Andhra Pradesh High Court – Amravati
Pulipati Naga Venkata Krishna Rao vs Shafathunnisa on 28 July, 2025
APHC010186852023
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI
MONDAY,THE TWENTY EIGHTH DAY OF JULY
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
SECOND APPEAL NO: 178 OF 2023
Between:
1. PULIPATI NAGA VENKATA KRISHNA RAO, S/o Subba Rao, Aged about
48 years Occ. Business, R/o. Kothapet, Vijayawada (Presently, residing at
D.No.1-3-23/13 Cement Road, Vidyadharapuram, Vijayawada NTR District,
Andhra Pradesh - 520 012)
...Petitioner
AND
1. SHAFATHUNNISA, W/o late Shaik Bailim Aged about 70 years,
Occ.Housewife Rio. D.No.30-1-92, Vidyadharapuram, Vijayawada,NTR
District, Andhra Pradesh - 520 012 (Presently R/o D.No.1-1/7-32, Old
Mosque Street Kummaripalem Centre, Vidyadharapuram, Vijayawada,NTR
District, Andhra Pradesh-520012)
...Respondent
Appeal under section ___________ against orderspleased to set aside
the Judgment and Decree passed in A.S No.7 of 2013, dated 01-03-2023 on
the file of Court of the II Additional District Judge, Vijayawada, and pass
IA NO: 1 OF 2023
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
pleased to suspend the Judgment and Decree passed in A.S No.7 of 2013,
dated 01-03-2023, on the file of the Court of the II Additional District Judge,
Vijayawada, by further directing the respondent to not to create any third party
interest(s) either by way of sale, mortgage, pledge etc., whatsoever in nature
and pass
Counsel for the Petitioner: VENKATESWARLU GADIPUDI
Counsel for the Respondent SODUM ANVESHA
The Court made the following order:
Judgment:
This second appeal under Section 100 of the Code of Civil Procedure
("C.P.C." for short) is filed aggrieved against the Judgment and decree, dated
01.03.2023 in A.S.No.7 of 2013, on the file of the II Additional District Judge,
Vijayawada ("First Appellant Court" for short), reversing the Judgment and
decree, dated 31.10.2012 in O.S.No.385 of 1998, on the file of III Additional
Senior Civil Judge, Vijayawada ("Trial Court" for short).
2. The appellant herein is the plaintiff and the respondent herein is the
defendant in the suit in O.S.No.385 of 1998.
3. The plaintiff initiated action in O.S.No.385 of 1998 before the trial
Court with a prayer for specific performance of the agreement of sale, dated
06.06.1996, directing the defendant to execute the registered sale deed in
favour of the plaintiff and to deliver the vacant possession and for granting of
permanent injunction restraining the defendant from alienating the plaint
schedule property in any manner and for costs of the suit.
4. The learned trial Judge decreed the suit with costs. Felt aggrieved of
the same, the unsuccessful defendant in the above said suit filed A.S.No.7 of
2013 before the First Appellate Court. The learned First Appellate Judge
allowed the appeal by setting aside the decree and judgment of the Trial
Court. Aggrieved thereby, the unsuccessful plaintiff approached this Court by
way of second appeal.
5. For the sake of convenience, both parties in the appeal will be
referred to as they are arrayed in the original suit.
6. The case of the plaintiff, in brief, as set out in the plaint averments in
O.S.No.385 of 1998, is as follows:
The defendant is the absolute owner of the plaint schedule property.
She sold away an extent of 2000 sq. yards of vacant site out of Ac.1-00 cents
of land for a total consideration of Rs.2,00,000/- and executed a suit
agreement of sale, dated 06.06.1996. The plaintiff paid an amount of
Rs.50,000/- towards advance sale consideration under the suit agreement of
sale and as per the recitals of agreement of sale, the defendant has to obtain
certified copy of the final decree passed on 09.04.1996 after engrossing the
same on N.J. stamp papers and to get Urban Land Ceiling permission on or
before 05.12.1996 for the purpose of registration of sale deed in favour of the
plaintiff or in the name of his nominee. The recitals of sale agreement reveals
that in case the defendant is not ready with necessary permissions and
documents within the above period, she has to pay interest at 24% per annum
on the advance amount till the date of registration. Likewise, the plaintiff is
also liable to pay interest at the same rate on the balance sale consideration,
if he is not ready to obtain sale deed even though the defendant is ready to
execute and register the sale deed. The plaintiff on 24.09.1997 paid another
sum of Rs.50,000/- out of the balance sale consideration of Rs.1,50,000/- and
the defendant agreed to obtain copy of the final decree passed in I.A.No.2405
of 1996 in O.S.No.190 of 1990, dated 09.04.1996, the Urban Land Ceiling
permission and the Encumbrance Certificate and to execute a registered sale
deed in favour of the plaintiff or in favour of his nominee within three months
from that date as she failed to obtain copy of the final decree from the Court
by that date in view of non cooperation by all the parties in the said suit in
depositing the Non Judicial Papers. To that effect, an endorsement was made
on the reverse of the agreement of sale, dated 24.09.1997, subsequent to that
the defendant failed to get other documents except the copy of final decree
within the stipulated time. The defendant on 17.11.1997 delivered Photostat
copy of the certified copy of the final decree to the plaintiff and again received
another sum of Rs.50,000/- out of the balance sale consideration of
Rs.1,00,000/- due by that date and further agreed to secure Urban Land
Ceiling permission and other necessary documents and to execute a
registered sale deed in favour of the plaintiff within four months from that date.
On reverse of the agreement of sale, an endorsement to that effect on
17.11.1997 was made. The plaintiff further pleaded that in spite of repeated
demands made by the plaintiff, the defendant failed to obtain permission from
the Urban Land Ceiling Authority and so also Encumbrance Certificate from
the concerned Sub-Registrar and ultimately postponed the execution of sale
deed from time to time. The plaintiff is always ready and willing to obtain the
sale deed in his favour or in favour of his nominee by paying the balance sale
consideration of Rs.50,000/- and it is the defendant who has been postponing
the execution of registered sale deed from time to time as per the terms of
agreement and also conditions laid down in the endorsements. The plaintiff is
ready and willing to perform his part of contract by paying the balance sale
consideration of Rs.50,000/- and the defendant has no manner of right to sell
away the plaint schedule property to third parties suppressing the suit
agreement. The defendant with a malafide intention to cause wrongful loss to
the plaintiff is trying to sell away the plaint schedule property for higher
amount. Having noticed the same, the plaintiff made a paper publication in
Eenadu on 13.09.1998 informing about the existence of suit agreement of sale
executed by the defendant in his favour and requested the prospective
purchasers not to enter into contract with the defendant. But, to the surprise
of the plaintiff, it came to know that on 11.09.1998 the defendant suppressing
the existence of sale agreement, dated 06.06.1996 and the paper publication,
dated 13.09.1998 with a dishonest intention to cause wrongful loss to the
plaintiff, entered into an agreement of sale with one Tirupataiah and others
agreeing to sell an extent of Ac.0-50 cents of land including the plaint
schedule property and filed an application before the Special Officer to obtain
Urban Land Ceiling permission under Section 26 of Urban Land Ceiling
Regulation, 1976 on 15.09.1998 and seriously trying to get permission to get
the land registered in favour of the purchasers and that the plaintiff is
constrained to file the suit.
7. The defendant filed written statement before the trial Court by
denying the averments in the plaint. The brief averments in the written
statement are as follows:
She never agreed to sell the plaint schedule property to the plaintiff and
she did not execute the said agreement of sale. The suit agreement of sale is
a rank forgery and was brought into existence by the plaintiff with the
assistance of attestors and scribe along with one B.V.N. Murthy. The
defendant did not receive the total amount of Rs.1,50,000/- as stated in the
plaint and she did not execute Ex.A.1 and also did not make any
endorsements on the suit agreement of sale. The defendant could know about
the evil design of the plaintiff on 18.09.1998 only and as such the defendant
got another publication made in reply to plaintiff's publication on 19.09.1998.
The plaintiff had no capacity to pay Rs.1,50,000/- to the defendant. The value
of the plaint schedule property might be Rs.10,00,000/- and as such the
question of selling the same for Rs.2,00,000/- does not arise. The plaint
schedule property is an agricultural land and not a vacant land as defined
under Urban Land Ceiling Authority.
8. On the basis of above pleadings, the learned trial Judge framed the
following issues for trial:
(1) Whether the agreement of sale, dated 06.06.1996 is true,
valid, supported by consideration and binding on the
defendant?
(2) Whether the plaintiff is entitled for specific performance of
the agreement of sale, dated 06.06.1996?
(3) Whether the plaintiff is entitled for permanent injunction as
prayed for?
(4) To what relief?
9. During the course of trial in the trial Court, on behalf of the plaintiff,
P.W.1 to P.W.3 were examined and Ex.A.1 to Ex.A.13 were marked. On
behalf of the defendant, D.W.1 was examined and Ex.B.1 and Ex.B.2 were
marked.
10. The learned trial Judge after conclusion of trial, on hearing the
arguments of both sides and on consideration of oral and documentary
evidence on record, decreed the suit with costs. Felt aggrieved thereby, the
unsuccessful defendant in the above said suit filed A.S.No.7 of 2013 before
the First Appellate Court, wherein, the following point came up for
consideration:
Whether the decree and judgment, dated 31.10.2012 passed by
the trial Court in O.S.No.385 of 1998 warrants any interference in
this appeal?
11. The learned First Appellate Judge after hearing the arguments,
answered the points, as above, against the plaintiff and allowed the appeal
filed by the defendant by setting aside the decree and judgment of the Trial
Court. Felt aggrieved of the same, the unsuccessful plaintiff in O.S.No.385 of
1998 filed the present second appeal before this Court.
12. On hearing both sides counsel at the time of admission of the
second appeal on 01.04.2023, this Court framed the following substantial
questions of law:
(1) Whether in a suit for specific performance a notice earlier
to the institution of the suit is mandatory and failure to give
notice should lead to denial of relief in specific performance?
(2) Whether the learned First Appellate Court failed to consider
relevant material evidence and considered only part of the
evidence and thereby conclusions reached by it are perverse?
On hearing both sides counsel on 24.04.2025, the following additional
substantial question of law has been framed:
Whether the First Appellate Court is justified in making out a
new case stating that the plaintiff is not ready and willing to
perform his part of the contract, though from the beginning
the same is not the case of the defendant, and the defendant
has not even averred to that extent in the written statement?
13. Heard Sri Ghanta Rama Rao, learned Senior Counsel, appearing on
behalf of Sri Venkateswarlu Gadipudi, learned counsel for the appellant and
Sri P. Veera Reddy, learned Senior Counsel appearing on behalf of Smt.
Sodum Anvesha, learned counsel for the respondent.
14. Law is well settled that under Section 100 of CPC the High Court
cannot interfere with the findings of fact arrived at by the First Appellate Court
which is the final Court of facts except in such cases where such findings were
erroneous being contrary to the mandatory provisions of law, or its settled
position on the basis of the pronouncement made by the Apex Court or based
upon inadmissible evidence or without evidence.
In a case of Bhagwan Sharma v. Bani Ghosh1, the Apex Court held
as follows:
1
AIR 1993 SC 398
"The High Court was certainly entitled to go into the question as to
whether the findings of fact recorded by the First Appellate Court which
was the final Court of fact were vitiated in the eye of law on account of
non-consideration of admissible evidence of vital nature."
In a case of Kondira Dagadu Kadam vs. Savitribai Sopan Gujar2, the
Apex Court held as follows:
"The High Court cannot substitute its opinion for the opinion of the First
Appellate Court unless it is found that the conclusions drawn by the
lower appellate Court were erroneous being contrary to the mandatory
provisions of law applicable or its settled position on the basis of
pronouncements made by the Apex Court, or was based upon
inadmissible evidence or arrived at without evidence."
15. The learned Senior Counsel on behalf of the respondent/defendant
would contend that Ex.A.1 agreement of sale is not at all proved by the
plaintiff. He contended that though there was another attestor to Ex.A.1
agreement of sale, he was not examined as a witness by the plaintiff to prove
Ex.A.1 agreement of sale. The plaintiff relied on the evidence of P.W.1 to
P.W.3. P.W.1 is the plaintiff, P.W.2 is the scribe of Ex.A.1 agreement of sale
and P.W.3 is one of the attestors in Ex.A.1 agreement of sale. The defendant
clearly admitted in her evidence in cross examination that she has no disputes
with P.W.3. Though Ex.A.1 agreement of sale was sent to the expert, expert
report is not at all marked as exhibit and the said expert is not examined as a
witness. Both the Courts below arrived a concurrent finding that the expert
evidence cannot be taken into consideration. By giving cogent reasons, on
appreciation of the entire evidence on record, the learned trial Judge held that
Ex.A.1 agreement of sale is proved and on re-appreciation of the entire
evidence on record, the learned First Appellate Judge also held that Ex.A.1
agreement of sale is genuine one that was executed by the defendant in
favour of the plaintiff. Both the Courts below decided the factual aspects and
2
AIR 1999 SC 471
arrived a conclusion that Ex.A.1 agreement of sale is genuine one and
executed by the defendant in favour of the plaintiff. The factual aspects that
were decided by both the Courts below cannot be equated with substantial
question of law.
16. The learned Senior Counsel for the respondent/defendant would
contend that though the plaintiff is not ready and willing to perform his part of
contract and no issue was framed by the learned trial Judge on the said
aspect of readiness and willingness of the plaintiff and the learned Senior
Counsel also placed a reliance of U.N. Krishnamurthy (since deceased)
through Lrs. vs. A.M. Krishnamurthy 3 , wherein the Apex Court held as
follows:
"It is settled law that for relief of specific performance, the Plaintiff has to
prove that all along and till the final decision of the suit, he was ready
and willing to perform his part of the contract. It is the bounden duty of
the Plaintiff to prove his readiness and willingness by adducing evidence.
This crucial facet has to be determined by considering all circumstances
including availability of funds and mere statement or averment in plaint of
readiness and willingness, would not suffice."
In the aforesaid case law, the Apex Court further held as follows:
"It is, therefore, patently clear that the Respondent Plaintiff has failed to
prove his readiness to perform his part of contract from the date of
execution of the agreement till date of decree, which is a condition
precedent for grant of relief of specific performance."
The learned Senor Court for the respondent placed another reliance of
V.S. Ramakrishnan vs. P.M. Muhammed Ali4, wherein the Apex Court held
as follows:
3
2022 SCC OnLine SC 840
4
2022 SCC OnLine SC 1545
"Now the findings and the reasoning given by the learned Trial Court
refusing to pass a decree for specific performance is concerned it
appears that though there was no specific issue framed by the learned
Trial Court on readiness and willingness on the part of the plaintiff, the
Trial Court has given the findings on the same and has non-suited the
plaintiff by observing that the plaintiff was not having sufficient funds to
make the full balance consideration on or before 12.01.2006. Such a
finding could not have been given by the learned Trial Court without
putting the plaintiff to notice and without framing a specific issue on the
readiness and willingness on the part of the plaintiff. There must be a
specific issue framed on readiness and willingness on the part of the
plaintiff in a suit for specific performance and before giving any specific
finding, the parties must be put to notice. The object and purpose of
framing the issue is so that the parties to the suit can lead the specific
evidence on the same."
The learned Senor Court for the respondent also placed another
reliance of Shenbagam and others vs. KK Rathinavel5, wherein the Apex
Court held as follows:
"No issue on readiness and willingness was framed by the trial court.
The trial court analysed the notice issued by the appellants and held that
the appellants made no demand from the respondent to discharge the
mortgage liability. Thus, the appellants‟ plea that the respondent-plaintiff
had to pay the loan and only thereafter, could the appellants execute the
sale deed was rejected. The court also accepted the respondent's
argument that the advance amount of Rs. 10,000 was paid to discharge
the mortgage. Further, the trial court observed that the documents
submitted by the respondent indicate that he had sufficient means to
purchase the suit property. The judgment of the trial court was upheld by
the first appellate court and, in a second appeal, by the High Court."
In the aforesaid case law, the Apex Court further held as follows:
5
2022 SCC OnLine SC 71
"All the three courts, including the High Court, grossly erred in the
manner in which they have adjudicated upon this dispute in a suit for
specific performance. In the first instance, the trial court failed to frame
an issue on whether the respondent-plaintiff was ready and willing to
perform his obligations under the contract and instead assessed whether
he is entitled to the relief of specific performance. In doing so, the trial
court viewed the legal issue from an incorrect lens. The foundation of a
suit for specific performance lies in ascertaining whether the plaintiff has
come to the court with clean hands and has, through his conduct,
demonstrated that he has always been willing to perform the contract.
There is a conspicuous absence in judgment of the trial court of any
reference to evidence led by the respondent to indicate his willingness to
perform the contract."
The learned Senor Court for the respondent also placed another
reliance of P. Ravindranath and another vs. Sasikala and others6, wherein
the Apex Court held as follows:
"Relief of specific performance of contract is a discretionary relief. As
such, the Courts while exercising power to grant specific performance of
contract, need to be extra careful and cautious in dealing with the
pleadings and the evidence in particular led by the plaintiffs. The
plaintiffs have to stand on their own legs to establish that they have
made out case for grant of relief of specific performance of contract. The
Act, 1963 provides certain checks and balances which must be fulfilled
and established by the plaintiffs before they can become entitled for such
a relief. The pleadings in a suit for specific performance have to be very
direct, specific and accurate. A suit for specific performance based on
bald and vague pleadings must necessarily be rejected. Section 16(C) of
the 1963 Act requires readiness and willingness to be pleaded and
proved by the plaintiff in a suit for specific performance of contract."
6
2024 SCC OnLine SC 1749
In the case on hand, the plaintiff pleaded in the plaint and also deposed
in his evidence that though he has always ready and willing to perform his part
of contract, the defendant is not willing to fulfill her contractual obligations. The
defendant specifically pleaded in para No.2 of the written statement itself that
since the agreement of sale and the alleged payment of Rs.1,50,000/- is false,
therefore, the plaintiff's readiness to pay Rs.50,000/- to the defendant does
not arise. The defendant is not even denied the pleadings of readiness and
willingness of the plaintiff, as such, the question of framing of issue on the
aspect of readiness and willingness by the learned trial Judge does not arise.
17. As seen from Ex.A.1 agreement of sale, the defendant received an
amount of Rs.50,000/- on the date of Ex.A.1 agreement of sale on
06.06.1996. As per the recitals of Ex.A.1 agreement of sale, the defendant
has to obtain certified copy of final decree, dated 09.04.1996, after engrossing
the same on N.J. stamp papers and to get Urban Land Ceiling permission on
or before 05.12.1996 for the purpose of registration of the sale deed in favour
of the plaintiff or in the name of his nominee. The recitals of Ex.A.1 agreement
of sale further reveals that in case defendant is not ready with necessary
permissions and documents within the above period, she has to pay interest
at 24% per annum on the advance amount till the date of realization. In the
said agreement, it was also specifically recited likewise the plaintiff is also
liable to pay interest on the balance sale consideration, if he is not ready to
obtain sale deed, even though the defendant is ready to execute and register
the sale deed. The fact remains the defendant has not obtained certified copy
of final decree on or before 05.12.1996 as per the terms and conditions of the
agreement, the same is admitted by the defendant in her evidence in cross
examination itself that she has received a copy of final decree in the month of
November, 1997. Though the defendant has not fulfilled her contractual
obligations, the plaintiff paid an amount of Rs.50,000/- on 24.09.1997 to the
defendant and obtained Ex.A.2 endorsement on the back of Ex.A.1 agreement
of sale after payment of Rs.50,000/- on 24.09.1997. The material on record
also reveals that the copy of the final decree was delivered to the plaintiff on
17.11.1997 by the defendant and the defendant also received an amount of
Rs.50,000/- on the same day and endorsed the same on the back of Ex.A.1
agreement of sale under Ex.A.3 endorsement. But, the defendant failed to
obtain permission from the Urban Land Ceiling authority and also
Encumbrance Certificate from the concerned Sub-Registrar and ultimately
postpone the execution of sale deed. Therefore, the above circumstances
clearly go to show that time is not an essence of contract. Since the defendant
did not comply her contractual obligations, the plaintiff is constrained to file the
suit in the year 1998.
18. The learned First Appellate Judge held in its judgment that the
plaintiff miserably failed to prove that he was ready and willing to perform his
part of the contract. In fact, the said finding is a pervasive finding. The said
finding of the learned First Appellate Judge is nothing but against the terms
and conditions mentioned in Ex.A.1 agreement of sale. As stated supra, the
time is not an essence of contract. The first condition has to be complied by
the defendant is that she has to obtain certified copy of final decree on or
before 05.12.1996 and it is also duty of the defendant to obtain Urban Land
Ceiling permission certificate and Encumbrance Certificate. But the defendant
failed to obtain certified copy of final decree on or before 05.12.1996 and she
delivered the said copy of final decree on 17.11.1997 to the plaintiff and she
has received a certified copy of the final decree in the month of November,
1997. Though the defendant has not fulfilled her contractual obligations, the
plaintiff paid an amount of Rs.50,000/- on 24.09.1997 and obtained Ex.A.2
endorsement on Ex.A.1 agreement of sale. The defendant also undertaken
under Ex.A.2 endorsement that she will obtain certified copy of final decree
after engrossing the same on N.J. stamp papers within two months from that
date and the defendant delivered the certified copy of the final decree on
17.11.1997 on which date the plaintiff paid an amount of Rs.50,000/- under
Ex.A.3 endorsement. Since the defendant failed to perform her contractual
obligations, the payment of balance sale consideration does not arise. After
complying the terms and conditions incorporated in Ex.A1 by the defendant
only, the plaintiff has to pay the balance sale consideration and to obtain a
regular registered sale deed. Here, after receipt of Rs.50,000/- on 24.09.1997,
the defendant endorsed Ex.A.2 on Ex.A.1 agreement of sale that she will
obtain certified copy of final decree and Urban Land Ceiling permission
certificate within three months from 24.09.1997 and on 17.11.1997 the
defendant delivered certified copy of final decree, the same is admitted by the
defendant in her evidence itself. Ex.A.3 endorsement is dated 17.11.1997,
but the defendant failed to obtain Urban Land Ceiling permission certificate
and encumbrance certificate. The above circumstances clearly go to show
that the plaintiff herein has paid an amount of Rs.1,50,000/- from out of
Rs.2,00,000/- to the defendant, therefore substantial amount has been paid by
the plaintiff to the defendant. The remaining balance sale consideration has to
be paid by the plaintiff is a paltry amount of Rs.50,000/-.
19. As seen from the judgment of the First Appellate Court, the learned
First Appellate Judge held in its judgment that "there is some force in the
contention of the defendant that the plaintiff is not ready and willing to pay the
balance sale consideration". The said finding is also nothing but a perverse
finding. In fact, the learned First Appellate Judge came to a conclusion that
Ex.A.1 agreement of sale is a genuine one and the learned First Appellate
Judge also believed the payment of Rs.1,50,000/- on three different occasions
paid by the plaintiff to the defendant and the remaining unpaid sale
consideration is only Rs.50,000/- which is a paltry amount. The learned First
Appellate Judge held in its judgment that in the year 1996, the yearly turnover
of the business of the plaintiff is below Rs.2,00,000/-. But the learned First
Appellate Judge failed to consider the sales tax assessment order filed by the
plaintiff for the year 1996-97 under Ex.A.11. Ex.A.12 is the assessment order
for the year 1997-98 along with refund order issued by the Commercial Tax
Department. Ex.A.11 and Ex.A.12 goes to show that the gross turnover of the
business of the plaintiff is Rs.37,51,050/- but without considering Ex.A.11 and
Ex.A.12, the learned First Appellate Judge arrived a wrong conclusion that the
turnover of the business of the plaintiff is below Rs.2,00,000/-.
20. The learned counsel for the respondent/defendant would contend
that no notice has been issued by the plaintiff prior to institution of the suit for
specific performance of agreement of sale and therefore the present suit for
specific performance of agreement of sale is not at all maintainable and he
placed a reliance of Kamala Kumar vs. Premlata Joshi and others 7 ,
wherein the Apex Court held as follows:
"It is a settled principle of law that the grant of relief of specific
performance is a discretionary and equitable relief. The material
questions, which are required to be gone into for grant of the relief of
specific performance, are:
First, whether there exists a valid and concluded contract between
the parties for sale/purchase of the suit property;
Second, whether the plaintiff has been ready and willing to
perform his part of contract and whether he is still ready and willing to
perform his part as mentioned in the contract;
Third, whether the plaintiff has, in fact, performed his part of the
contract and, if so, how and to what extent and in what manner he has
performed and whether such performance was in conformity with the
terms of the contract;
Fourth, whether it will be equitable to grant the relief of specific
performance to the plaintiff against the defendant in relation to suit
property or it will cause any kind of hardship to the defendant and, if so,
how and in what manner and the extent if such relief is eventually
granted to the plaintiff; and
Lastly, whether the plaintiff is entitled for grant of any other
alternative relief, namely, refund of earnest money etc. and, if so, on
what grounds."
7
(2019) 3 Supreme Court Cases 704
The learned counsel for the respondent/defendant also placed reliance
of Ouseph Varghese vs. Joseph Aley and others8 wherein the Apex Court
held as follows:
"A suit for specific performance has to conform to the requirements
prescribed in Forms 47 and 48 of the 1st Schedule in the Civil Procedure
Code. In a suit for specific performance it is incumbent on the plaintiff not
only to set out the agreement on the basis of which he sues in all its
details, he must go further and plead that he has applied to the
defendant specifically to perform the agreement pleaded by him but the
defendant has not done so. He must further plead that he has been and
is still ready and willing to specifically perform his part of the agreement.
Neither in the plaint nor at any subsequent stage of the suit the plaintiff
has taken those pleas. As observed by this Court in Prem Rai v. D.L.F.
Housing and Construction (P) (Ltd.) 1968 SCC OnLine SC 151 that it
is well settled that in a suit for specific performance the plaintiff should
allege that he is ready and willing to perform his part of the contract and
in the absence of such an allegation the suit is not maintainable."
The learned counsel for the respondent/defendant further placed a
reliance of J.P. Builders and another vs. A. Ramadas Rao and another 9,
wherein the Apex Court held as follows:
"It is settled law that even in the absence of specific plea by the opposite
party, it is the mandate of the statute that plaintiff has to comply
with Section 16(c) of the Specific Relief Act and when there is non-
compliance with this statutory mandate, the Court is not bound to grant
specific performance and is left with no other alternative but to dismiss
the suit. It is also clear that readiness to perform must be established
throughout the relevant points of time. "Readiness and willingness" to
perform the part of the contract has to be determined/ascertained from
the conduct of the parties."
8
(1969) 2 Supreme Court Cases 539
9
(2011 ) 1 Supreme Court Cases 429
In para No.6 of the plaint itself, the plaintiff pleaded in spite of repeated
demands, the defendant failed to obtain permission from Urban Land Ceiling
authority and the Encumbrance Certificate from the concerned Sub-Registrar
and ultimately the execution of sale deed in respect of the plaint schedule
property are being postponed till now. He further pleaded that the plaintiff is
always ready and willing to obtain the sale deed in his favour or in favour of
his nominee by paying balance sale consideration of Rs.50,000/- to the
defendant. In his evidence, the plaintiff specifically pleaded that he was
always ready and willing to pay the balance sale consideration of Rs.50,000/-
but the defendant has been postponing to fulfill the terms and conditions of the
agreement and failed to execute a registered sale deed in spite of receiving
major part of the sale consideration.
21. The material on record goes to show that the suit is instituted on
17.09.1998. Prior to filing of the suit, a publication was issued in Eenadu
Telugu daily newspaper by the plaintiff. In the said publication, it was
specifically averred about the agreement of sale said to have been executed
by the defendant on 17.11.1997 in his favour and it is also averred that
despite of repeated demands, the defendant failed to obtain permission from
Urban Land Ceiling authority and ultimately the execution of sale deed in
respect of the plaint schedule property is being postponed and the defendant
is trying to alienate the plaint schedule property to the third parties and he has
issued a caution notice to the general public including the defendant. It is an
admitted case of the defendant in the written statement itself that he is having
knowledge about the paper publication said to have been given by the plaintiff,
the same is stated in the written statement itself. In the written statement, the
defendant has also stated that he got issued a reply publication on
19.09.1997, but for the reasons best known to her, she did not choose to file
the said reply publication. The defendant having knowledge about the paper
publication given by the plaintiff failed to issue notice to the plaintiff by denying
the contents in the paper publication issued by the plaintiff by denying the
agreement of sale, but for the reasons best known to the defendant, she
remained silent.
22. A Full Bench of the Apex Court in a case of Chennadi Jalapathi
Reddy vs. Baddam Pratapa Reddy (dead) through Lrs. and another 10,
held as follows:
"Moreover, the High Court has wrongly observed that the plaintiff has not
produced any evidence to prove that he demanded the performance of
sale after the execution of the agreement of sale. The filing of a suit for
specific performance of an agreement of sale is governed by Section
16(c) of the Specific Relief Act, 1963, read with Article 54 of
the Schedule of the Limitation Act, 1963. In addition to this, Forms 47
and 48 of Appendix A of the Code of Civil Procedure, 1908 prescribe the
format of the plaint for such a suit. Thus, a plaint which seeks the relief of
specific performance of an agreement/contract must comply with all
these requirements. In the matter at hand, the plaintiff has specifically
averred in his plaint that he was ready and willing to perform his part of
the contract under the agreement of sale dated 20.04.1993. It was also
specifically stated that the plaintiff had been demanding that the first
defendant receive the balance consideration of Rs. 58,800/ and execute
a regular registered sale deed at his cost, but the first defendant had
been avoiding the specific performance of the agreement of sale. In light
of this, in our considered opinion, all the formalities which are to be
pleaded and proved by the plaintiff for getting a decree of specific
performance have been fulfilled. Moreover, there cannot be any proof of
oral demand. Be that as it may, we are satisfied from the evidence that
the plaintiff had sufficient money to pay the balance consideration to the
first defendant and was ready and willing to perform his part of the
contract".
In the case on hand, the plaintiff specifically pleaded in the plaint itself
and also in the evidence about his readiness and willingness to perform his
10
(2020) 138 ALR 242
part of the contract and he also issued a paper publication in Eenadu Telugu
daily newspaper nearly seven days prior to filing of the suit by cautioning the
general public that though the defendant executed Ex.A.1 agreement, he
intended to sell the suit schedule property to third party and in the said
publication also, the plaintiff specifically averred about the execution of
agreement of sale in his favour and also payment of consideration of
Rs.1,50,000/- to the defendant on three different occasions. The defendant
having admitted the contents of the paper publication, he remained silent and
the plaintiff to show his readiness, approached the Civil Court and filed suit for
specific performance of agreement of sale. The ratio laid down in the
aforesaid case law is squarely applicable to the present facts of the case.
23. In the case on hand also the plaintiff paid an amount of
Rs.1,50,000/- from out of Rs.2,00,000/- under three different occasions. The
defendant having received the substantial sale consideration of Rs.1,50,000/-
from out of Rs.2,00,000/-, she now cannot plead that the plaintiff is not having
sufficient capacity to pay the balance sale consideration of Rs.50,000/-.
Unfortunately, the learned First Appellate Judge came to a conclusion that the
plaintiff is not having sufficient capacity to pay the remaining paltry amount of
Rs.50,000/-. Having received the substantial amount of Rs.1,50,000/- and
having enjoyed the property by the defendant till today, now after lapse of 29
years, the defendant cannot plead that the plaintiff is not having sufficient
capacity to pay the balance sale consideration of Rs.50,000/-. As noticed
supra, both the Courts below came to a concurrent finding that the plaintiff
proved Ex.A.1 agreement of sale.
24. It was contended by the learned counsel for the appellant that the
schedule property is situated at Bhavanipuram area at Vijayawada Rural limits
and the value of the properties are abnormally increased. In the case on
hand, an agreement of sale was executed by the defendant on 06.06.1996
under Ex.A.1 agreement of sale and an amount of Rs.50,000/- was received
on the date of agreement of sale and the defendant also received another
sum of Rs.50,000/- under Ex.A.2 and she also received another sum of
Rs.50,000/- under Ex.A.3 and assured that she will obtain permission from the
Urban Land Ceiling authority and Encumbrance Certificate from the
concerned Sub-Registrar, but the defendant remained silent which leads to
issuance of paper publication by the plaintiff and also the plaintiff is
constrained to file the present suit. By giving cogent reasons, both the Courts
below held Ex.A.1 agreement of sale is proved. Though the learned First
Appellate Judge allowed the first appeal, the learned First Appellate Judge
has given a clear finding in para No.14 of its judgment that "the trial Court
rightly held Ex.A.1 is genuine one and the same was executed by the
defendant in favour of the plaintiff". The trial Court directed the plaintiff in its
judgment, dated 31.10.2012 to deposit the balance sale consideration within
two months. The plaintiff also deposited the same on 07.12.2012 before the
trial Court. The defendant received an amount of Rs.50,000/- under Ex.A.1
agreement of sale and also received Rs.50,000/- under Ex.A.2 endorsement
and also received another sum of Rs.50,000/- under Ex.A.3 endorsement on
Ex.A.1 respectively at about 25 years ago in those days, the said amount is
not a small amount, it is huge amount of Rs.1,50,000/- and defendant is also
in possession of the property.
25. The equitable discretion to grant or not to grant a relief of specific
performance would also depend upon the conduct of the parties. In the case
on hand, the defendant pleaded in the written statement itself that Ex.A.1
agreement of sale is rank forgery and the same was disbelieved by both the
Courts below and the said finding attained finality. Therefore, the defendant
approached this Court with unclean hands and suppressed material facts and
evidence and misleads the court, then such discretion should not be exercised
by refusing to grant specific performance.
26. The learned counsel for the respondent would contend that the
value of the lands are abnormally increased and the value of the property for
an extent of Ac.1-00 cents is Rs.20,00,000/-. It was suggested to P.W.1 in
cross examination by the learned counsel for the defendant that the value of
the property for an extent of Ac.1-00 cents is Rs.20,00,000/- and the same is
denied by P.W.1. It was also suggested to P.W.3 in cross examination by the
learned counsel for the defendant that the value of site per square yard is
Rs.400/-, the same is denied by P.W.3. In catena of judgments, time and
again the Apex Court held that efflux of time and escalation of price of the
property by itself cannot be a valid ground to deny the relief of specific
performance. Therefore, in my considered view the escalation of price of
property by itself is not a ground to deny the relief of specific performance.
More so, the defendant did not file any scrap of paper to show that in those
days, the schedule property is fetching more than Rs.2,00,000/-, absolutely,
no evidence is adduced by the defendant, except examining herself as D.W.1
to show that the schedule property fetches more than Rs.2,00,000/-. No
documentary evidence produced by the defendant either before the trial Court
or before the First Appellate Court to show that the schedule property fetches
more than Rs.2,00,000/- in the year 1996. The defendant having received the
substantial amount of Rs.1,50,000/- from out of Rs.2,00,000/- in those days at
about 25 years ago, now she cannot plead that the value of the property is
abnormally increased.
27. For the aforesaid reasons, I am of the considered view that the
learned First Appellate Judge came to a wrong conclusion and set aside the
decree and judgment passed by the learned trial Judge. Therefore, the decree
and judgment passed by the learned First Appellate Judge is liable to be set
aside by affirming the decree and judgment passed by the learned trial Judge.
28. In the result, the second appeal is allowed by setting aside the
decree and judgment, dated 01.03.2023 in A.S.No.7 of 2013, on the file of the
II Additional District Judge, Vijayawada and the decree and judgment, dated
31.10.2012 in O.S.No.385 of 1998, on the file of III Additional Senior Civil
Judge, Vijayawada is hereby affirmed. Considering the facts and
circumstances of the case, each party do bear their own costs in the second
appeal.
As a sequel, miscellaneous petitions, if any, pending in the Appeal shall
stand closed.
REGISTRAR
//TRUE COPY//
SECTION OFFICER
To,
2. One CC to SRI. VENKATESWARLU GADIPUDI Advocate [OPUC]
3. One CC to SRI. SODUM ANVESHA Advocate [OPUC]
4. Two CD Copies
HIGH COURT
VGKRJ
DATED:28/07/2025
ORDER
SA NO. 178 OF 2023