Sanjeev Sonkar vs Sunil Kumar and Others

The instant second appeal under Section 100 CPC has been filed against the judgment and decree dated 15.09.2025 passed by Additional District & Sessions Judge/ Special Judge, P.C. Act, Court No.8, Lucknow in Regular Civil Appeal No.118 of 2019, preferred against the judgment and decree dated 20.02.2019 passed by Civil Judge, Malihabad (S.D.), Lucknow in R.S. No.1369 of 2016.

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Learned counsel for the appellant submits that the plaintiff-appellant had filed a suit for specific performance of a contract dated 03.08.2010 executed by Chandrika, the sole defendant, who died during the pendency of the suit, in respect of agricultural land Khasra No.313/3, area 0.583 hectare situated at Village Goyla, Pargana Mahona, Tehsil Bakshi Ka Talab, Lucknow, for a sum of Rs.8,00,000/-. The said agreement to sell was duly registered on 26.08.2010. The plaintiff-appellant had paid Rs.2,00,000/- as earnest money at the time of execution of agreement to sell, Late Chandrika, which was executed by him before the SubRegistrar. The payment of Rs.2,00,000/- as earnest money is mentioned in recitals of the agreement to sell itself in paragraph one.

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He next submits that the plaintiff-appellant was always ready and willing to pay the balance amount agreed as sale consideration before the vendor but the learned court of first instance dismissed the suit of the plaintiff ex-parte and drew a wrong inference that as the plaintiff had not

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SAPL No. 209 of 2025

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paid the deficient court fee in spite of the order of the court, it cannot be held that he was ready and willing to pay the balance of sale consideration. In view of the deficiency in court fee, suit was earlier registered in the year 2013 as a miscellaneous case and after payment of the deficient court fee, it was registered as Original Suit No.1369 of 2016 after the payment of court fees by the plaintiff. The defendantsrespondents themselves were absent during the hearing of the suit against filed application under Order IX, Rule 7 C.P.C. to set aside the ex-parte order and provide opportunity to participate in the hearing. The said order had attained finality, as no appeal or revision was filed against the dismissal of the special appeal by the court of first instance.

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He next submits that the findings made by the learned court below and affirmed by the appellate court are not sustainable and the same is contrary to the law. The trial court had dismissed the suit for relief sought in the plaint and granted an alternative relief of repayment of furnished money with interest, whereas there was no such prayer in the plaint.

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The appeal is admitted on the following substantial questions of law:-

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Whether the findings recorded by the trial court and affirmed by the appellate court in regard to the issue of readiness and willingness of the plaintiff-appellant to pay the balance amount of sale consideration and get the sale deed executed is perverse and against the weight of the evidence adduced the evidence appearing on record, which requires reappraisal of evidence in second appeal?

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Whether the first appellate court has incorrectly interpreted Section 16(c) of the Specific Relief Act, 1963, which lays down an exception to the specific performance of contract?

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Whether the learned courts below have committed illegality in holding that the plaintiff-appellant had no sufficient funds to pay the balance of sale consideration for getting the sale deed executed by the defendant (since deceased) during the pendency of the suit?

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