus on the weakness of the defendant's case, as has been consistently held by the Hon'ble Supreme Court and this Court, was of a little avail to the success of plaintiff's suit. Reference has been made to the provisions of Sections 101, 102 and 103 of the Act of 1872 to contend that a bare reading of the judgment and the decree of the trial Court indicates that it is ex-facie vitiated by the illegal procedure adopted and overturning of the rules of evidence by the trial court which caused irreparable prejudice to the case of the defendant and resulted in gross injustice to him. 10. 10. Counsel has then submitted that from the evidence on record and the facts and circumstances as obtaining in the present case, the trial court ought to have held that the plaintiff was not ready and willing to perform his part of the contract under the terms of agreement to sell dated 18.7.1989. It has been submitted that the plaintiff had not been able to establish before the Court in the course of his evidence that he was in any manner either ready and willing to perform his part of the contract as per its terms. No finding has been arrived at by the trial court on the two important aspects statutorily mandated for decreeing a suit for specific performance. On the aspect of "willingness" under section 16(c) of the Specific Relief Act, 1963 it has been submitted that on the plaintiff's own case as per the agreement to sell dated 18.7.1989 the sale deed was to be executed within six months of the signing of the agreement. The said six months under the agreement to sell dated 18.7.1989 lapsed on 18.1.1990. It has been submitted that during this period of six months, even a notice was not issued nor the plaintiff required to execute the sale deed in any other manner. No overt act indicative of the plaintiff's willingness was adverted to. In fact no averments have been made in the plaint that the plaintiff had been continuously ready and willing to perform his part of the agreement dated 18.7.1989 on or before 18.1.1990 the terminal date under its terms. In fact the plaintiff's own admitted case was that the notice for execution of the sale deed under the agreement dated 18.7.1989 was first issued by him on 26.12.1990 i.e. after a delay of over 12 months from the terminal date aforesaid. This by itself counsel for the defendant submitted was a contraindication of the plaintiff's willingness to abide by an essential term of the agreement to sell dated 18.7.1989. It has been further submitted that albeit the suit was filed within limitation under the Act of 1963, the delay of over 1 year in its finding from the terminal date under the agreement was sufficient for equities central for the exercise of the Court's discretion under section 20 of the Act of 1963 titling against the plaintiff and in favour of the defendant. 11. 11. On the aspect of "readiness" as an ingredient of section 16(c) of the Act of 1963, it has been submitted that the plaintiff did not even establish and prove before the trial court from his evidence that he had the financial ability to pay the remainder Rs. 26,000/- under the agreement dated 18.7.1989 which amount was a substantial sum in the context of the years 1989-90 for a marginal agriculturalist belonging to the deprived section of society in a fairly backward district of the State of Rajasthan. 12. In support of aforesaid contentions reference has been made to the Judgment of Hon'ble Supreme Court in the case of N.P. Thirugnanam (D) by Lrs vs. Dr. R. Jagan Mohan Rao & Ors., AIR 1996 SC 116 , wherein the Hon'ble Supreme Court has held as under: "It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under Sec. 20 of the Specific Relief Act, 1963 (for short, `the Act'). Under Sec. 20, the court is not bound to grant the relief just because there was a valid agreement of sale. Section 16(c) of the Act envisages that plaintiff must plead and prove that he had 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 those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit alongwith other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit alongwith other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances." Further reference has been made to the Judgment of Hon'ble Supreme Court in the case of Coromandel Indag products Private limited vs. Garuda Chit & Trading Company private Limited & Anr. 2011(8) SCC 601 , wherein the Hon'ble Supreme Court has held that "the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction." 13. Counsel for the appellant has empathetically submitted that the learned trial court failed to properly exercise its jurisdiction under Section 20 of the Act of 1963 in decreeing the suit for specific performance without reference to the important attendant circumstances of the case. Assuming without admitting that the agreement to sell had been entered into, in the context of the defendant's poverty for money the condition that the sale was to be completed within six months was of the utmost signification. Time was thus ought to have been held to be of essence in the contract. Further the trial court also failed to consider the factum of criminal cases filed by the defendant against the plaintiff and facts therein restated in evidence by the defendant's witnesses even if negative final reports were filed thereon following investigation. The standards of proof in civil and criminal cases are distinct. It was further submitted that the trial court also also over looked the fact that DW-4 Ajmat Singh proved the calling of the Panchayat of the Village and holding of Ram Lal and Sonya Mali as guilty in their dispute with the defendant. The standards of proof in civil and criminal cases are distinct. It was further submitted that the trial court also also over looked the fact that DW-4 Ajmat Singh proved the calling of the Panchayat of the Village and holding of Ram Lal and Sonya Mali as guilty in their dispute with the defendant. Similarly the poverty and backwardness of the defendant vis-a-vis the plaintiff belonging to the numerically dominant and aggressive caste of the area should have been taken into account by the trial court, submitted counsel. It has been submitted that the evidence in this regard was brushed aside by the learned trial court without any cogent reason. The effect of Sonya Mali the plaintiff's witness in his cross examination admitting to the receipt of an amount of Rs. 9062/- from the defendant was also side stepped pointing as it did to the defendant's penury and incersant indebtedness. It was submitted that the FIR No. 91/1990 (Ex. D.2) and 122/1990 (Ex.D.3) as also the complaint (Ex. D.4) filed by the defendant was much prior to the plaintiff's notice on 26.12.1990 for executing a sale deed of the suit land under the alleged agreement to sell. Counsel submitted that the facts on record showed that there was a festering money dispute between the parties on a money transaction. It has been submitted that the circumstances aforesaid ought to have satisfied the trial court that the agreement to sell dated 18.7.1989 was at-least surrounded by very suspicious circumstances and ought thus not have been enforced. 14. Counsel for the defendant finally submitted that again assuming without admitting the purported agreement to sell dated 18.7.1989 was valid, on its specific terms themselves no decree of specific performance could have been passed against the defendant. The agreement to sell dated 18.7.1989 incorporated a condition where-under it was provided that in the event of non-execution of the sale deed by the defendant Vendor, the plaintiff Vendee would be entitled to the refund of Rs. 30,000/- with interest @ 2% p.a. thereon. It was submitted that the condition in the agreement to sell dated 18.7.1989 was or in any event ought to have been construed as in the nature of giving to the vendor therein an option of re-paying the money alongwith agreed interest in lieu of specific performance. 30,000/- with interest @ 2% p.a. thereon. It was submitted that the condition in the agreement to sell dated 18.7.1989 was or in any event ought to have been construed as in the nature of giving to the vendor therein an option of re-paying the money alongwith agreed interest in lieu of specific performance. The alleged agreement to sell thus could not be specifically enforced in view of section 10(a) & (b) of the Act of 1963 which provides that specific performance of any contract in the discretion of the Court can be enforced only when there exists no standard for ascertaining actual damages caused by non-performance of the act agreed to be done or when the act agreed to be done is such that compensation in money matters for its non-performance would not afford adequate relief with the condition of refund of the money with 2% interest thereon, the agreement itself determined the standard for ascertaining the actual damage that would be caused by the non-execution of the sale deed. Counsel submitted that in the obtaining facts the presumption under the explanation to Section 10 of the Act of 1963 that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money matters, stood rebutted. The suit before the trial court based on the agreement to sell dated 18.7.1989 should have been thus dismissed with reference to section 14(1)(a) of the Act of 1963 submitted counsel. Reference has also been made to the Judgment of the Hon'ble Supreme Court in the case of Man Kaur (Dead) by Lrs vs. Hartar Singh Sangha (2010) 10 SC 512 = 2010(4) RLW 3663 (SC) wherein the Hon'ble Supreme Court has held that `where the provision naming an amount to be paid in case of breach is intended to give to the party in default an option to pay money in lieu of specific performance, then specific performance may not be permissible.' Further reference has been made to the Judgment of Hon'ble the Supreme Court in the case of Dadarao & Anr. vs. Ramrao & Ors., 1999(8) SCC 416 wherein the Hon'ble Supreme Court has held that when "the parties to the agreement had agreed that even if the seller did not want to execute the sale deed he would only be required to refund the amount of Rs. 1,000 plus pay Rs. vs. Ramrao & Ors., 1999(8) SCC 416 wherein the Hon'ble Supreme Court has held that when "the parties to the agreement had agreed that even if the seller did not want to execute the sale deed he would only be required to refund the amount of Rs. 1,000 plus pay Rs. 500 in additional thereto" there would be no obligation to complete to complete the sale transaction. 15. Per contra counsel for the plaintiff has submitted that the non-framing of the issues correctly by the trial Court was of no import in view of the fact that the parties to the suit went to trial fully well knowing the issues involved and adduced their respective evidence thereon. It has been submitted that the defendant has not been able to establish any prejudice in the adjudication of the suit without the framing of proper issues relevant to a suit for specific performance. Thus even the objection with regard to the non-framing of proper issues including the issue of the readiness and willingness for performance of contract by the plaintiff in the discharge of his obligations under the agreement to sell dated 18.7.1989 was also of no consequences, submitted the plaintiffs counsel. In support of the contention, reliance has been placed on the Judgment of the Hon'ble Supreme Court Swamy Atmananda & Ors. vs. Sri Ram Krishna Tapovanam & Ors., 2005(10) SCC 51 wherein the Hon'ble Supreme Court has held that `if the parties went to the trial knowing fully well the real issues involved and adduced evidence in such a case, without establishing prejudice, it would not be open to a party to raise the question of non-framing of particular issues.' Further in Nedunuri Kameswaramma vs. Sampati Subba Rao ( AIR 1963 SC 884 ), it was observed that `no doubt, no issue was framed, and the one, which was framed, could have been more elaborate; but since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mis-trial which vitiates proceedings. We are, therefore, of opinion that the suit could not be dismissed on this narrow ground, and also that there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion." Counsel also submitted that the evidence of the parties to the suit before the trial court having been laid, even the burden of proof having been allegedly wrongly placed on the defendant was wholly immaterial. 16. Reliance has also been placed on the Judgment of the Hon'ble Court in the case of O.P. Verma vs. Lala Gehrilal & Anr., AIR 1962 (Rajasthan) 231 DB wherein a Division Bench of this Court has held that the question of burden of proof in a case would hardly be of no materiality where both parties lead their full evidence as then and the only question for the court to determine would be as to which of the two versions, namely, that put forward by the plaintiff, or the other one by the defendants, was correct. 17. Counsel has relying on Arinderjit Singh vs. North Star Estate Promoters Limited, 2012(5) SCC 712 submitted that the averment and proof of readiness and willingness to perform the contract on the part of a plaintiff is not to be determined in the context of any strait jacket formula but is to be determined in the light of the pleadings of the parties, evidence produced by them and the plaintiff's conduct deducible from the evidence before the trial court. Attention of the Court was drawn to the fact that the plaintiff had averred in para 3 of the plaint that he was at all times subsequent to the agreement to sale dated 18.7.1989 ready and willing to perform his part of the contract and the said averment has not been denied by the defendant in his written statement thereto. Counsel submitted that the defendant in-fact had denied the very existence of the agreement to sell dated 18.7.1989 itself and stated that consequently there was no question of the plaintiff being ready and willing to perform his obligation under such a non-existent contract. This counsel submits would entail a situation considered by this Court in the case of Gulam Mohd. vs. Mst. This counsel submits would entail a situation considered by this Court in the case of Gulam Mohd. vs. Mst. Mariyam, 1984 RLW 321, wherein it was held that if the agreement to sell denied by the defendant in a suit for specific performance is proved, then the readiness and willingness of the plaintiff to perform his part of the contract as averred in the plaint would stand established without anything more. It has been submitted that the agreement to sell dated 18.7.1989 in issue denied by the defendant was established by the unshaken evidence of the plaintiff himself, the deed writer Kishan Jatav vs. PW-2 and witnesses to the agreement i.e. Sonya Mali as PW-3 and Supariya as PW.4. On the contrary the defence proferred by the defendant was not supported by any documentary evidence such as the alleged proceedings of the Panchayat holding plaintiff Ram Lal and Soniya Mali as guilty of beating and oppressing the defendant to convey his land to the plaintiff. Counsel submitted that the learned trial court has also found contradictions in the evidence of the defence witnesses as also the falsity in the defendant's denial of his own signature on the agreement to sell dated 18.7.1989. According to counsel the rule of adjudication in civil case is that when there is a conflict of the oral evidence of the parties on any matter in issue and the decision hinges on the credibility of the witnesses then unless some special feature about the evidence of a particular witness has escaped the notice of the trial judge or there is otherwise sufficient reason to displace the opinion of the trial judge as to where the credibility lies, the appellate court should not interfere with the findings of the trial court on a question of fact. It has been submitted that to up-set the finding of fact of the trial court the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasoning for arriving at a different conclusion. 18. Counsel has further submitted that the ordinary rule is that specific performance should be granted and ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute adequate relief. 18. Counsel has further submitted that the ordinary rule is that specific performance should be granted and ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute adequate relief. He further submitted that the discretion of the courts under Section 20 of the Act of 1963 ought to be exercised against the party which breaks its solemn undertaking as the defendant has in this case. The mere fact that the rates of land since the agreement to sell dated 18.7.1989 have or may have increased substantially implying by itself hardship to the defendant under Section 20(2) of the Act of 1963 would be a relevant factor only when the defendant takes the defence of hardship and brings on record the evidence in support of such a plea. For this reference has been made to the Judgment of the Hon'ble Supreme Court in the case of Prakash Chandra vs. Narayan, 2012(5) SCC 403 . 19. It has been finally submitted that the issue of belated filing of suit for specific performance after about 20 months of the agreement to sell dated 18.7.1989 and no action for performance taken by the plaintiff within six months contrary to its conditions ought not to be considered by this Court as the said issue was not raised before the trial court. It has been submitted that the agreement to sell dated 18.7.1989 having been proved in the Court by the plaintiff by producing copy book evidence, the Judgment and decree of the trial Court has been rightly passed. And this civil first regular appeal should be dismissed. 20. Heard the counsel for the parties and perused the impugned judgment and decree dated 4.6.1993. 21. At the outset it would be in order to note the peculiarities of the impugned judgment and decree, inasmuch as a decree for specific performance has been passed without the framing of an issue with regard to readiness and willingness of the plaintiff to perform his part of contract. Oddly even the purported agreement to sell dated 18.7.1989 was not exhibited by the plaintiff, albeit the entire suit was laid on the basis thereof and it was averred in the plaint that the said agreement to sell was in the plaintiff's custody and was being submitted with the plaint. Oddly even the purported agreement to sell dated 18.7.1989 was not exhibited by the plaintiff, albeit the entire suit was laid on the basis thereof and it was averred in the plaint that the said agreement to sell was in the plaintiff's custody and was being submitted with the plaint. The case file of the trial court and the impugned judgment however confoundingly ascribe the agreement to sell dated 18.7.1989 as having been exhibited by the defendant in spite of his denial of such an agreement even being executed by him and if existing a mere result of a forgery by the plaintiff and his in pocket witnesses and scribe. Further the record of the trial court indicates that the defendant had only filed three documents and not four. Yet the filing of the agreement to sell dated 18.7.1989 was surprisingly attributed to him and marked as Ex. D.1. Suspicious being the circumstances, this Court has carefully evaluated the agreement in issue with a naked eye. A bare look at the agreement to sell dated 18.7.1989 on record of the trial court's file indicates that signatures attributed to defendant do not match his signatures as appended on the written statement, vakalat nama, complaint (Ex.D.4), FIR (Ex.D.3) and his signature on his deposition before the trial court as DW.1 A comparison of the defendant's signature on the purported agreement to sell dated 18.7.1989 on the one hand and his signatures on the other documents referred to above, on the other, shows that they are different in their flow, curves in the making of the letters of the Hindi alphabet as also in the drawing of lines required in words of Hindi language. The signatures attributed to the defendant on the alleged agreement to sell dated 18.7.1989 are strained and palpably appear to be an outcome of careful effort, yet unsure. The defendant's signatures on the other documents referred to above are all free flowing, consistent and casual, with a characterization a signature partakes by reason of habit. To my mind the signatures of the defendant on the alleged agreement to sell appears to be a forgery. 22. This finding by itself would entail the defendant's appeal being allowed. However, as the matter was also argued on other aspects and heard at length, it would be desirable to address the other issues agitated too. 23. To my mind the signatures of the defendant on the alleged agreement to sell appears to be a forgery. 22. This finding by itself would entail the defendant's appeal being allowed. However, as the matter was also argued on other aspects and heard at length, it would be desirable to address the other issues agitated too. 23. It is also of seminal importance that the trial court also failed to frame the requisite issues in the suit for specific performance in the right perspective i.e. as to (i) whether the agreement to sell dated 18.7.1989 had been entered into between the plaintiff and the defendant and (ii) whether the plaintiff had been ready and willing to perform his part of the contract at all material times. The trial court instead foisted on the defendant the obligation to disprove the case for specific performance set up by the plaintiff in framing four issues, with burden to the defendant's count on all issues. Further even the evidence of defendant was first taken by the trial court between 20.2.1993 and 20.4.1993, whereas plaintiff's evidence was subsequently taken on record beginning 21.5.1993. In my considered opinion the manner in which the trial court proceeded in adjudicating the suit for specific performance laid before it by the plaintiff respondent was shockingly deviant of all known procedures of the Code of Civil Procedure and sections 101-104 of the Evidence Act, 1872. Consequently the defence of the defendant appellant was damaged and prejudiced beyond repair. The Hon'ble Supreme Court in the case of Manohar Lal vs. Maya (2003) 9 SCC 478 has stated that where suspicious circumstances arise in a suit for specific performance a decree for specific performance ought not to be granted, inasmuch as such decrees are fundamentally based on the judicial discretion with reference to Section 20 of the Specific Relief Act,1963 (hereinafter `the Act of 1963'). 24. Aside of above a bare look at the agreement to sell dated 18.8.1989 indicates that the registered sale deed in pursuance thereof was to be got executed within six months of the agreement. From the admitted facts of the case, notice with regard to the agreement to sell dated 18.7.1989 and its performance come to be issued on behalf of the plaintiff only on 26.12.1990, i.e. after a period of over about 17 months from the agreement to sell dated 18.7.1989. From the admitted facts of the case, notice with regard to the agreement to sell dated 18.7.1989 and its performance come to be issued on behalf of the plaintiff only on 26.12.1990, i.e. after a period of over about 17 months from the agreement to sell dated 18.7.1989. It is not in dispute that the defendant appellant is a person of poor means regularly in debt as per evidence on record and the agreement to sell dated 18.7.1989 if at all made must have been occasioned by his strained financial circumstances. In such a situation the covenant in the agreement to sell dated 18.7.1989 for execution of the sale deed within six months attains great significance. The Hon'ble Supreme Court in case of K.S. Vidyanadam vs. Vairavan (1997) 3 SCC 1 ) has held that delay in the execution of a sale deed in given situations can lead to inequity and a suit for specific performance in such situations even if filed within the period of limitation can be dismissed. Similarly in the case of Saradamani Kandappan vs. S. Rajalakshmi (2011) 12 SCC 18 )the Hon'ble Supreme Court has held that the period fixed in the contract can be construed as time being essence of the contract and inaction within the covenanted time period can result in the suit failing. In the case of Ardeshir H. Mama vs. Flora Sasson (1928) 30 BOMLR 1242) (AIR 1928 PC 208) it was held by the Privy Council that non performance of the contract by any of the party within the time set out in the agreement to sell would even otherwise be indicative of the lack of readiness and willingness of the party concerned to perform his obligation under the agreement to sell as per its terms. Further, in the case of J.P. Builders vs. A. Ramadas Rao (2011) 1 SCC 429 ) the Hon'ble Supreme Court has referred to the statutory provisions of Section 16(c) of the Act of 1963 pertaining to readiness and willingness to perform the contract. It has been held that the word "readiness" refers to financial capacity-readiness to make requisite payment as per contract - to the vendee and "willingness" pertains to the vendee's conduct to perform his part of the contract commencing the signing of the agreement to sell and continuing till the conclusion of the hearing before the court. 25. It has been held that the word "readiness" refers to financial capacity-readiness to make requisite payment as per contract - to the vendee and "willingness" pertains to the vendee's conduct to perform his part of the contract commencing the signing of the agreement to sell and continuing till the conclusion of the hearing before the court. 25. In the facts of the present appeal except for the bald statement of the readiness and willingness made in his deposition before the trial court, the plaintiff did not prove any serious overt act on his part in any event within six months of the agreement to establish the crucial aspect of "readiness and willingness". No stamp papers were purchased for the execution of the sale deed. No evidence was produced before the trial court to show that the plaintiff had access to funds of Rs. 26,000/- for the remainder payment under the alleged agreement to sell dated 18.7.1989 to discharge his obligation to pay to vendee within six months of the agreement to sell in issue. Cumulatively the aforesaid pieces of evidence, fact and circumstances inexorably lead to the conclusion that the plaintiff had failed to prove and establish before the trial Court his readiness and willingness to perform his part of the alleged agreement to sell dated 18.7.1989. The trial court blithely did not even address the fundamental question of readiness and willingness as no issue in that regard was framed, no evidence thereon considered. Obviously no conclusions on the issue were also arrived at. 26. I do not find any force in the arguments of the learned counsel for the plaintiff that the failure of the trial court to frame proper issues, even an issue pertaining to the readiness and willingness of the plaintiff in a suit for specific performance in terms of the agreement to sell is of no effect when parties had gone to trial knowing fully well the real issue involved and adduced evidence in respect thereof. The Hon'ble Supreme Court in the case of Alka Gupta vs. Narendra Kumar Gupta (2010) 10 SCC 141 = 2011(1) RLW 751 (SC)) has held that a civil suit has to be decided after framing issues and trial after permitting parties to lead evidence on issues, except in cases where the Code of Civil Procedure or any other law makes an exception or provides an exemption. In A Shanmugam vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam (2012) 6 SCC 430 ) the Hon'ble Apex Court has held that "framing of issues is a very important stage in a civil trial" as careful framing of issues helps in proper examination of witnesses and final arguments in the case. It is trite that a decree for specific performance cannot be passed without the mandatory requirements of Section 16(c) of the Act of 1963 having been satisfied by way of pleadings, issues framed thereon and evidence in regard thereto before the trial court. In case of Inderchand Jain vs. Motilal (2009) 14 SCC 663 ) and Man Kaur vs. Hartar Singh Sangha (2010) 10 SCC 512 = 2010(4) RLW 3663 (SC)) the Hon'ble Supreme Court has held that readiness and willingness of a vendee under an agreement to sale must be established with reference to his obligations under the terms of the contract before a decree for specific performance can be passed. Such a situation does not obtain in the case under consideration in the present appeal. 27. In my considered opinion the judgment and decree of the trial court passed on 4.6.1993 is thus vitiated for a variety of reasons: that the trial court completely misdirected itself in the suit before it in not only failing to frame the fundamental issue of readiness and willingness of plaintiff respondent to discharge his obligation under the purported agreement to sell dated 18.7.1989; for the reason of turning procedure and law of evidence on its head and wrongly putting the burden of proof on the defendant appellant to disprove the agreement to sell dated 18.7.1989 and also to establish that plaintiff respondent was not ready and willing to perform his obligation thereunder; shockingly, the trial court even proceeded to first record the evidence of the defendant, and only thereafter plaintiff's evidence in the grossest unprecedented contravention of Sections 101-104 of the Evidence Act which inter alia detail the primordial principle of the law of evidence that the burden of proof lies on one who asserts a fact and would fail in the event of leading no evidence thereon to prove it. The trial court proceeded to try the suit for specific performance before it on its ipse dixit and in a peculiar manner as if both the agreement to sell dated 18.7.1989 and the readiness and willingness of the plaintiff respondent in respect of his obligation were a given and it was for the defendant appellant to disprove the two aspects even without specific issues as warranted in law in regard thereto being framed. The gross error of the trial court on the issue of burden of proof does not remain just a matter of form but partakes of a fundamental and legal error prejudicing the very defence of the defendant appellant. Thus to again reiterate in the present case a decree for specific performance has been passed by the trial court even without the plaintiff exhibiting as his document the purported agreement to sell dated 18.7.1989, acting contrary to its mandate of a sale deed being required to be executed within six months and without further proving and establishing his readiness and willingness to perform his obligation under the terms of the agreement dated 18.7.1989 on the test laid down by the Hon'ble Apex Court in the case of J.P. Builders (supra). 28. Finally a decree for specific performance under Section 20 of the Act of 1963 is at the end of the day discretionary. In the facts of the instant appeal, aside of lacunae in the plaintiff's suit detailed herein above, I am of the considered view that the discretion of the trial court if at all in the facts of the case under Section 20 of the Act of 1963 could not have been exercised in favour of the plaintiff. 29. Consequently, for all the reasons detailed herein above, the impugned judgment and decree dated 4.6.1993 passed by the trial court is set aside and the suit for specific performance as laid by the plaintiff is dismissed. Decree be accordingly drawn.